Mark Joseph Stern
@mjs_DC
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Senior writer @Slate . Courts and the law. Three birds, one dog, one baby. mjs_dc @threads .net
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Super excited for this event, and ESPECIALLY jazzed to chat with a sitting judge, Hawaii Supreme Court Justice Todd Eddins, about his opinions condemning originalism as a profoundly unjust and unworkable doctrine of judicial arrogance.
SCOTUS is using originalism—a controversial approach to interpreting the Constitution—to radically reshape the law. So what do we do about it?
Join us for Amicus Live w/
@Dahlialithwick
,
@mjs_DC
,
@SIfill_
,
@AudreLawdAMercy
& Justice Todd Eddins
@SixthandI
🎟️
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I’m haunted by this South Carolina Republican, Rep. Neal Collins, realizing that the anti-abortion bills he supported are now forcing women and girls to carry nonviable pregnancies at risk of sepsis, death, and loss of the uterus. All these outcomes were inevitable and predicted.
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Anecdote: My 85-year-old grandfather's super-Trumpy retirement community in Vero Beach, Florida has turned against Trump. Biden signs dot the lawns. My grandfather, a swing voter who considered voting for Trump, just voted for Biden. Most of his friends are voting for Biden too.
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On the morning of Jan. 6, Ginni Thomas—wife of Supreme Court Justice Clarence Thomas—endorsed the protest demanding that Congress overturn the election, then sent her “LOVE” to the demonstrators, who violently overtook the Capitol several hours later. She has not posted since.
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This is huge news. The state Supreme Court has restored the right to abortion in South Carolina, and SCOTUS cannot reverse the decision because it's based on state law.
Read the ruling here:
COLUMBIA, S.C. (AP) — South Carolina Supreme Court rules state abortion ban after cardiac activity, typically around 6 weeks, unconstitutional.
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Texas Republicans have asked a federal judge to throw out 100,000 ballots in Harris County cast through curbside voting. They drew Judge Andrew Hanen, one of the most notoriously partisan Republican judges in the entire federal judiciary. This is alarming.
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WHOA! The Supreme Court's final decision of the day is a 5–4 ruling that AFFIRMS the Voting Rights Act's protection against racial vote dilution! Roberts and Kavanaugh join the liberals. This is a HUGE surprise and a major voting rights victory.
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This story is incredibly alarming. California Republicans are allegedly creating fake drop boxes and tricking voters into depositing their ballots in them. Apparently they’re trying to prove voter fraud is real by committing actual election fraud.
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Trump got 234 federal judge confirmed. Absolutely no reason why Biden can’t meet or exceed that number. The vacancies are only growing.
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When you combine last week's decision forcing Maine to fund private religious schools with today's decision granting public school officials a right to pray on the job, you get a clear view of this Supreme Court's crusade to dismantle secular public education itself.
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Alabama killed a Muslim man tonight who wanted his imam by his side when he died. The state offered a Christian chaplain or nothing. It was one of the most clear-cut cases of religious discrimination in recent memory. And SCOTUS’ conservatives didn’t care. So he died alone.
Alabama executes Muslim inmate who lost legal challenge seeking to have a imam present in execution chamber.
#religion
#DeathPenalty
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Democratic legislators in Michigan, Pennsylvania, and Wisconsin begged Republicans to let election officials start processing and counting mail ballots well before Election Day. Republicans refused, which is why we will not know the winner of the presidential election tonight.
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WOW: By a 5–4 vote, the U.S. Supreme Court reverses a lower court order extending the deadline for mail-in ballots in Wisconsin. All four liberals dissent.
The conservative majority just effectively threw out thousands of ballots. Incredible.
Link coming soon.
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Ginni Thomas urged Mark Meadows to overturn the 2020 election by any means necessary—while her husband was ruling on cases attempting to overturn the election. A truly extraordinary level of corruption.
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ICE arrested a dreamer, revoked his DACA status, placed him in detention, and attempted to deport him, claiming he was a gang member. A federal judge just ruled that ICE was lying—brazenly, intentionally, repeatedly, and illegally.
@Slate
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I’m sure someone has already made this point. But the landmark 2003 Supreme Court case McConnell v. FEC had that name because Mitch McConnell himself filed a lawsuit against federal laws that limited corporations’ ability to spend money influencing elections.
‘Stay out of politics,’ Republican leader McConnell tells U.S. CEOs, warns of ‘consequences’
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I am still stuck on Brett Kavanaugh claiming states “want to be able to definitively announce the results of the election on election night.” No state definitively announces the results on election night. None. How can it be that Kavanaugh doesn’t understand basic election law?
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In the last five years, Gorsuch felt obliged to disclose his receipt of a fishing rod, a watercolor painting, and cowboy boots. Alito disclosed the gift of a "bronze cast of hand." But Thomas refused to disclose trips on a billionaire's private jet for his own personal pleasure.
Why can’t both opponents and supporters of Thomas’s views agree that what happened here is very wrong?
Is it the conservative position that it’s ok for people with interests before the court to give expensive gifts to the justices? Do we really have to disagree on this?
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This is incredible:
1. North Carolina GOP Sen. Alexander walks into the redistricting room and discovers that his district has been made competitive.
2. He quietly slices up the district to cut out Democratic voters.
3. He gets caught.
4. He announces his retirement.
🚨BREAKING🚨: LIVE gerrymandering happening rn in North Carolina.
You can WATCH live here:
Ever wonder how gerrymandering happens?
Follow along: this is Republican Senator Alexander entering the room:
[thread]
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Biden just fired all 10 of Trump’s appointees on the Federal Service Impasses Panel. Trump had stacked the panel with anti-labor activists who rewrote union contracts to undermine collective bargaining and strip protections from workers. Now all his holdovers are gone.
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Justice Jackson tells the Alabama solicitor general that the Framers of the 14th Amendment did NOT intend it to be “race neutral or race blind,” so taking race into account to protect minority voting rights is perfectly constitutional. Progressive originalism at work.
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Wow: DC plans to make all buses operating within the District FREE to all riders, starting in summer 2023. We'll be the first major U.S. city to have free bus service. Also adding overnight service for 12 bus lines and giving all DC residents a $100 monthly subsidy for bus/metro.
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Judge Hanen has already scheduled an emergency hearing for Monday morning—without even giving Harris County a chance to file a response brief. This, too, is extremely concerning. It looks like he may be rushing to throw out 100,000 disproportionately Democratic votes.
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Florida appeals court affirms an order prohibiting a parentless 16-year-old from terminating her pregnancy on the grounds that she has not proved she is mature enough to get an abortion. So the state will force her to have a child instead.
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Granting congressional representation to the roughly 700,000 American citizens who live in DC (including me) is not “total war.” It is a vindication of the most basic principles of democracy.
Furious Democrats are considering total war — profound changes to two branches of government, and even adding stars to the flag — if Republicans jam through a Supreme Court nominee, then lose control of the Senate.
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Not sure if people outside the legal world are grasping what a shocking and profoundly disgusting move this is, an appalling and irredeemable debasement of the Justice Department, a direct threat to the very legitimacy of an agency that is responsible for enforcing federal law
Breaking News: The Justice Department wants to take over President Trump’s defense in a defamation suit from E. Jean Carroll, who said he raped her in the 1990s.
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Simply incredible to hear Thomas and Kavanaugh questioning the sincerity of a death row inmate’s religious beliefs, accusing him of “moving the goalposts,” after unquestioningly accepting the sincerity of religious beliefs against same-sex marriage, trans people, contraception …
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A few thoughts on this story, which is both appalling and, sadly, not surprising:
1. As the article notes, federal law DOES require justices to disclose most gifts of value. It's clear that Thomas brazenly violated this law many times. We should call this what it is: corruption.
For decades, Justice Clarence Thomas has secretly accepted luxury trips from a major Republican donor, newly obtained documents and interviews show.
The extent and frequency of these apparent gifts to Thomas has no known precedent in modern SCOTUS history... 🧵👇
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Quite extraordinary that the wife of a sitting Supreme Court justice relentlessly lobbied Meadows to commit the alleged crimes that landed him in jail today.
NEW: Here is the mugshot for Mark Meadows, former Trump White House Chief of Staff.
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Alito's draft opinion explicitly criticizes Lawrence v. Texas (legalizing sodomy) and Obergefell v. Hodges (legalizing same-sex marriage). He says that, like abortion, these decisions protect phony rights that are not "deeply rooted in history."
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YES! The Supreme Court rejects ALL challenges to the Indian Child Welfare Act, leaving the statute entirely intact.
A HUGE WIN FOR TRIBES
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Today's Supreme Court case, 303 Creative, asks whether a website designer, Lorie Smith, can refuse to sell her product to same-sex couples.
But no same-sex couple has tried to buy her product. ADF sued on her behalf before anyone asked, which gives it control over the narrative.
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If Warnock wins the Georgia runoff, Schumer can pick up the pace of judicial confirmations. No more Senate Judiciary Committee deadlocks that force Democrats to waste time on floor votes for discharge petitions. 51-49 would be huge.
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I can only hope that someday in the future, anti-abortion advocates stop denying the veracity of these stories—or placing the blame on a sweeping conspiracy between pro-choice doctors, lawyers, and journalists—and amend these laws to lessen their lethality. I'm not optimistic.
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Ginni Thomas also led a campaign to identify and oust federal employees whom she deemed disloyal to Trump. She met with the president at the White House to provide him with a list of names she compiled.
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Whoa—a Washington judge just issued a dueling injunction PROHIBITING the FDA from pulling mifepristone off the market. It directly conflicts with Kacsmaryk’s.
Matthew Kacsmaryk’s decision claiming to overrule the FDA’s approval of abortion drug mifepristone—23 years late—is an appalling and indefensible abuse of power that will go down in history as one of the judiciary’s most humiliating and lawless moments.
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Two partisan federal judges are already trying to nullify thousands of Minnesota ballots under this radical theory. I am deeply concerned that Judge Hanen, too, will use it to disenfranchise 100,000 Texans on the eve of Election Day. This is frightening.
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Texas law enforcement has certified that the migrants whom Ron DeSantis trafficked to Martha's Vineyard are victims of a crime—potentially qualifying them for a U-visa, which would allow them to stay in the U.S. for four years and apply for a green card in three years.
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Ginni Thomas is often treated like a joke because she continually spouts deranged conspiracy theories. But there's nothing funny about a sitting justice's spouse endorsing a protest meant to overturn an election—hours before it became an insurrection.
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Here is Louisiana’s new fetal personhood bill—which House Republicans just voted out of committee 7–2—making abortion a crime of homicide “from the moment of fertilization” and allowing prosectors to charge patients with murder.
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George Santos, who's currently demanding stricter work requirements for Medicaid beneficiaries, is accused of fraudulently collecting unemployment benefits while earning a $120,000 salary, a felony offense.
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Wow: Judge Thomas Rice issues a new order compelling the FDA to preserve access to mifepristone in 17 states and D.C.—without any of the old obstacles—"irrespective of" the 5th Circuit's decision.
We have a direct conflict.
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Nina Totenberg reports that (1) the Chief Justice asked his colleagues to mask up out of respect for Sotomayor’s health concerns, (2) only Gorsuch refused, and (3) his refusal forced Sotomayor to participate in arguments and conference remotely.
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Republicans are racing to federal court because they have lost in state courts (so far). The Texas Supreme Court, which is entirely Republican, refused to halt curbside voting in October when the GOP claimed it was illegal.
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Democrats' two likeliest paths forward, as I see it:
1. Win in November, decline to expand the court, enact a bunch of laws, lose the Senate in 2022, watch helplessly as the Supreme Court strikes down all their new laws in 2023.
2. Expand the court and save democracy.
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Ginni Thomas, wife of Supreme Court Justice Clarence Thomas, shared images of black people who had allegedly left the Democratic Party.
They were actually models in royalty-free stock photos.
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Feinstein's refusal to retire is currently wrecking Biden's entire judicial agenda. It's erasing the advantage that Senate Democrats gained in 2022. It's grinding confirmations to a halt. It's giving GOP senators even more leverage over noms. The damage here is just astounding.
.
@SenFeinstein
's plan to temporarily swap herself out with another Democrat on the Judiciary Committee isn't going well.
Republicans are making clear they'll block it.
@SenSchumer
needs unanimous consent from the Senate to do it smoothly.
All it takes is one senator to object.
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At this moment, conservative media figures are crafting a narrative that black people attempting to disarm a white vigilante who was (1) illegally brandishing an assault weapon after (2) shooting someone in the head *deserved to get shot.*
It is racist and it is sickening.
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Been thinking about life and mortality today. I’d rather die gloriously in battle than from a virus. In a way it doesn’t matter. But it kinda does.
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Pretty ominous that Justice Gorsuch wrote 33 pages about same-sex weddings and did not once note that same-sex couples have a constitutional right to marry, or cite Obergefell.
Unclear if a single justice in the majority is willing to affirm Obergefell at this point.
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Texas Republicans are deploying the theory—recently endorsed by Thomas, Alito, Gorsuch, and Kavanaugh—that only state legislatures have authority over elections. Because the Harris County Clerk implemented drive-through voting, Republicans say all 100,000 ballots must be tossed.
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Inbox: The plaintiff AND the defendant in Obergefell v. Hodges, the marriage equality case, are teaming up to oppose Amy Coney Barrett’s confirmation to the Supreme Court.
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The NC State Board of Elections declared in a motion that it has the "authority to police which candidates should or should not be disqualified per Section 3 of the Fourteenth Amendment."
The board says it can disqualify Madison Cawthorn if he "engaged in insurrection."
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Please do not forget about the incarcerated folks who will now be compelled to carry unwanted pregnancies behind bars. They may be denied proper care, shackled while giving birth, and forced to stand by as the state takes away their baby and returns them to their cell.
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The Trump administration is refusing the recognize the citizenship of Hispanics born in Texas. This is simply astonishing (and entirely unconstitutional).
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By a 5–4 vote, the Supreme Court just allowed Texas to enforce a law that prohibits abortions after six weeks, with no exception for rape or incest. Roe v. Wade is, functionally, overturned. Justice Sotomayor all but says it.
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Brett Kavanaugh’s stunning opinion last night should be a huge story today. It cast aspersions on mail ballots. It’s riddled with errors. It endorses a theory too radical for the Bush v. Gore majority. It’s a preemptive attack on our election’s integrity.
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NEW: I spoke with Nick Wallace, the student who is not allowed to graduate from Stanford Law next week because a top member of the school's Federalist Society chapter issued a formal complaint against him for making fun of FedSoc.
@Slate
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“Joe Biden set to nominate anti-abortion activist to federal judgeship one week after Supreme Court overturns Roe v. Wade” is a news story I would not have imagined in my absolute darkest and most pessimistic moments.
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The Supreme Court’s conservative supermajority is about to dramatically expand the scope of the Second Amendment and prohibit us from protecting our communities by enacting gun safety laws through the democratic process.
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To put it mildly, this is extraordinarily disappointing and a total reversal from a position the Biden administration has taken since Day One. Wow.
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It gets barely any media coverage, but after SCOTUS shot down Biden's Plan A on student debt relief, his Department of Education immediately pivoted to a Plan B that has wiped out truly massive amounts of debt and just keeps on trucking along. It's an extraordinary achievement.
With today’s news, almost 4 million Americans have had their student debt cancelled thanks to
@POTUS
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The camera panned to the troops and everyone cheered. Then the camera panned to the Trumps and everyone booed their asses off.
It’s glorious.
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Matthew Kacsmaryk’s decision claiming to overrule the FDA’s approval of abortion drug mifepristone—23 years late—is an appalling and indefensible abuse of power that will go down in history as one of the judiciary’s most humiliating and lawless moments.
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My grandfather's top reasons for supporting Biden:
-he personally likes Biden
-he still sort of likes Trump, but is tired of him
-he thinks Trump botched the pandemic response and does not want to die of COVID-19
Just one Florida swing voter out of many, but there you have it!
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The Alabama Supreme Court has ruled that frozen, unimplanted embryos qualify as human children under state law.
IVF has long been in the crosshairs of the anti-abortion movement, and this unprecedented decision immediately imperils all IVF access throughout Alabama.
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Let me be very clear about this. Tens of thousands of Wisconsinites will not receive their absentee ballots by Election Day BECAUSE OF THE PANDEMIC, THOUGH NO FAULT OF THEIR OWN.
The U.S. Supreme Court's five conservatives just said: "Too bad. You don't get to vote."
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So long as health care providers risk prosecution and incarceration every time they terminate a pregnancy, these horror stories will just keep coming. Abortion bans have a devastating impact on maternity care.
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Make no mistake: Brett Kavanaugh and Amy Coney Barrett are responsible for ending Roe v. Wade. Chief Justice John Roberts explicitly announced that he would block Texas' law. Kavanaugh and Barrett cast the decisive votes allowing the six-week abortion ban to take effect.
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Because of Texas' abortion ban, doctors could not terminate Elizabeth Weller's failing pregnancy until she developed a severe infection. She eventually brought her "foul" discharge to the hospital to prove that the infection was starting to kill her.
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For background, Ginni Thomas is a conservative lobbyist and avid Trump supporter who campaigned for him. She also routinely spreads fringe conspiracy theories on Facebook. She recently posted: “No one, and I mean no one, has done more to harm America than the Democrats.”
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A Trump judge just BLOCKED most of Alabama’s new law criminalizing gender-affirming health care for minors, holding that the ban on puberty blockers and hormone therapy likely violates the constitutional rights of both parents and children.
Ruling here:
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Remember the Texas man who sued his wife's friends after they helped her get abortion pills? He found the pill in his wife's purse while secretly searching it, then put it back—he wanted her to take it so he could then blackmail her into staying with him.
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🚨A Stanford spokesperson tells me the school will NOT move forward with the investigation into Nicholas Wallace for making fun of the Federalist Society because he engaged in protected speech. The hold on his diploma has allegedly been lifted. Background:
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Sorry to repeat myself, but I am truly baffled by the seemingly widespread belief that a Republican-controlled Senate will ever again confirm a Democratic president's Supreme Court nominee. It's just not going to happen. Not in your lifetime, not in mine, not in anyone's.
Exactly as I wrote last week. McConnell will NOT fill a Breyer seat if he's majority leader, even if he has to wait 2 years with the seat open.
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To put this in very stark terms, the appointment of Brett Kavanaugh and Amy Coney Barrett are THE reason why the Supreme Court just effectively reinstated juvenile life without parole. Kennedy had taken huge strides toward abolishing it, and they just undid his handiwork.
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Alito is done.
That was easily the most political speech I’ve ever seen delivered by a Supreme Court justice. Wow. Same-sex marriage, guns, abortion, contraception, persecution of the Federalist Society ... he really squeezed it all in there. Yikes.
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BREAKING: Supreme Court stays order banning mifepristone. This means mifepristone remains 100% legal and accessible in states where it is legal.
Thomas and Alito dissent.
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Holy shit—Brett Kavanaugh just endorsed Rehnquist's concurrence in Bush v. Gore, which was too extreme for Kennedy or O'Connor.
This is a red alert. I can't believe he put it in a footnote. This is terrifying.
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The Electoral College allows—indeed, encourages—Trump to ignore California’s wildfire crisis because he knows he cannot win the state. He doesn’t even pretend to govern the entire country, just red states and swing states. Those suffering in blue states mean nothing to him.
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The Wisconsin Supreme Court's incoming liberal majority watching SCOTUS affirm state courts' authority to strike down congressional gerrymanders
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Notable that Kagan's dissent in the student debt case did not merely accuse the majority of misreading the Constitution. She wrote that the majority "violates the Constitution."
Justices often accuse other branches of violating the Constitution. Here, Kagan said, WE violated it.
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A lot of ostensible libertarians on this website who will invade your mentions if you defend an environmental regulation or gun safety law are silent about Georgia Republicans’ appalling new attack on Black voters. We all know why, but it’s still fairly extraordinary to witness.
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Last week I wrote about the GOP ending its tactical retreat on same-sex marriage and turbocharging its anti-gay agenda. There's a cultural element to this, too—we're seeing the party's media figures attempt to resuscitate the kind of casual homophobia that seemed to be waning.
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The wife of a sitting Supreme Court justice told Trump’s chief of staff that Biden and his family would face military tribunals at Guantanamo for “ballot fraud.”
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And this portion of Sotomayor's dissent, aimed squarely at Kavanaugh—and using his own past words against him—is one of the most savage passages she has ever written. It is also a very ominous warning.
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Try explaining to your friends in other liberal democracies that a single unelected, life-tenured, 35-year-old judge just abolished the air travel mask mandate for the entire country.
No peer nation would tolerate such a power-drunk juristocracy. Our system is badly broken.
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It's difficult to overstate how devastating Thomas' opinion is for gun control laws. This goes so, so far beyond concealed carry. The Supreme Court has effectively rendered gun restrictions presumptively unconstitutional. This is a revolution in Second Amendment law.
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Justice Engeron: The Trump family's "complete lack of contrition and remorse" for their extensive fraud and egregious financial misconduct "borders on pathological."
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By a 5–4 vote, the U.S. Supreme Court just approved one of the most brazen acts of voter suppression in modern times, allowing Wisconsin Republicans to exploit the coronavirus pandemic to suppress tens of thousands of votes. I am absolutely blown away.
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Barrett publicly supported an organization that called for the criminalization of IVF, and I distinctly recall conservative law professors screaming at me for pointing this out in 2020—because it was true, and they didn't want people to know it.
Flashback: During her confirmation hearing in 2020, Amy Coney Barrett refused to rule out criminalizing IVF.
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It’s not clear to me why so many outlets are reporting on Trump’s post-presidency ambitions without noting the non-trivial possibility that he will be convicted of bank and insurance fraud after leaving office!
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Without ever coming out and saying it, this article does a terrific job explaining that Donald Trump is very clearly, very quickly, and very publicly losing his mind.
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At arguments in Grants Pass, Sotomayor, Kagan, and Jackson are pummeling the Gibson Dunn attorney defending laws that punish homeless people who sleep outside.
Sotomayor asks: If homeless people aren't allowed to sleep anywhere, are they supposed to just "kill themselves"?
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Probably the strangest aspect of Alito’s speech, other than his attack on COVID restrictions, was his claim that people who oppose same-sex marriage get called “bigots” and this somehow threatens freedom of speech. But how?! Public criticism is not censorship! He knows this!
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Anyway, the implication of this decision is that most (all?) agency enforcement power is unconstitutional. Which, in plain English, means that the federal government can't enforce a huge swath of regulations. I mean, this is basically striking down the administrative state.
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