My symposium essay on three recent Supreme Court cases involving the interests of LGBTQ people has been published in final form. Many thanks to @lauraportuondo.bsky.social for the invitation to participate, @profjdnelson.bsky.social for the excellent comments, and the student editors at HJHLP.

Fresh off of a transatlantic flight so pardon the sleepy-posting, but some preliminary thoughts on B.P.J… Basically I think Kavanaugh tries to hide a harmful, biologically essentialist vision of sex equality into an “I care about women’s equality” rhetorical sandwich. 1/6

Today the Court denied transgender women and girls constitutional equality. I predicted that the athlete cases could take this turn after last year's decision in Skrmetti: harvardlawreview.org/wp-content/u...

1/ One important doctrinal takeaway from B.P.J. decision is narrowing of gap b/n equal-protection intermediate scrutiny and free-speech int. scrutiny. Former had been viewed as rigorous (captured by "exceedingly persuasive" phrase), while latter long viewed (in Ct's words) as "relatively lenient."

Steven Mazie@stevenmazie.bsky.social · 2mo ago

To be clear: the majority applied intermediate scrutiny, too, but found that the Idaho and West Virginia bans passed muster.

I used to say that the Court would call state action discriminatory only if it looked like Jim Crow. But increasingly, I think only actual Jim Crow counts—aka something that happened in the past. Present discrimination cannot exist in this Court’s eyes.

Nothing will ever count as racist to this court except affirmative action.

David Noll@david.noll.org · 2mo ago

Left: Justice Alito's description of the record in the TPS case Right: Former Secretary Noem

Excited to share my latest: a review of @maryrziegler.bsky.social's excellent new book "Personhood: The New Civil War over Reproduction." Read it here: papers.ssrn.com/sol3/papers....

Four years after the Dobbs decision, pregnant people in states with total abortion bans are now nearly twice as likely to die during pregnancy, childbirth, or the postpartum period.

Abortion Bans and Pregnancy-Related Care Across Physician Specialties

This qualitative study examines the association of abortion restrictions with abortion-adjacent care across medical specialties via interviews with US physicians who care for pregnant patients.

jamanetwork.com

When your commitment to religious liberty only extends to conservative culture warriors, maybe you are not actually committed to religious liberty.

Katie Buehler@bykatiebuehler.bsky.social · 2mo ago

BREAKING: A 6-3 Supreme Court rules a Rastafarian *cannot* hold Louisiana prison guards personally responsible for violating his religious rights when they forcibly shaved off his dreadlocks. #SCOTUS liberals dissent. www.supremecourt.gov/opinions/25p...

NEW: Trump and Hegseth's anti-trans military policy is based on unconstitutional animus, D.C. Circuit rules. The court's split ruling would protect current trans service members from discharge but allow the Trump admin to keep new trans recruits from joining the military during the case. Law Dork:

Trump and Hegseth's anti-trans military policy is based on unconstitutional animus, D.C. Circuit rules

The court's split ruling would protect current trans service members from discharge but allow the Trump admin to keep new trans recruits from joining the military during litigation.

lawdork.com

NEW: She Faced a Life-Threatening Miscarriage. Under Arkansas’ Abortion Ban, Even Calls to the Governor’s Office Didn’t Help. Emily Waldorf’s case shows how abortion bans have left hospital lawyers, not doctors, deciding who gets care — and how lawmakers and regulators have failed to change that.

She Faced a Life-Threatening Miscarriage. Under Arkansas’ Abortion Ban, Even Calls to the Governor’s Office Didn’t Help.

Her case shows how abortion bans have left hospital lawyers, not doctors, deciding who gets care — and how lawmakers and regulators have failed to change that.

propublica.org

As someone pointed out to me offline, this is a really funny typo in Alito’s mifepristone dissent: www.supremecourt.gov/opinions/25p...

Alabama (and other "pro-life" states') failure to provide basic medical care to incarcerated women during labor is not just cruel. It is further proof that these states care about punishing women, not protecting life.

Pregnancy Justice@pregnancyjust.bsky.social · 3mo ago

No pregnant woman should have to endure the sick and horrifying treatment that Ms. McElroy did. The law requires humane treatment and access to necessary care, yet those basic protections were denied. Our lawsuit seeks accountability for this inexcusable inaction. We are proud to stand with her.

In Louisiana and likely Alabama, actual, cast votes are going to be tossed out as officials speed ahead with new (or previously enjoined) maps. This is such an extreme use case for the Purcell principle that the court ignoring it here signifies that it was always a made-up toy, not law.

Chris Geidner@chrisgeidner.bsky.social · 4mo ago

Sotomayor: "Alabama’s congressional primary election is next week, and vacating the District Court’s injunction will immediately replace the current map with Alabama’s 2023 Redistricting Plan until the District Court acts, even though voting has already begun."

I dream of a day when the legal academy spends as much attention to congressional and other legislative reform, than they spend debating whom among us is properly critical of the Supreme Court. Reforming Congress is equally (or more) important than rethinking Supreme Court practice and authority.

Waldo Jaquith@waldo.net · 4mo ago

I wrote a paper about this in 2010, for the Richmond Journal of Law and Public Interest. Basically, low-paying, part-time legislatures serve to enshrine conflicts of interest as a best practice. We should raise pay by 10x.

Mifepristone is normally used in combination with a second drug, misoprostol, for medication abortion. However, misoprotol works on its own, and most abortion providers have misoprostol-only protocols ready to go.

(1) This is extremely bad for women in red states who rely on telemedicine abortions as a critical lifeline. (2) Nationwide injunctions are forbidden except for when judges don’t like abortion I guess?

Garnet Henderson@garnethenderson.com · 4mo ago

NEW: The ultraconservative Fifth Circuit Court of Appeals has blocked the 2023 rule change that allowed for telemedicine prescriptions of the abortion drug mifepristone—nationwide.

I think this notion that the Court’s power is justified by the need to protect minority rights underestimates how much the Court does to undermine minority rights. The VRA case is just one example. Recent religious liberty cases (which undermine women’s and LGBTQ rights) are another.

Steve Vladeck@stevevladeck.bsky.social · 4mo ago

Where I think we differ is with respect to whether disempowering the judiciary is worth getting rid of a mechanism for adequately protecting of minority rights—since it's hard to see those being protected by the other branches of government (e.g., to protect the Abrego Garcia's of the world). Right?

On this last day of classes, some exciting news: I will be moving to Brooklyn Law School in the fall! At Brooklyn, I will continue teaching Constitutional Law, Family Law, and Reproductive Rights and Justice. I will miss my UH colleagues and students, but I am very excited for this next chapter!

Same energy as the Court musing that the abortion right recognized in 1973 is no longer necessary because of advances in women’s equality…since the 1970s!

Jamal Greene@jamalgreene.bsky.social · 4mo ago

For a Court as fetishistic about “history” as this one, it is remarkable to read opinions in which phenomena like racially polarized voting and turnout gaps are treated as if they just kind of spontaneously apparate or vanish, with no relationship to law.

Please ignore that "Racism is Over" talking point undermines "there is nothing worse than considering race" talking point.

Laura Portuondo@lauraportuondo.bsky.social · 4mo ago

The Supreme Court once again here to tell you that Racism is Over

The Supreme Court once again here to tell you that Racism is Over

Today, a spring scouting report on some of the hottest new LPE and LPE-adjacent articles. Congrats to all the authors on such wonderful placements 🎉

Some of the Best New LPE and LPE-Adjacent Scholarship

A selection of worthy additions to your “important PDFs” folder.

lpeproject.org

The 5th Cir upheld a Texas law requiring posting the 10 Commandments in all public school classrooms, saying it wasn't bound by a 1980 SCOTUS ruling invalidating an identical Kentucky law. In my new column for @justiaverdict.bsky.social I explain that its stated reasons for evading precedent fail. 👇

The Fifth Circuit Overrules the Supreme Court and Nullifies the Establishment Clause

Cornell Law professor Michael C. Dorf discusses the Fifth Circuit’s decision in Nathan v. Alamo Heights Indep. School District, which disregarded Supreme Court precedent regarding the Establishment Cl...

verdict.justia.com

Apparently one of my students has been counting the number of times I said “normative values” in my con law class and the end of semester total is 151 times 😅

CA5 rules that there is no secular purpose requirement under the Establishment Clause. So when individuals act for religious reasons, their actions are treated as religious, triggering exemption claims; but when the state acts for religious reasons, its actions are ... well, nothing to see here ...

Exhibit A of how the First Amendment protects Christian nationalism, not religious liberty.

Raffi Melkonian@rmfifthcircuit.bsky.social · 4mo ago

I haven’t read it yet, but CA5 says Texas’s 10 Commandments law is constitutional, 9-8, with three Republican appointees joining the others in dissent. txvalues.org/wp-content/u...

I have a new op-ed in @slate.com today w Yvette Lindgren! We argue that abortion bans are only chilling medically necessary abortions w/o effecting traditional abortion seekers, who have found other ways to access care. Bans do not work. Check it out! slate.com/news-and-pol...

Red States Thought They Could Stop Abortions. They Ended Up Stopping Only the Lifesaving Ones.

Abortion bans are failing.

slate.com

Big abortion win in PA today - the ban on Medicaid funding is unconstitutional! AND there's a fundamental right to abortion! We won! (Though this Commonwealth Court opinion can be appealed - we'll see what our AG does.)

Bosses should not impose religion on employees: virginialawreview.org/articles/cor...

WIRED@wired.com · 4mo ago

“This has never happened before,” one government employee tells WIRED. “I have never gotten a message like this from anyone.”