3/ Judge Jones: 20% of Trump nominees to federal courts of appeals have been J. Thomas law clerks. #SCOTUS
4/ Justice Thomas to Leonard Leo "Since you are the #3 most powerful person in the world." #SCOTUS
5/ Justice Thomas: "I consider Judge Jones a judicial hero, a heroine if you want to be gender-normative." #SCOTUS
6/ Justice Thomas: "Judge Jones has the courage to make the hard decisions that your reasoning leads you to. And she has done that. It doesn't make you popular."
7/ "The Greenhouse Effect: You were more concerned about what would be said about you by Linda Greenhouse, than making the right decision. Courage is very important."
8/ Justice Thomas repeats remarks from Judge Jones's eulogy of Greg Coleman: "All of the superlatives that have been said about Greg were true. How many of us could say that."
9/ Justice Thomas: Greg Coleman was honorable, and had a decency, kindness, and honesty, a quiet tenacity, an unassuming conscientiousness and courageousness.
10/ Justice Thomas: The north star of federalism and the separation of powers is individual liberty. How, then does the administrative state compromise individual liberty? And then courts defer to those agencies under Chevron or Auer. They are like independent royal courts.
11/ Justice Thomas: We were deferring to positions by agencies in briefs before the courts. What kind of review is that? There's no there there.
12/ Leonard Leo: Magna Carta was in Washington.
Justice Thomas: Because you brought it there.
13/ Leo: What influenced your legal philosophy?
J. Thomas: Segregation. When the gov tells you that you can't drink out of a water fountain, you can't go libraries. You begin to think about use and misuse of governmental power. That led me to reading Fountainhead & Atlas Shrugged
14/ J. Thomas: J Scalia and I "had a hoot. We had a blast."
Thomas told Scalia: I'll set the edge, and you'll run to the inside. My job was to make Scalia look moderate.
15/ J. Thomas: "What exactly is stare decisis? Does it apply differently to unwritten Constitution and written Constitution. Stare decisis makes sense for unwritten legal tradition."
16/ J. Thomas: Backstone would be astonished that, with written law, we apply stare decisis the way we have, rather than referring back to written law.
17/ J. Thomas: Where does the power to issue nationwide junctions come from? Doesn't this encourage forum shopping? When you can localize effect to specific plaintiffs, where does a judge have jurisdiction beyond the parties?
18/ Justice Thomas: With stare decisis, we reflexively continue down a road, without slowing down and asking, what is the basis of this decision. I ask, where does this come from? "Evolving Standards of decency" and "Expectation of privacy." Where does this come from?
19/ J. Thomas: Recalls "expectation of privacy" was made up before oral argument, and made it into #SCOTUS jurisprudence. "It is not well thought out." Judges are obligated to do more than reflexively go along with these standards.
20/ Greg Coleman would always point out: "where does this come from?" and start from first principles.
21/ J. Thomas: Instead of saying stare decisis, we should say "quo waranto" (by what authority)? #SCOTUS
22/ I wrote a couple of the early "garbage" Dormant Commerce Clause opinions. Then I started thinking about "Where does this come from?" Then I say "I don't know where this comes from." I'm not evolving, I'm having second thoughts.
23/ J. Thomas: "What preserves our legitimacy, is we do our jobs honestly, ethically, with a moral foundation, live up to the oath we take, brick by break, we build a structure and fabric of society. Not one of us can build it up or tear it down ourselves."
24/ If judges can be honorable, we can leave the country in a better shape than we left it.
26/ J Thomas: if we had Greg Coleman's decency, work ethic, courage, we would be better off than all of this grandstanding on TV, and scoring points, and zaps here. What if Greg Coleman was Chairman of SJC. How would he treat Elena Kagan or Sonia Sotomayor. How decent would he be
27/ J. Thomas: I am a man of peace. My wife gets into trouble from time to time.
28/ FYI: C-SPAN cameras are in the back. This event should be broadcasted at some point.
1/ Judge Hanen declined to issue a preliminary injunction in the DACA case, but strongly hinted he would issue a declaration that DACA was unlawful. This decision is perhaps the least chaotic approach to tee this issue up for prompt #SCOTUS review. scribd.com/document/38749…
2/ J. Hanen found he was not bound by the District Courts that previously issued nationwide injunctions. He's right. I made this point on @lawfareblog in May. The prior cases concerned legality of recission. Texas's case concerned legality of DACA itself lawfareblog.com/dueling-cosmic…
3/ Here is the crux of Judge Hanen's ruling. Texas failed today but will succeed on the merits
Breaking: Washington and eight other states have sought a TRO and prior restraint on information posted on the internet. Regardless of your opinions on gun control, this case would set a dangerous 1st Amendment precedent. I will argue the TRO today. scribd.com/document/38510…
We have filed a response to Washington's temporary restraining order. Their prior restraint violates the First Amendment, but it also cannot succeed on the merits: licensure decisions are not subject to APA scribd.com/document/38511…
At 1:30 ET, I will also be arguing a TRO in New Jersey State Court. The NJ AG has argued that posting information on the internet is a common law nuisance. Therefore, a state court of chancery can issue a global injunction against free speech. Our brief: scribd.com/document/38511…
1/ Divided 9th Circuit panel finds that 2nd Amendment "Second Amendment encompasses the right of a responsible law-abiding citizen to carry a firearm openly for self-defense outside of the home" documentcloud.org/documents/4616… - J O'Scannlain & Ikuta in majority. J Clifton in dissent.
2/ Panel distinguishes Hawaii case from Peruta (San Diego): "Young’s claim therefore picks up where Peruta’s left off and presents an issue of first impression for this circuit: whether the Second Amendment encompasses a right to carry firearms openly in public for self-defense."
3/ Judge Reinhardt has already issued a call for rehearing en banc from the great beyond.
1/ Judge Elrod reiterates her analysis from Houston v. City of New Orleans (citing Judge Kavanaugh). The 2nd Amendment is not subject to any balancing test: strict or intermediate scrutiny