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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 38 subscribed
Jul 2 • 12 tweets • 9 min read
NEW: The Supreme Court sends a whopping EIGHT Second Amendment cases back to the lower courts for reconsideration in light of its decision in Rahimi.

Much more in today's giant orders list: supremecourt.gov/orders/courtor… The Supreme Court also sends NINE Chevron cases back down to the lower courts for reconsideration in light of Loper Bright. The disruption officially begins: supremecourt.gov/orders/courtor…
Jul 1 • 6 tweets • 3 min read
🚨The Supreme Court rules that President Trump has "absolute immunity" from criminal prosecution for all "official acts" he took while in office. The vote is 6–3 with all three liberals dissenting. supremecourt.gov/opinions/23pdf… Sotomayor, dissenting: Today's decision shields presidents from prosecution "for criminal and treasonous acts" and "makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law." supremecourt.gov/opinions/23pdf…
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Jul 1 • 4 tweets • 2 min read
The Supreme Court's second decision is NetChoice. Justice Kagan's complicated opinion for the court remands both cases to the appeals courts for the proper analysis of a First Amendment facial challenge, which, she says, they flunked the first time. supremecourt.gov/opinions/23pdf… HOWEVER: Kagan's opinion for the court holds that content moderation IS "expressively activity" and that social media platforms ARE protected by the First Amendment, no matter their size, from state intrusion. That's a major holding. supremecourt.gov/opinions/23pdf…
Jul 1 • 7 tweets • 4 min read
The Supreme Court's first decision is Corner Post. By a 6–3 vote, the majority allows plaintiffs to challenge an agency action LONG after it has been finalized. All three liberals dissent. supremecourt.gov/opinions/23pdf…
Image This article explains why today's outcome in Corner Post will be so destabilizing to the administrative state—it means that agency actions are never really safe from legal assault, even decades after they're finalized. It's a really big deal. americanprogress.org/article/corner…
Jun 28 • 6 tweets • 2 min read
🚨The Supreme Court overrules Chevron deference, wiping out 40 years of precedent that required federal courts to defer to expert opinions of federal agencies. All three liberals dissent. This is a HUGE decision. supremecourt.gov/opinions/23pdf… The Supreme Court's reversal of Chevron constitutes a major transfer of power from the executive branch to the judiciary, stripping federal agencies of significant discretion to interpret and enforce ambiguous regulations. Hard to overstate the impact of this seismic shift.
Jun 28 • 5 tweets • 2 min read
The Supreme Court's first decision is Grants Pass. By a 6–3 vote, the court holds that penalizing homeless people for sleeping outside when there is no available shelter does NOT violate the 8th Amendment. All three liberals dissent. supremecourt.gov/opinions/23pdf… The Supreme Court's decision in Grants Pass wipes out significant precedent in the 9th Circuit that had protected homeless people from punishment when they slept outside due to lack of shelter. Per Gorsuch, the court holds that penalizing such people is not "cruel and unusual."
Jun 27 • 6 tweets • 2 min read
The Supreme Court's third (but not last) decision is SEC v. Jarkesy. By a 6–3 vote, the court holds that when the SEC seeks civil penalties, the defendant is entitled to a jury trial in federal court.

This sounds technical but it's huge. supremecourt.gov/opinions/23pdf… SCOTUS' decision is Jarkesy may well hobble many federal agencies' ability to bring meaningful enforcement actions against wrongdoers. Not just the SEC. Neither the executive branch nor the judiciary have the time or resources to try all these cases before a jury. Nowhere close.
Jun 26 • 7 tweets • 3 min read
The Supreme Court's first decision of the day is Murthy v. Missouri, the social media "jawboning" case. By a 6–3 vote, the court holds that the plaintiffs lack standing.

Big win for the Biden administration. Another loss for the 5th Circuit. supremecourt.gov/opinions/23pdf…
Image Alito dissents, joined by Thomas and Gorsuch. He calls it "one of the most important free speech cases to reach this Court in years" and embraces the lower courts' claim that the Biden administration censored users of social media companies by promoting removal of disinformation.
Jun 21 • 10 tweets • 5 min read
The Supreme Court's fifth AND FINAL decision is Rahimi. By an 8–1 vote, the court upholds a federal statute that temporarily disarms individuals subjected to a domestic violence restraining order. Only Thomas dissents. supremecourt.gov/opinions/23pdf… While Roberts wrote the opinion in Rahimi, SIX justices expressed further views by writing or joining concurrences, a highly unusual number of separate concurrences. supremecourt.gov/opinions/23pdf…
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Jun 21 • 5 tweets • 3 min read
The Supreme Court second decision is Department of State v. Muñoz. By a 6–3 vote, the court holds that U.S. citizens have no constitutional liberty interest in their non-citizen spouses being admitted to the country. All three liberals dissent. supremecourt.gov/opinions/23pdf… Justice Sotomayor, in dissent, accuses the conservative supermajority of cutting back the rights guaranteed in Obergefell—the same-sex marriage decision—and of repeating "the same fatal error" it made in Dobbs. A very ominous opinion. supremecourt.gov/opinions/23pdf…
Jun 13 • 4 tweets • 2 min read
The Supreme Court's third AND FINAL decision is Starbucks v. NLRB. Justice Thomas' opinion for the court is an 8–1 defeat for labor that will make it harder to halt allegedly unfair labor practices. Only KBJ dissents. supremecourt.gov/opinions/23pdf… Justice Jackson accuses the majority of blessing an "aggrandizement of judicial power where Congress has so plainly limited the discretion of the courts," a persistent theme of her jurisprudence so far. supremecourt.gov/opinions/23pdf…
A petition for §10(j) relief serves a straightforward, but significant purpose: “to preserve the NLRB’s remedial power while the Board resolves an unfair labor practice charge.” Miller, 19 F. 3d, at 452. Today, the majority casts a district court’s decision regarding a §10(j) request as one that invokes the full sweep of a court’s traditional equitable discretion—without regard for the Board’s authority or the statutory scheme that authorizes courts to issue such interim relief in the first place. In doing so, “the Court unnecessarily and casually substitutes the chancellor’s clumsy foot fo...
Jun 13 • 5 tweets • 2 min read
The Supreme Court's first decision of the day is FDA v. AHM! Justice Kavanaugh unanimously holds that the anti-abortion plaintiffs in this case lack standing to challenge the FDA's regulations allowing access to mifepristone for medication abortion. supremecourt.gov/opinions/23pdf…
JUSTICE KAVANAUGH delivered the opinion of the Court. In 2016 and 2021, the Food and Drug Administration relaxed its regulatory requirements for mifepristone, an abortion drug. Those changes made it easier for doctors to prescribe and pregnant women to obtain mifepristone. Several pro-life doctors and associations sued FDA, arguing that FDA’s actions violated the Administrative Procedure Act. But the plaintiffs do not prescribe or use mifepristone. And FDA is not requiring them to do or refrain from doing anything. Rather, the plaintiffs want FDA to make mifepristone more difficult for othe... On first review, it looks like NO justices wrote separately to flag the Comstock Act as a potential nationwide ban on medication abortion, or perhaps all abortions. Surprising!

Justice Thomas writes separately to argue that "associational standing" is likely unconstitutional.
May 30 • 5 tweets • 2 min read
Two professors at @UTAustin, John Hatfield and @DanielBonevac, are suing for the right to penalize their students who miss class because they are obtaining an abortion out-of-state. media.aflegal.org/wp-content/upl… Hatfield and @DanielBonevac say they "do not intend to accommodate student absences from class to obtain abortions—including illegal abortions and purely elective abortions that are not medically required." They want to penalize any student who misses class for this reason.
May 23 • 8 tweets • 4 min read
The Supreme Court's second decision is Alexander v. SC NAACP. By a 6–3 vote, the majority REVERSES a district court decision that had struck down a South Carolina congressional district as a racial gerrymander. Alito writes; all three liberals dissent. supremecourt.gov/opinions/23pdf… In a solo concurrence, Clarence Thomas declares his belief that racial gerrymandering claims should be deemed non-justiciable political questions, permanently prohibiting federal courts from scrutinizing allegedly racist redistricting. supremecourt.gov/opinions/23pdf…
In my view, the Court has no power to decide these types of claims. Drawing political districts is a task for politicians, not federal judges. There are no judicially manageable standards for resolving claims about districting, and, regardless, the Constitution commits those issues exclusively to the political branches
May 16 • 6 tweets • 3 min read
The Supreme Court's third and FINAL opinion of the day is in the CFPB. In a 7–2 opinion by Justice Thomas, the court UPHOLDS the CFPB's funding structure, concluding that it does NOT violate the appropriations clause.

Alito and Gorsuch dissent. supremecourt.gov/opinions/23pdf…
JUSTICE THOMAS delivered the opinion of the Court. Our Constitution gives Congress control over the public fisc, but it specifies that its control must be exercised in a specific manner. The Appropriations Clause commands that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” Art. I, §9, cl. 7. For most federal agencies, Congress provides funding on an annual basis. This annual process forces them to regularly implore Congress to fund their operations for the next year. The Consumer Financial Protection Bureau is different. The Bureau does not ... Today's decision is a HUGE victory for the CFPB and a major defeat not only for the corporate lobby, but for the 5th Circuit, which embraced a theory so radically anti-historical and atextual that JUSTICE THOMAS wrote the opinion emphatically reversing it. supremecourt.gov/opinions/23pdf…
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...