Indiscreet Function
@homotopic.bsky.social
Jew. Mostly leftist. Queer. Most people refer to me with the pronouns "he/him" and I acquiesce in this.
Reposted by Indiscreet Function
This, by the way, shows why "it's useless, they will just go to SCOTUS on the emergency docket on everything" is wrong. These district court orders have been meaningful and durable.
December 9, 2025 at 4:14 PM
This, by the way, shows why "it's useless, they will just go to SCOTUS on the emergency docket on everything" is wrong. These district court orders have been meaningful and durable.
Reposted by Indiscreet Function
After posing an extistential threat to the legal profession earlier in 2025, it is amazing watching DOJ slow walking into oblivion the the law firm executive orders appeals. The latest: A motion for a 45-day extension of time to file a motion regarding the appellate briefing format and schedule.
December 9, 2025 at 4:14 PM
After posing an extistential threat to the legal profession earlier in 2025, it is amazing watching DOJ slow walking into oblivion the the law firm executive orders appeals. The latest: A motion for a 45-day extension of time to file a motion regarding the appellate briefing format and schedule.
What does this mean. What does the Federal Reserve Board of Governors exercise if not "executive power"--legislative power? Judicial power? I thought the whole point of the critique of Humphrey's Executor is that we don't do that anymore
December 9, 2025 at 2:08 PM
What does this mean. What does the Federal Reserve Board of Governors exercise if not "executive power"--legislative power? Judicial power? I thought the whole point of the critique of Humphrey's Executor is that we don't do that anymore
Is there anyone who thinks (1) a unitary executive is a very bad idea but (2) the vesting clause can't reasonably be interpreted any other way? This view is defensible (it's not mine but I am not very formalistic about this sort of question) but it's clearly not the view of any of the justices
December 9, 2025 at 2:03 PM
Is there anyone who thinks (1) a unitary executive is a very bad idea but (2) the vesting clause can't reasonably be interpreted any other way? This view is defensible (it's not mine but I am not very formalistic about this sort of question) but it's clearly not the view of any of the justices
I am making my way through the (prolix) Sandie Peggie decision and it's wild how poorly the claimant's lawyers treated the trans woman respondent. The court placidly recounts it and occasionally is mildly scolding
December 9, 2025 at 1:02 PM
I am making my way through the (prolix) Sandie Peggie decision and it's wild how poorly the claimant's lawyers treated the trans woman respondent. The court placidly recounts it and occasionally is mildly scolding
FIRE is a center-right org, nobody should think otherwise, and so people on the left will naturally disagree with its calls and it's reasonable to criticize it on that ground. At the same time though it's shown a lot of principled consistency in standing up for free speech by its own lights
December 9, 2025 at 12:10 PM
FIRE is a center-right org, nobody should think otherwise, and so people on the left will naturally disagree with its calls and it's reasonable to criticize it on that ground. At the same time though it's shown a lot of principled consistency in standing up for free speech by its own lights
Reposted by Indiscreet Function
What’s going on here is that DOJ only has statutory authority to intervene to enforce the Equal Protection Clause, not the Free Exercise Clause, so they are just…
December 8, 2025 at 10:23 PM
What’s going on here is that DOJ only has statutory authority to intervene to enforce the Equal Protection Clause, not the Free Exercise Clause, so they are just…
For-cause removal protection for multi-member commissions heading agencies: grave threat to liberty, gotta overthrow a hundred years of constitutional practice
Drawing districts to diminish the voting power of the opposition party's supporters: ordinary politics, who cares
Drawing districts to diminish the voting power of the opposition party's supporters: ordinary politics, who cares
December 8, 2025 at 9:08 PM
For-cause removal protection for multi-member commissions heading agencies: grave threat to liberty, gotta overthrow a hundred years of constitutional practice
Drawing districts to diminish the voting power of the opposition party's supporters: ordinary politics, who cares
Drawing districts to diminish the voting power of the opposition party's supporters: ordinary politics, who cares
I did not know what Gorsuch meant by "is the water warm" and I do not think Sauer did either
Gorsuch tried to tee up SG Sauer on a full-frontal attack on federal agencies that issue regulations but it kind of fizzled:
December 8, 2025 at 8:42 PM
I did not know what Gorsuch meant by "is the water warm" and I do not think Sauer did either
What was amazing about this in today's oral argument is that they're doing both 1 and 2 simultaneously: previous decisions that distinguished Humphreys made Humphreys a dessicated husk, but also we don't have to worry about the Fed or Article I courts
The Roberts Court two-step is always:
1. Stop overreacting; we expressly say that nothing in today's decision overrules X.
2. Remember that case from a few years ago? It turned X into a desiccated husk. So no stare decisis and X is overruled.
1. Stop overreacting; we expressly say that nothing in today's decision overrules X.
2. Remember that case from a few years ago? It turned X into a desiccated husk. So no stare decisis and X is overruled.
December 8, 2025 at 7:05 PM
What was amazing about this in today's oral argument is that they're doing both 1 and 2 simultaneously: previous decisions that distinguished Humphreys made Humphreys a dessicated husk, but also we don't have to worry about the Fed or Article I courts
Reposted by Indiscreet Function
This is the heart of the matter.
Even after years of this behavior, part of me still finds it bewildering, and deeply distressing. It was this generation of conservatives who taught me to take judicial restraint seriously.
Just, how could you?
Even after years of this behavior, part of me still finds it bewildering, and deeply distressing. It was this generation of conservatives who taught me to take judicial restraint seriously.
Just, how could you?
It is really, really hard to get your head around the raw hubris of the majority. They really will be destabilizing the operating structure of the entire U.S. government. Why? Because they believe they have a better idea about how the past century should've been done.
Justice Gorsuch: Is it possible--"just maybe"--that we're setting our sights far too low and we should be blowing up many more structures of modern government?
December 8, 2025 at 6:20 PM
This is the heart of the matter.
Even after years of this behavior, part of me still finds it bewildering, and deeply distressing. It was this generation of conservatives who taught me to take judicial restraint seriously.
Just, how could you?
Even after years of this behavior, part of me still finds it bewildering, and deeply distressing. It was this generation of conservatives who taught me to take judicial restraint seriously.
Just, how could you?
Reposted by Indiscreet Function
Supreme Court oral argument this morning, in sum
Sotomayor: you're asking us to destroy the foundation of government (derogatory)
Gorsuch: you're asking us to destroy the foundation of government (complimentary)
Sotomayor: you're asking us to destroy the foundation of government (derogatory)
Gorsuch: you're asking us to destroy the foundation of government (complimentary)
December 8, 2025 at 3:48 PM
Supreme Court oral argument this morning, in sum
Sotomayor: you're asking us to destroy the foundation of government (derogatory)
Gorsuch: you're asking us to destroy the foundation of government (complimentary)
Sotomayor: you're asking us to destroy the foundation of government (derogatory)
Gorsuch: you're asking us to destroy the foundation of government (complimentary)
One of the things the vesting clause argument implies at least as a semantic matter is that the president actually should be able to do this rulemaking directly--it's "executive power" "vested" in the president
Obviously the president can pressure depts to issue regs, but the reason they created OIRA/regulatory review is that the power to promulgate regulations is vested by law in executive agencies -- not the president -- and controlled by the Administrative Procedure Act.
Kavanaugh: But under your theory, there could be an agency where the President could not simply direct the agency to issue a particular rule?
THIS QUESTION IS "WHAT DO YOU MEAN THE PRESIDENT CANNOT LEGISLATE?"
THIS QUESTION IS "WHAT DO YOU MEAN THE PRESIDENT CANNOT LEGISLATE?"
December 8, 2025 at 6:01 PM
One of the things the vesting clause argument implies at least as a semantic matter is that the president actually should be able to do this rulemaking directly--it's "executive power" "vested" in the president
Reposted by Indiscreet Function
Sometimes, it's difficult to predict how #SCOTUS is going to rule based solely on how the oral argument goes.
And sometimes ... it's not.
And sometimes ... it's not.
December 8, 2025 at 5:36 PM
Sometimes, it's difficult to predict how #SCOTUS is going to rule based solely on how the oral argument goes.
And sometimes ... it's not.
And sometimes ... it's not.
The Federal Reserve *Board of Governors* (which is where the removal question is) is *not* quasi-private--at all. It is wholly public!
December 8, 2025 at 3:19 PM
The Federal Reserve *Board of Governors* (which is where the removal question is) is *not* quasi-private--at all. It is wholly public!
I think this GVR is reasonable and it doesn't clearly indicate how the Court will regard this issue. The Second Circuit relied on Smith and Mahmoud v. Taylor carves out a(nother) hole in Smith for children and education
The Supreme Court just set aside a 2nd Circuit decision upholding New York's requirement that all school students, public and private, obtain certain vaccinations, without any religious exemptions. It orders the 2nd Circuit to reconsider the ruling in light of SCOTUS' LGBTQ school books decision.
December 8, 2025 at 3:00 PM
I think this GVR is reasonable and it doesn't clearly indicate how the Court will regard this issue. The Second Circuit relied on Smith and Mahmoud v. Taylor carves out a(nother) hole in Smith for children and education
Unfortunately this argument proves too much. Plessy v. Ferguson was decided in 1896, the Civil Rights Cases in 1883, the Slaughter-House Cases in 1873 (!)
My thing about birthright citizenship and “originalism” is like… the jurists of Wong Kim Ark in 1898 WERE ADULTS DURING THE RATIFICATION OF THE 14TH AMENDMENT. SO THEY KNEW THE ORIGINAL PUBLIC MEANING AND TOLD YOU WHAT IT WAS IN WONG KIM ARK!!!
December 8, 2025 at 2:49 PM
Unfortunately this argument proves too much. Plessy v. Ferguson was decided in 1896, the Civil Rights Cases in 1883, the Slaughter-House Cases in 1873 (!)
One of the things about this discourse that I'm still not 100% sure I understand is that several centuries ago in 2016 the Theresa May government proposed reforming the GRA to institute self-id and the *opponents* of this proposal argued that it would affect the Equality Act exceptions
Alternatively, ask them what they think the Gender Recognition Act was supposed to accomplish? What was its legal effect? Because the SC ruling - or at least the EHRC and broader interpretation of it - seems to be of the view that the answer is "Absolutely nothing".
I know Phillips isn't going to do it but for the love of god can one journalist please ask these ministers if the judgement is consistent with what we all know the Equality Act they passed actually meant
December 7, 2025 at 11:15 PM
One of the things about this discourse that I'm still not 100% sure I understand is that several centuries ago in 2016 the Theresa May government proposed reforming the GRA to institute self-id and the *opponents* of this proposal argued that it would affect the Equality Act exceptions
Being pro-immigrant is fundamental to the American narrative in a way that I don't think really has a parallel in Europe. There was never a moment where America was (or even be imagined as) a mono-ethnic polity
In the US we're at least seeing some thermostatic backlash towards more pro-immigration positions, but the UK equivalent seems to be a ratchet effect towards "deport them all"
December 7, 2025 at 6:59 PM
Being pro-immigrant is fundamental to the American narrative in a way that I don't think really has a parallel in Europe. There was never a moment where America was (or even be imagined as) a mono-ethnic polity
If the Supreme Court repeals birthright citizenship, the Statue of Liberty should be torn down. It's not in keeping with the new regime anyway--"the brazen giant of Greek fame" seems more consistent with their philosophy
December 7, 2025 at 2:40 PM
If the Supreme Court repeals birthright citizenship, the Statue of Liberty should be torn down. It's not in keeping with the new regime anyway--"the brazen giant of Greek fame" seems more consistent with their philosophy
Ed Feser: for when you think John Finnis isn't homophobic enough
This is absolutely correct. Feserbros delenda est.
The real oppressed are the undergrad Thomists Feserposting in /r/askphilosophy and acting confused when people with PhDs from NYU or LMU or whatever are dismissive of them
December 6, 2025 at 11:00 PM
Ed Feser: for when you think John Finnis isn't homophobic enough
1. I don't think the Supreme Court will rule for Trump on birthright citizenship
2. If the Supreme Court did rule for Trump on birthright citizenship, it would be a catastrophe, both practically and jurisprudentially
3. Given 2., I am not happy with my level of confidence in 1.
2. If the Supreme Court did rule for Trump on birthright citizenship, it would be a catastrophe, both practically and jurisprudentially
3. Given 2., I am not happy with my level of confidence in 1.
December 5, 2025 at 7:31 PM
1. I don't think the Supreme Court will rule for Trump on birthright citizenship
2. If the Supreme Court did rule for Trump on birthright citizenship, it would be a catastrophe, both practically and jurisprudentially
3. Given 2., I am not happy with my level of confidence in 1.
2. If the Supreme Court did rule for Trump on birthright citizenship, it would be a catastrophe, both practically and jurisprudentially
3. Given 2., I am not happy with my level of confidence in 1.
Reposted by Indiscreet Function
I understand, as well as anyone, why folks are cynical about #SCOTUS. But even from the conservative justices' perspective, the birthright citizenship case is easy. And the Justice Department knows it, too; as I wrote in September, its bevavior in these cases has just been going through the motions:
179. Whither the Birthright Citizenship Cases?
Notwithstanding the Court's June ruling, President Trump's birthright citizenship executive order remains blocked—a broader lesson on the risks of paying attention to only one part of the news cycle.
www.stevevladeck.com
December 5, 2025 at 7:19 PM
I understand, as well as anyone, why folks are cynical about #SCOTUS. But even from the conservative justices' perspective, the birthright citizenship case is easy. And the Justice Department knows it, too; as I wrote in September, its bevavior in these cases has just been going through the motions:
"The Complaint and Petition for Rehearing En Banc both refer to these
children as experiencing “gender confusion” or “gender dysphoria.” Consistent with the plaintiffs’ pleadings and the motion-to-dismiss stage of this case, this dissent adopts that terminology."
children as experiencing “gender confusion” or “gender dysphoria.” Consistent with the plaintiffs’ pleadings and the motion-to-dismiss stage of this case, this dissent adopts that terminology."
UPDATE: The 9th Cir. will not rehear this case en banc.
Judges VanDyke and Bumatay dissent from the denial of rehearing en banc, arguing that parents have a constitutional right to prevent their trans children who run away from getting mental health care and shelter services.
Judges VanDyke and Bumatay dissent from the denial of rehearing en banc, arguing that parents have a constitutional right to prevent their trans children who run away from getting mental health care and shelter services.
I missed this important one on Friday.
9th Cir. holds anti-trans organizations and parents lack standing to challenge Washington laws providing mental health care and shelter to trans minors who run away.
cdn.ca9.uscourts.gov/datastore/op...
9th Cir. holds anti-trans organizations and parents lack standing to challenge Washington laws providing mental health care and shelter to trans minors who run away.
cdn.ca9.uscourts.gov/datastore/op...
December 5, 2025 at 7:18 PM
"The Complaint and Petition for Rehearing En Banc both refer to these
children as experiencing “gender confusion” or “gender dysphoria.” Consistent with the plaintiffs’ pleadings and the motion-to-dismiss stage of this case, this dissent adopts that terminology."
children as experiencing “gender confusion” or “gender dysphoria.” Consistent with the plaintiffs’ pleadings and the motion-to-dismiss stage of this case, this dissent adopts that terminology."
21!
Clarence Thomas and Samuel Alito received over $2.4 million in "unreported gifts" from conservative billionaires with business before the Supreme Court, funneled through an organization whose mission is to pack the SCOTUS with their right-wing judges.
Unrig the Supreme Court.
Unrig the Supreme Court.
December 5, 2025 at 3:46 PM
21!