READ THAT BACK: July Had a Few Fireworks Left

Well, what a week that was. Republicans’ seven-year drive to repeal the Affordable Care Act and replace it (or not) collapsed with a dramatic late night vote. And before that the commander-in-chief issued a three-tweet proclamation? statement? policy? (no one seems to know) banning? transgender individuals from serving in “any capacity” in the U.S. military. The mini tweet storm raised a host of questions to which no one in the White House seemed to know the answers and which the military seems to be pretty much ignoring—at least for now. And there was new White House Communications Director Anthony Scaramucci’s (and I know I’m not the only one who starts singing “Bohemian Rhapsody” every time I hear that name) profanity-ridden rant to The New Yorker…and that’s just the stuff that didn’t make the cut for this week’s Read That Back!

Legislative Stall: Aerodynamic stall—when the flow of air over an airplane’s wings doesn’t generate enough lift to keep it in the air—is bad. Planes tend to fall out of the sky when it happens. The Senate appears to be suffering from aerodynamic stall’s legislative counterpart, and it doesn’t extend just to health care. There are other agenda items languishing in the upper chamber, including three business-friendly “legal reform” bills, darlings of the U.S. Chamber of Commerce, that appear to be going precisely nowhere.

Taking Stands on Both Sides Now: The Department of Justice filed a brief in an employment case in the Second Circuit. The question before the court is whether Title VII’s sex discrimination provision protects gay and lesbian employees from workplace discrimination. The DOJ brief says no, but there are a lot of odd things going on. For one, the DOJ isn’t a party and filed the brief on its own. For two, the Equal Employment Opportunity Commission says that it is (and filed a brief saying as much), putting it at odds with DOJ. For three, four and five, apparently no career DOJ civil rights attorneys signed on. The career attorneys who did sign the brief are in the civil division that defends the government against discrimination charges, not the division that prosecutes private sector discrimination (which is what’s alleged here). And the one civil rights division attorney on the brief is already leaving the department.

Ferguson Case Moves Ahead: The civil case against Ferguson, Mo. and the police officer who shot two unarmed black men is moving forward (subscription required). The Eighth Circuit’s ruling on qualified immunity is likely to be cited in future cases, one law professor told Bloomberg BNA. The Supreme Court’s qualified immunity jurisprudence hasn’t been especially clear, so guidance like that given in this case is important. Even so, now that it’s going forward, the case may take years to resolve.

Oh What in Gay Heller : The Pink Pistols, a group that advocates the right of sexual minorities to carry a gun in self-defense, successfully overturned (subscription required) D.C.’s concealed-carry ordinance, which had required a “good reason” to get the license—although the case did split the D.C. Circuit. If you don’t know, the .gif is from To Wong Foo, Thanks for Everything, Julie Newmar, which you should all go see immediately.


  • If you thought the lackluster October Term 2016 was marked by consensus at the Supreme Court…well, okay, in general you’re right, but you’re less right (subscription required) when you talk about just the criminal docket!
  • In a potential blow to the crackdown on immigration, the Massachusetts SJC ruled (subscription required) that state officers can’t hold suspected immigration violators just because the feds ask them to—a process called “detainer.”
  • Don’t be fooled by the headline; you actually can drive drunk in your own driveway, at least in Michigan. You just shouldn’t, and may get put in jail if you do.
  • And you’ve got a First Amendment right to watch bison being herded!

And Now…Vacation!: August is traditionally vacation time in Washington. Congress is (usually) out, and in any event it’s too hot to really move outside—not that you’d know it by the weather this weekend. But it’s not just in D.C.—appeals court judges around the country are gearing up to head off, too. Is the Court Reporter psychic? No. Well, yes, but not about this. Rather, the volume of opinions in the last week suggests that judges are clearing off their desks. The Tenth Circuit published 26 opinions; the D.C. Circuit put out 417 pages worth of opinions; and the Eighth Circuit published 28 opinions, an average of two per judge, including those with senior status. Seventh Circuit Judge David F. Hamilton alone pushed out eight opinions in just four days. Meanwhile, the entire Ninth Circuit may already have left—they put out only five opinions. The Court Reporter, meanwhile, will always be here for you!