ICYMI: Twitter Threads

Decided to post links to some of my Twitter threads, because most of these threads could (and maybe should) have been blog posts.

[listed in reverse chronological order]

On the Gorsuch nomination & whether the Democrats should filibuster: 3/20/17

Explaining the legal/policy issue of selling insurance “across state lines”: 3/7/17

A primer on class actions and why we have them: 2/16/17

On the case challenging the scope of Obergefell at SCOTX: 2/13/17

On federalism: 1/30/17

On work-life “balance”: 1/11/17

On appeals, standards of review, and reversal rates: 12/20/16

Some post-election thoughts about the Electoral College: 11/21/16

On judicial vacancies left unfilled: 11/18/16

On court-packing, reverse-court-packing, and constitutional norms: 10/26/16

The thread that launched the #AppellateTwitter coffee mugs: 10/22/16

On Flannery O’Connor & wanting to be an appellate lawyer: 9/14/16

Remembering where I was on 9/11: 9/11/16

On alternative-fee arrangements for appellate work: 9/6/16

On doing pro bono to get appellate experience: 8/23/16

The now-(in)famous thread on the social function of humor: 8/9/16

On RBG expressing political opinions: 7/13/16

On whether current SCOTUS can be called a “liberal” court: 6/28/16

And last but not least, the Twitter version of my life story: 10/23/16

The Future of the Supreme Court

supreme-court-building-120628Lots of chatter out there about the future of the Supreme Court in the wake of Trump winning the presidency. Here are some of my thoughts.

First, regarding the current Court: Assuming Clinton would win the presidency, I was predicting Garland would be confirmed to fill Scalia’s vacancy and Ginsburg would retire in 2017 (maybe 2018)—with Breyer possibly retiring shortly thereafter, before Clinton’s first term was over. The Court would shift to the left with the addition of Garland, but no other shift would occur unless Clinton could win a second term. If that happened, Clinton likely would have replaced Kennedy—and maybe even Thomas—and this would have produced a second significant shift leftward. But now all of this is vapor.

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SCOTUS Recap & Predictions

TexasBarToday_TopTen_Badge_VectorGraphicThe Supreme Court has completed its October sitting, having heard arguments in 8 cases. I’ve already talked about the first 5 cases in a previous post. Read on for a recap of the other 3 cases argued this month, and for predictions about how those cases will be decided…

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SCOTUS Recap & Predictions

supreme-court-building-120628The Supreme Court kicked off its 2016 Term by hearing arguments in five criminal cases. Read on for recaps, predictions, and even a few practice tips…

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How Garland Gets Confirmed Before the Election

I haven’t checked the transcripts or anything, but I’m pretty sure President Obama’s pending Supreme Court nominee, Merrick Garland, was never mentioned at this week’s Democratic National Convention. Garland’s nomination has now been pending 135 days—longer than any Supreme Court nomination in history. And this is due to all-out, unprecedented obstruction by the Republicans. So it’s a little odd that the Democrats never mentioned Garland during their convention, and never used the Republicans’ obstructionism as a punching bag. Why wouldn’t they use the DNC stage to hit the Republicans hard on this?

I have a theory. Some people might say the Supreme Court just isn’t that important to Democratic voters; some might say too much talk about Garland or the Court would’ve reminded Republican-leaning voters who don’t want to vote for Trump of the only defensible reason to do so. But I think there might be something else going on—something more subtle and strategic.

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#VoterID at the Fifth Circuit

Tweeting about Tuesday’s oral arguments before the en banc Fifth Circuit, in the Texas voter-ID case, and a lot of great Twitter activity followed. See this thread at Storify.

5th Circuit Decisions

Criminal defendant who pleaded guilty, then appealed his conviction based on his attorney’s failure to tell him he would be deported, could not show he had been prejudiced by this failure because, (1) just before accepting his plea, the judge told him he would likely be deported, and (2) he could not show he was likely to obtain a more favorable result by going to trial. United States v. Batamula (No. 12-20630) (en banc).

Defendant successfully defeated trademark claims in what should have been characterized as an “exceptional case” under Octane Fitness LLC v. Icon Health and Fitness, Inc., 134 S. Ct. 1749 (2014); therefore, Defendant was entitled to remand for reconsideration of awarding legal fees under the Lanham Act. Baker v. DeShong (No. 14-11157).

Three officers used stun guns repeatedly on a man who was running away, then used physical restraints and stun guns again while the man was on the ground. The officers then hog-tied the man (against PD policy). When EMS paramedics arrived, the man had no pulse and wasn’t breathing. He died the next morning at the hospital. But the officers had qualified immunity because no right was violated and no unreasonable or excessive force was used. Pratt v. Harris County, Texas (No. 15-20080).

Problems of Textualism

Take the sentence “I never said she stole my money.” This sentence has at least seven possible (and different) meanings. But the changes in meaning aren’t conveyed through the text; they’re conveyed through emphasis —something you can’t discern from the text alone.

Just look at the different meaning each sentence conveys:

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“Duty” and the Constitution

df8f8073-4210-48b8-8a1f-afd643e59e7d[I posted some thoughts at HuffPo last week. I’ve revised and polished those thoughts slightly, and reposted them here.]

There’s been a lot of back and forth over “constitutional duties” lately. Smart people on both sides are digging up historical sources (some better than others) to support their arguments. One side claims the Senate has a “constitutional duty” to consider Merrick Garland’s nomination to the Supreme Court, and the other side claims no such duty exists. And this got me thinking about “duty” and the Constitution.

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