Mark Joseph Stern
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Mark Joseph Stern
@mjsdc.bsky.social
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Senior writer at Slate covering courts and the law. Co-host of the Amicus podcast. Dad.
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The Supreme Court was always going to swat away Kim Davis’ latest appeal, which did not even properly raise an attack on marriage equality.

But pay close attention to what the Republican-appointed justices get away with after today’s positive headlines fade. slate.com/news-and-pol...
After losing several rounds of litigation over the First Amendment issue, Davis’ lawyers decided to tack on a bigger request: Suddenly, they did not merely ask for exemptions from Obergefell; they wanted the Supreme Court to overturn it altogether. They raised this claim so late in the game that the appeals court ruled that it had been forfeited. But that did not stop them from including the frontal attack on Obergefell in their appeal to SCOTUS. The request to overturn marriage equality was tacked on to the petition like an afterthought, following the main arguments about religious freedom.
November 10, 2025 at 5:28 PM
mjsdc.bsky.social
The Supreme Court will review an objectively insane 5th Circuit decision that prohibited states from counting ballots that were mailed before Election Day but arrive shortly after. (More than half the states have such laws.)
www.supremecourt.gov/orders/court...
CERTIORARI GRANTED 24-1260 WATSON, MS SEC. OF STATE V. REPUBLICAN NAT. COMM., ET AL. The petition for a writ of certiorari i
November 10, 2025 at 2:44 PM
mjsdc.bsky.social
Justice Gorsuch argues that the Supreme Court should overturn precedent that gives Congress near-absolute power over the internal affairs of tribes. Only Justice Thomas—who typically disagrees with Gorsuch on these issues—joins him. www.supremecourt.gov/orders/court...
GORSUCH, J., dissenting SUPREME COURT OF THE UNITED STATES QUENTIN VENENO, JR. v. UNITED STATES ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT No. 24–5191. Decided November 10, 2025 The petition for a writ of certiorari is denied. JUSTICE GORSUCH, with whom JUSTICE THOMAS joins, dissenting from the denial of certiorari. Petitioner asks us to grant review in this case to reconsider United States v. Kagama, 118 U. S. 375 (1886). Kagama helped usher into our case law the theory that the federal government enjoys “plenary power” over the internal affairs of Native American Tribes. It is a theory that should make this Court blush. Not only does that notion lack any foundation in the Constitution; its roots lie instead only in archaic prejudices. This Court is responsible for Kagama, and this Court holds the power to correct it. We should not shirk from the task. As “sovereign and independent states,” Native American Tribes have governed their internal affairs “from time immemorial.” Worcester v. Georgia, 6 Pet. 515, 559–561 (1832) (internal quotation marks omitted). Among the sovereign powers Tribes have always enjoyed is the power to redress crimes involving their own peoples. Reflecting as much, a great many Tribes today have courts, not wholly unlike those found in States and counties across the country, open to render justice when one tribal member commits an offense against another on tribal land.
November 10, 2025 at 2:34 PM
mjsdc.bsky.social
New: The Supreme Court DENIES Kim Davis' request to overturn Obergefell, the marriage equality decision. No noted dissents. www.supremecourt.gov/orders/court...
DAVIS, KIM V. ERMOLD, DAVID, ET AL. The motion of Foundation for Moral Law for leave to file a brief as amicus curiae out of time is denied. The petition for a writ of certiorari is denied.
November 10, 2025 at 2:31 PM
mjsdc.bsky.social
Amy Coney Barrett and Brett Kavanaugh spoke on this very stage at this same convention exactly one day ago. Interesting that they maintain such a strong connection to a group that applauds a Trump hatchet man who boasts of going to “war” against “rogue activist judges.”
"They have a robe on but they are more political or certainly as political as the most liberal governor or D.A. ... There's a group of judges that are repeat players, and that's obviously not by happenstance, that's intentional, and it's a war, man," Blanche said. "It's happening over and over and over again. ... The system is not set up for efficiency when it comes to rogue activist judges. So, we lose days, we lose weeks, months, sometimes because of this, and that's why activist groups do what they do.
November 8, 2025 at 3:31 AM
mjsdc.bsky.social
November 8, 2025 at 1:17 AM
mjsdc.bsky.social
A long and comprehensive opinion, but this jumped out at me: The judge accused the Federal Protective Service—which was called in to suppress the protests—of lying under oath to slander the regular Portland police.😬

DOJ recently admitted that other FPS claims in this case were objectively false.
As related to the time period immediately before the President’s callout of the National Guard, this Court heard testimony from FPS officers that PPB does not respond to their requests and that FPS stopped calling PPB altogether.13 The Court does not find this testimony to be credible. FPS did call PPB for help, and PPB routinely responded to these calls for help. One example is PPB’s response to the suspicious abandoned vehicle left near the ICE facility on August 16, 2025. FPS Commander W.T. testified that the Portland Metro Explosive Disposal unit responded “really fast.” Tr. 10/30/2025 549:2–6. The FPS report from that day shows that the response included an Explosives Detection Canine Team responding on scene roughly half an hour after the vehicle was abandoned. Ex. 835 at 5. No bomb was discovered, and the vehicle was later towed. Id.
November 8, 2025 at 1:13 AM
mjsdc.bsky.social
The Trump administration tells the Supreme Court it can’t be compelled to fully fund SNAP because paying out the money would “irreparably harm” the government, while SNAP beneficiaries … *won’t* be irreparably harmed by going hungry? The balance of equities here is completely upside down.
On the other side of the ledger, respondents have not established irrep- arable harm that warrants the extraordinary relief they seek—and certainly no rea- son to not at least administratively stay the decision below to avoid a further run on SNAP funds and further chaos. There is no doubt that the absence of full SNAP benefits may harm certain Americans who rely upon them. But USDA has worked to mitigate these harms through partial payments in an effort to navigate the difficult circumstances posed by the shutdown. And while respondents have pointed to inju- ries that may follow from limited SNAP benefits, they have not explained why it is necessary to fully fund SNAP regardless of the costs elsewhere—and why it is neces- sary or equitable to jeopardize the operational integrity of a safety-net program for children so SNAP could be fully rather than partially funded.
November 8, 2025 at 12:06 AM
mjsdc.bsky.social
Jackson's dissent, joined by Sotomayor and Kagan, says the evidence showed that gender-incongruent passports led to humiliating, invasive searches of trans Americans (including strip searches) since their gender marker didn't align with their appearance. The policy is both cruel and irrational.
Thus, by preventing transgender Americans from obtaining gendor-congruent passports, the Government is doing more than just making a statement about its belief that transgender identity is “false.” The Passport Policy also in- vites the probing, and at times humiliating, additional scru- tiny these plaintiffs have experienced. Given this, it is no surprise that each of the plaintiffs credibly testified that they would experience significant anxiety and fear for their safety if required to use passports that reflect their sex assigned at birth rather than their gender identity. Absent an injunction, the plaintiffs and the classes of transgender Americans they represent are forced to make a difficult choice that no other Americans face: use gender-incongruent passports and risk harass- ment and bodily invasions, on the one hand, or avoid all ac- tivities (travel, opening a bank account, renting a car, start- ing a new job) that may require a passport, on the other. The harm to these individuals from having to make that choice—before their legal challenges have even been re- solved—is palpable.
November 6, 2025 at 8:20 PM
mjsdc.bsky.social
NEW: On the shadow docket, the Supreme Court lets Trump resume misgendering trans Americans on their passports, claiming "the government is merely attesting to a historical fact without subjecting anyone to differential treatment." All three liberals dissent. www.documentcloud.org/documents/26...
This case concerns an Executive Branch policy requiring all new passports to display an individual’s biological sex at birth. The United States District Court for the District of Massachusetts preliminarily enjoined the Government from enforcing the policy, and the First Circuit declined to stay the injunction pending appeal. The Government then filed this stay application. Applying our familiar stay fac- tors at this preliminary stage, we grant the application. Displaying passport holders’ sex at birth no more offends equal protection principles than displaying their country of birth—in both cases, the Government is merely attesting to a historical fact without subjecting anyone to differential treatment. And on this record, respondents have failed to establish that the Government’s choice to display biological sex “lack[s] any purpose other than a bare . . . desire to harm a politically unpopular group.” Trump v. Hawaii, 585 U. S. 667, 705 (2018) (internal quotation marks omitted). Nor are respondents likely to prevail in arguing that the State Department acted arbitrarily and capriciously by de- clining to depart from Presidential rules that Congress ex- pressly required it to follow. See 22 U. S. C. §211a.
November 6, 2025 at 8:16 PM
mjsdc.bsky.social
Really enjoyed these photos at the Brooklyn Museum of Claude and Alice Monet with many, many pigeons in Venice. (Also the art!)
Many pigeons with the couple Painting of Venice
November 6, 2025 at 6:57 PM
mjsdc.bsky.social
The justices are smart people. (Minus Kavanaugh.) They see that tariffs are a tax on the American people. And they may hate taxes more than they love Trump.

Full clip from @11thhourmsnbc.bsky.social: www.msnbc.com/11th-hour/wa...
November 6, 2025 at 5:45 PM
mjsdc.bsky.social
My take on today’s tariff arguments at the Supreme Court. Short version: LOL slate.com/news-and-pol...
Going into Supreme Court arguments over President Donald Trump's tariffs on Wednesday, it was genuinely difficult to guess how the justices would rule. Within minutes, that suspense vanished. The hearing was a bloodbath for the Trump administration: Six justices lined up to bash the Justice Department's defense of the tariffs, barely disguising their annoyance with the government's barrage of blustery nonsense. At the halfway point, it would've saved everyone time had the court just huddled, announced its decision from the bench, and recessed early for lunch. Trump's signature trade policy-which he expected to raise trillions of dollars for him to use as he wished-looks dead on arrival at SCOTUS. We have spent ten months waiting to see if, and when, this court would set a limit on Trump's power. Perhaps we should've guessed that its extraordinary deference to this president could be outweighed only by its hatred of taxes.
November 5, 2025 at 8:52 PM
mjsdc.bsky.social
Last night's elections are over. This morning's Supreme Court arguments in the tariffs case are about to begin at 10 a.m. IT NEVER ENDS!

There is simply no principled way for the Republican-appointed justices to uphold Trump's tariffs ... and yet, they still might! slate.com/news-and-pol...
Will the Supreme Court, which hears arguments Wednesday in what has become one of the biggest cases of the term, care? The New York Times’ Linda Greenhouse is surely correct that if the Republican-appointed justices have an ounce of principle, this will be an easy case. These justices spent Joe Biden’s presidency demanding explicit congressional authorization for any major new policy; consistent application of that principle would compel them to strike down Trump’s tariffs. Consistency, however, is not the supermajority’s strong suit when it requires a ruling against Trump. So this conflict presents the GOP appointees with something of a hack test: If they find a way to uphold the tariffs, they will all but announce that the rules they enforced so zealously against a Democratic president are suspended the moment a Republican takes the White House.
November 5, 2025 at 2:30 PM
mjsdc.bsky.social
Spotted a real National Guard patrol in Dupont Circle (left) this morning … then an individual in ill-fitting fatigues and gear (right) shortly thereafter. Is this an actual guardsman? Did not appear to be a Halloween costume. It’s increasingly difficult to tell who’s legit, which seems dangerous.
Real National Guard patrol Guy cosplaying as one
November 2, 2025 at 5:46 PM
mjsdc.bsky.social
Every year, the end of Daylight Saving Time exacerbates depression, anxiety, and other mood disorders—an uncontroversial and well-established effect. People experiencing despair are less likely to vote. "Falling back" just before Election Day is really bad for democracy! slate.com/news-and-pol...
It seems obvious if not indisputable that people in the throes of a major depressive episode or anxiety attack are less likely to vote. When the dread gremlin pokes your frontal lobe with a carving fork, isn’t filling in bubbles at a fluorescent-lit school gym (triggering!) just about the last thing you’d like to do? Even if you already have a ballot at home, do you honestly want to sit down at a table and slog through the endless list of candidates and (especially for the beleaguered Californians among us) byzantine ballot measures? No! You do not want to Google yet another inscrutable proposition about dialysis regulations. You’d rather watch The Summer I Turned Pretty and cry! As the sun sets in the middle of the afternoon and the needling fuzz of depression wraps around your brain, the very notion of expending time and energy to participate in our doomed democracy seems like a sick joke.
October 31, 2025 at 3:50 PM
mjsdc.bsky.social
When Congress pushed back the end of Daylight Saving Time in 2005, it ensured that our annual plunge in to darkness will almost always occur just before the November election.

I am CONVINCED this is voter suppression—quite possibly to the persistent benefit of Republicans! slate.com/news-and-pol...
In fairness, it does not appear that anyone responsible for our current clock-management regime intended to create this insidious side effect. The unfortunate situation arose after Congress extended DST in 2005, adding three weeks in the spring and one week in the fall. There is credible evidence that lawmakers added that bonus week in autumn at the behest of candy companies, which believed that children would consume more treats on Halloween if the sun stayed out an hour later. But this change had an unintended consequence: November elections are almost always held on the Tuesday after we set our clocks back, thrusting voters into darkness an hour earlier, confusing our circadian rhythms. You may not notice this—but perhaps, on some level, you do? Every presidential election since 2005’s DST expansion has arrived two days after the time change. Have you ever felt, walking to the polls or watching returns, that it’s oddly black, bleak, depressing outside? Are your memories of Election Days past (I’m looking at you, 2016) set against the backdrop of too-early nightfall that seems, frankly, like the end of the world? Mine certainly are. And I think this torpor is having an impact on voters that could depress turnout and swing elections.
October 31, 2025 at 3:42 PM
mjsdc.bsky.social
Happy Halloween!
Toro the parrot with many pumpkins
October 31, 2025 at 1:28 PM
mjsdc.bsky.social
Beautiful fall queen 🥲
Hound under orange fall tree
October 30, 2025 at 4:43 PM
mjsdc.bsky.social
Yes, there are Star Wars jokes.

The law might have tolerated government conduct of this sort a long time ago in a galaxy far, far away. But in the here and now, the First Amendment bars government officials from shutting down peaceful protests... www.acludc.org/app/uploads/...
4. The law might have tolerated government conduct of this sort a long time ago in a galaxy far, far away. But in the here and now, the First Amendment bars government officials from shutting down peaceful protests, and the Fourth Amendment (along with the District’s prohibition on false arrest) bars groundless seizures. 5. Both Sgt. Beck and the District’s officers violated these constitutional mandates. And the MPD officers compounded these violations by needlessly prolonging the length of Mr. O’Hara’s seizure and using excessive force by placing handcuffs tightly around his wrists and failing to loosen them after he complained. Each Defendant is therefore liable for constitutional violations under 42 U.S.C. § 1983, and the District’s officers, as well as the District itself, are liable under D.C.’s prohibition on false arrest, false imprisonment, and battery.
October 23, 2025 at 1:34 PM
mjsdc.bsky.social
The DC ACLU is suing on behalf of a man who was arrested by a National Guardsman and MPD officers for playing the Imperial March (from Star Wars) as an act of protest. www.acludc.org/app/uploads/...
Ohio National Guard member Sgt. Devon Beck was not amused by this satire. On September 11, 2025, Mr. O’Hara saw Sgt. Beck, along with several other Guard members, walking in uniform in the Logan Circle neighborhood, near the intersection of 14th and R Streets NW. Mr. O’Hara calmly walked behind the Guard members, began playing The Imperial March aloud on his phone, and started recording. In less than two minutes, Sgt. Beck turned around and threatened to call D.C. police officers to “handle” Mr. O’Hara if he persisted. Mr. O’Hara continued recording and playing the music. Sgt. Beck contacted the Metropolitan Police Department (MPD). Defendant MPD Officers Brown, Campbell, Reyes-Benigno, and Lopez Martinez came to the scene and, in essence, did what Sgt. Beck had threatened, putting Mr. O’Hara in handcuffs and preventing him from continuing his peaceful protest.
October 23, 2025 at 1:33 PM
mjsdc.bsky.social
Baltimore-area friends: I'm moderating this amazing discussion tonight about what happens when courts are ignored. You can join in person, and anyone can stream it for free! Information and registration here: greattalk.org
Image of information at the link
October 22, 2025 at 4:36 PM
mjsdc.bsky.social
This lawsuit, which demands that the House of Representatives finally seat Rep. Adelita Grijalva, has, um, fairly major implications for our democracy's survival in 2026 and beyond. storage.courtlistener.com/recap/gov.us...
This case is about whether someone duly elected to the House – who indisputably meets the constitutional qualifications of the office – may be denied her rightful office simply because the Speaker has decided to keep the House out of “regular session.” 2. If the Speaker were granted that authority, he could thwart the peoples’ choice of who should represent them in Congress by denying them representation for a significant portion of the two-year term provided by the Constitution. 3. Fortunately, the Constitution does not give that authority to the Speaker—or anyone else
October 21, 2025 at 10:15 PM
mjsdc.bsky.social
Trump Judge Ryan Nelson wants to end all judicial review over the president’s deployment of the National Guard into Democratic cities to suppress dissent.

Why that’s (a) howlingly wrong on the law and (b) astoundingly dangerous on the ground: slate.com/news-and-pol...
Before delving into why Nelson's claim is wrong, consider its radical and disturbing consequences. Trump could mobilize a state's National Guard over its governor's objections for blatantly illegal purposes, and courts would be powerless to stop him. He could send in the Guard to punish voters, protesters, and lawmakers who oppose his agenda-as he is doing in Portland and Chicago-responding to political disagreements with a militarized crackdown. He could flood Democratic cities with troops during an election to obstruct people going to the polls. He could dispatch soldiers to surround critical media outlets, sending the message that dissent will be met with force. The opportunities for repression are boundless, which is one reason why the Framers were so hostile to the idea of a standing army responsible for domestic security. In light of these dire consequences, one might expect Nelson to mount a robust defense of his belief that Trump's mobilization of the Guard "may not be reviewed by the federal courts." But he devoted a sum total of fewer than six pages to this radical claim and spent most of them mischaracterizing Supreme Court precedent.
October 21, 2025 at 8:02 PM
mjsdc.bsky.social
The dissent does an excellent job making the majority look like fools. cst.brightspotcdn.com/d9/44/ff61b3...
The district court’s factual findings, which the government does not challenge on appeal, and which are not clearly erroneous in any event, fully resolve this issue. In the two weeks leading up to the President’s September 27 social media post, there had not been a single incident of protesters’ disrupting the execution of the laws. Oregon, 2025 WL 2817646, at *10. I repeat: not a single incident for two weeks. Here are summaries from police reports for the five days preceding the President’s social media post. September 22: Approx. 7-10 people. No calls. September 23: Few people. No activity. September 24: Approx. 10 people. No calls. September 25: Approx. 20 people. No calls. September 26: Approx. 15 people. Energy low, minimal activity. No incidents. A police officer’s report from September 26 stated: “Throughout the day we observed approximately 8-15 people at any given time out front of ICE. Mostly sitting in lawn chairs and walking around.” It is hard to understand how a tiny protest causing no disruptions could possibly satisfy the standard that the President is unable to execute the laws.
October 20, 2025 at 7:59 PM