“This Impeachment Subverts the Constitution: It’s nakedly political and procedurally defective, and so far there’s no public evidence of high crimes.” David B. Rivkin Jr. and Elizabeth Price Foley have this essay online at The Wall Street Journal.
“Trump Will Face Different Twitter Rules When He Leaves Office; As a public official, Trump tweets with less risk of having his posts taken down or his account suspended; That will change on Jan. 20”: Emily Glazer of The Wall Street Journal has this report
“The Supreme Court may toss Roe. But Congress can still preserve abortion rights. A simple majority vote in the Senate would nullify the threat to reproductive health posed by the Mississippi case.” Law professor Neal Kumar Katyal has this essay online at
“Confirmed: Cunningham Will Be Federal Circuit’s First Black Judge; A 63-33 vote to confirm Perkins Coie partner also brings gender parity to the D.C.-based appellate court; It’s ‘phenomenal news’ for lawyers seeking more diversity on the federal appellate
Justice Clarence Thomas writes in his concurring opinion:
"For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell."
“Break-in at Colorado Supreme Court building caused $35 million in damage, left 3 floors unusable; Brandon Olsen, 44, is accused of setting fire inside building that triggered sprinklers to run for hours”: Shelly Bradbury of The Denver Post has this report
“Congress Should Codify Same-Sex Marriage; A measure to ensure American families are never torn asunder”: Theodore B. Olson and Kenneth B. Mehlman will have this op-ed in Tuesday’s edition of The Wall Street Journal.
“No one in this country is above the law. The Supreme Court is about to teach that lesson.” George T. Conway III has this essay online at The Washington Post.
Paraphrasing a bit here:
Justice Gorsuch to federal government's lawyer just now: "So if we reject all of your arguments for why you should win, then you would lose, correct?"
Federal govt's att'y: "Um, I guess so."
“Trump has flipped the 9th Circuit — and some new judges are causing a ‘shock wave'”: In today’s edition of The Los Angeles Times, Maura Dolan has this front page article in which new Ninth Circuit Judge Daniel P. Collins stars as the villain.
“Never Forget Wisconsin: One of the most shameful chapters in America’s long history of voter suppression.” Sherrilyn Ifill has this jurisprudence essay online at Slate.
“Kamala Harris said 19 words in 2018 that taught us all we need to know. Curious about what kind of candidate she’ll be? Her dismantling of Justice Brett Kavanaugh at his confirmation hearing is worth a rewatch.” Columnist Monica Hesse has this essay
“In and Out of the Courtroom, O’Connor Inspired a Generation of Women; The Supreme Court justice, who died at 93 on Friday, made a series of influential rulings and inspired women across a range of fields as she cemented her legacy”: Julie Bosman, Emily
On this date in “How Appealing” history: At this very moment twenty years ago, this blog came into existence, boosting your humble author from nearly total obscurity to perhaps a modicum less than nearly total obscurity.
On this happy occasion, I once
“Over 30 Trump Campaign Lawsuits Have Failed. Some Rulings Are Scathing. As President Trump continues to litigate the 2020 election, some judges have lost all patience. Here are some excerpts of their rulings.” Alan Feuer and Zach Montague of The New York
“I’ve known Amy Coney Barrett for over 20 years. Her intellect and heart are unrivaled. Yes, she is brilliant. And, yes, she is a principled, careful judge. But she also is one of the most generous people whom I have ever met.” Law professor Nicole Garnett
“Trump Hires Attorney Behind Texas Abortion Law for Supreme Court Ballot Fight; Jonathan Mitchell, ex-Texas solicitor general, hired by Trump; Backed $10,000 bounties at heart of state’s abortion law”: Erik Larson and Greg Stohr of Bloomberg News have this
Lastly, and perhaps most importantly, judges try to reserve published opinions for disputes that deserve them. The authoring judge and this panel determined that this dispute was not deserving of resolution by a published opinion -- further confirming the appeal's lack of merit.
Given today's momentous win for
@TomGoldsteinSB
as counsel of record for Google, I can't help but smile when I reminisce about the time not too long ago when the
#SCOTUS
bar as then established looked down on Tommy because of his brash approach and lack of the usual pedigree.
A Pa. Commonwealth Court judge opined late Friday that challengers to Pa.’s general election results have a likelihood of success in prevailing on their claim that the statute authorizing mail-in ballots violates Pa.’s Constitution: You can access Friday’s
“Here’s How That Letter From 65 Women Supporting Brett Kavanaugh Came Together So Quickly; A woman who has known Kavanaugh since high school told BuzzFeed News she helped organized the letter on Thursday and sent it to friends in the area following reports
To put it mildly, the prosecution ran into a buzz saw before the three-judge panel, and the panel did not consist of judicial zealots. So, Philadelphia's permitting requirement for open carry may not be on the books much longer . . . stay tuned.
Dissent of C.J. Roberts five years ago in Obergefell shared some common themes with today's Kavanaugh dissent, so it is also quite noteworthy that C.J. Roberts voted with the majority today in the Title VII cases.
Trump
#SCOTUS
short-lister Chief Judge William H. Pryor Jr wrote today's 11th Circuit opinion.
Recent 11th Circuit Trump appointee Barbara Lagoa, who was under consideration to fill RBG's vacancy, joined in the opinion, as did Obama appointee Jill Pryor.
“Lawsuit filed week after election to stop certification dismissed by 11th Circuit Court of Appeals; The suit, filed by Lin Wood, had earlier been dismissed by the U.S. District Court for the Northern District of Georgia”: Jonathan Raymond of NBC affiliate
Justice Brett M. Kavanaugh writes in his concurring opinion:
"May a State bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel. (cont'd)
The orders and statement that the Federal Circuit issued in this matter today are something I haven't seen anything like in the 20+ years that I have been running the "How Appealing" blog:
“Federal Circuit Confirms Complaint Against 95-Year-Old Judge”: Riddhi Setty of Bloomberg Law has a report that begins, “The Judicial Council for the Federal Circuit confirmed the existence of a complaint against Judge Pauline Newman by Chief Judge
Lisa Blatt's argument moments ago that Norman Lear would be "turning over in his grave right now" might be more persuasive if Mr. Lear were no longer living.
Today is exactly 20 years since I launched my solo appellate practice: I offer my heartfelt thanks to all who have turned to me for appellate assistance during that time, and in particular to those law firms that have turned to me again and again when an
Justice Gorsuch's dissenting opinion in Kemp v. USA hyphenates the word "anyway," appearing at the end of a line of text, as
an-
yway
So now we have
#SCOTUS
precedent for that horrific hyphenation.
“I mean, the best legal news source is a one-man operation out of eastern Pennsylvania, run by a solo appellate litigator named Howard Bashman. It’s called How Appealing. And he just does it as a hobby; he’s done it as a hobby for 20-plus years. I bet 90
“Eleventh Circuit Dismisses Sidney Powell and Lin Wood’s Appeal in Georgia Kraken Case: The Answer Is ‘No.'” Matt Naham has this post at Law & Crime about an unpublished opinion that the U.S. Court of Appeals for the Eleventh Circuit issued today, written
“We Can’t Rely on the Supreme Court to Guard the 2020 Election; Wisconsin’s debacle shows states would do well to resolve their own voting disputes”: Law professor Noah Feldman has this essay online at Bloomberg Opinion.
“Why is a prominent federal judge hiring a law clerk who said she hates Black people?” Columnist Ruth Marcus has this essay online at The Washington Post.
And columnist Kyle Whitmire of the Alabama Media Group has an essay titled “What have you done, Bill
Apparently Philadelphia is the lone county in Pennsylvania that requires a license for open carry of a firearm.
And, also apparently, the main authority for sustaining the law was a Pa. Supreme Court decision from the 1980s that applied some sort of rationale-basis review.
President Trump, in response to a reporter's question, apparently just said that he could have reasonably decided to build the wall more slowly than by declaring a National Emergency and that he instead opted for this approach to improve his chances of reelection.
Now that the Fifth Circuit has issued a 325-page en banc decision in a much anticipated matter, surely I am not the only one looking forward to
@RMFifthCircuit
's upcoming Twitter thread laying out exactly what happened here.
“Decision strikes key parts of Native American adoptions law”: Kevin McGill of The Associated Press has this report on today’s 325-page en banc ruling of the U.S. Court of Appeals for the Fifth Circuit.
“Trump Didn’t Just Get A New Supreme Court Justice — He’ll Get Another DC Circuit Judge, Too; Justice Brett Kavanaugh’s confirmation opens up a new seat on the powerful federal appeals court in Washington, long a springboard to the US Supreme Court”: Zoe
On May 6, 2002 — 16 years ago today — the blog “How Appealing” came into existence: Which means that, in the intervening years, I have written 15 annual posts commemorating this blog’s birthday. One of my favorites thus far was the post I wrote on this
Two must-read "against type" dissents in two days.
Eleventh Circuit Judge Kevin C. Newsom's dissent yesterday in a suppression of evidence case:
And Judge Jerry E. Smith's
@united
Covid-19 worker vaccine dissent today:
"Neil Gorsuch Is a Terrible Writer: The Supreme Court justice's prose is exhausting to read and impossible to take seriously." Mark Joseph Stern has this jurisprudence essay online at Slate.
Does the Alito/Thomas separate statement mean they would have denied relief on the merits or does it express no view of the merits?
My initial reading was "expressing no view on the merits," but now I'm seeing plenty of reporters/commentators who read it the other way.
“Durbin urges Graham to schedule confirmation hearing for Merrick Garland as AG; The incoming Senate Judiciary chair pushed for a hearing before the Trump impeachment trial starts next week”: Marianne LeVine of Politico has this report.
“Senate Confirms Public Defender Arianna Freeman to 3rd Circuit After First Vote Failed; Arianna Freeman will be the first Black woman to sit on the U.S. Court of Appeals for the Third Circuit”: Avalon Zoppo of The National Law Journal has this report.
Seventh Circuit Judge Amy Coney Barrett would hold that felon dispossession laws, which strip convicted felons of the right to bear arms, are unconstitutional under the Second Amendment as applied to man convicted of mail fraud: On Friday, Judge Barrett
Things not to say at oral argument? — “Your Honor, I know that you’re not intending to try to humiliate me by that tone.” A reader has emailed to draw to my attention the audio recording of a very interesting oral argument in a noteworthy case that the
“William Barr: ‘One Standard of Justice’; The departing attorney general talks about John Durham, Robert Mueller, Hunter Biden, Mike Flynn and the flak he’s taken from both parties.” Kimberley A. Strassel had this week’s installment of “The Weekend
In other news,
@SCOTUSblog
has unveiled its redesign and declares itself no longer a blog.
Next up,
@VolokhC
will announce that it is no longer an agreement between two or more people to commit an illegal act who have the intent to achieve the agreement's goal.
“Don’t Let the First Amendment Forget DeRay Mckesson; An activist is on trial for being an activist, and the Supreme Court needs to protect anti-police protesters”: Law professor Garrett Epps has this essay online at The Atlantic.
And in related news
“Ginni Thomas Says She Attended Jan. 6 Rally; The disclosure by the wife of Justice Clarence Thomas is likely to raise new questions about her support of efforts to overturn the 2020 election results”: Danny Hakim and Jo Becker of The New York Times have
Wiser people than I may have other thoughts, but for Kirkland & Ellis to decide it's through with handling Second Amendment cases on the very day its clients win the biggest 2nd Am. case in years -- where the outcome seemed clear once cert. was granted -- strikes me as very odd.
“Since our court’s Second Amendment intermediate scrutiny standard can reach any result one desires, I figure there is no reason why I shouldn’t write an alternative draft opinion that will apply our test in a way more to the liking of the majority of our
The person at the lectern at the Court may receive too much credit or too much blame because it surely is a group effort. But today shows that
@TomGoldsteinSB
has reached or perhaps even exceeded the destination that has always been his goal, and I congratulate him on doing so.
“Progressives seethe as Democrats largely ignore Supreme Court at convention; The next president could appoint several justices and reshape the court for a generation. But convention speakers barely mentioned it”: Sahil Kapur of NBC News has this report.
“Pa. Supreme Court allows count of 2,000 ballots challenged by Nicole Ziccarelli”: Julian Routh of The Pittsburgh Post-Gazette has this report. According to the article, “Mr. Brewster is leading Ms. Ziccarelli by just one vote — out of 131,957 cast.”
My
This was an odd part of yesterday's 5th Cir. argument.
I realize we may not want to model the style of J. Scalia's dissents, but to me these passages from appellants' briefs seem mild by comparison.
"Don't offend the judges" vs. "judges shouldn't be too easily offended."
Elrod giving Ellsworth a chance to apologize to Judge Kacsmaryk for criticizing his ruling. Saying something is an "unprecedented judicial assault" is, apparently, unprecedented and not very nice.
@RMFifthCircuit
This is when you head to the Seventh Circuit database and search the Posner and Easterbrook opinions because you know that at some point they have said everything that ever needed to be said about anything having to do with the law.
The reason why the Third Circuit issued an unpublished opinion is something that only the judges who worked on that ruling and their staffs can know with certainty right now. There are many possible explanations, and this is only one of them.
Dean Chemerimsky: In a few years, Democratic and Republican presidents will have served in office for identical durations in recent times, but R presidents during that time have appointed 15 Justices, while D presidents have appointed only 8.
“Exclusive: Justice Alito sold Bud Light stock amidst anti-trans boycott effort; Alito did not respond to questions about the sale, but its timing raises fair questions — particularly in light of other ethical questions the justice has faced over the past
A Pa. Commonwealth Court judge opined late Friday that challengers to Pa.’s general election results have a likelihood of success in prevailing on their claim that the statute authorizing mail-in ballots violates Pa.’s Constitution: You can access Friday’s
In Dobbs v. Jackson Women’s Health Org., ERA-NC Alliance seeks leave to file amicus brief addressing the leaked U.S. Supreme Court draft opinion: You can access online both the organization’s letter motion for an extension of time and the organization’s
"Todd Rasberry found himself in a jam": So begins Senior First Circuit Judge Bruce M. Selya's opinion for that court today in United States v. Rasberry.
And the opinion concludes, "Rasberry's appeal yields only bitter fruit and, therefore, the judgment of
Dean Chemerinsky is now covering
@RMFifthCircuit
's
#SCOTUS
victory in his presentation this morning
@AJEI_Summit
and Raffi isn't here to hear it. But Raffi will be at
#AJEI2020
in Austin, TX next November.
"Are there any teenagers in the locale?" is what the presiding judge of this morning's Pa. Superior Court oral argument just asked counsel for appellant who is having tremendous difficulty activating his camera for this morning's video oral argument.
From the article:
[W]hen Sidney Powell — then a Democrat — moved into private practice, she co-wrote a paper hailed as a “manual” for deciphering sometimes-arcane appellate rules, salting in advice for fellow attorneys: Never “slant” the truth to benefit a client.
“For Trump advocate Sidney Powell, a playbook steeped in conspiracy theories”: Aaron C. Davis, Josh Dawsey, Emma Brown, and Jon Swaine of The Washington Post have this report.
“Kavanaugh and the Ginsburg Standard: ‘No hints, no forecasts, no previews,’ she said in 1993, responding to a question about discrimination.” David B. Rivkin Jr. and Andrew M. Grossman have this essay online at The Wall Street Journal.
This post's author observes, "Even on a federal appeals court nearly entirely captured by Republican appointees, Fifth Circuit Court of Appeals Judge James Ho has already managed to distinguish himself as among the most zealous robed cultural warriors."
In light of Amy Coney Barrett’s insistence that judges aren’t “partisan hacks,” let’s check in real quick on what Trump’s appeals court nominees are up to these days
.
@PeteButtigieg
appears to be on my plane, which remains on the ground delayed over an hour for a maintenance issue. Make of it what you will. The good news is we are about to taxiing for take-off as the issue has finally been solved.