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Re: Donald Trump’s Devaluation Of The Federal Clerkship

Post by lavarman84 » Mon Apr 13, 2020 11:12 am

beepboopbeep wrote:Before 2016, would you have recommended a friend you care about to clerk for, e.g., O'Scannlain / Thapar / Sutton / Thompson etc, or is your anti-rec unique to Judge Walker and similar recent appointees? I understand many on this board would probably not want to clerk (or want their friends to clerk) for a socially conservative judge, but I'm not sure that's an especially new phenomenon, ABA evaluations and, uh, for some reason the establishment clause, aside.
I clerked for a socially conservative judge and would have clerked in a second for Judge Sutton. I'd have to do more research on what the others were like as bosses (I was never in the running for a feeder, so I had no reason to look deeply into them). I had no issue with Judge Walker before that opinion and would have clerked for him.
jackshunger wrote:I thought the MPRE existed so that future lawyers would understand why conflicts of interest are important, but whatever, you do you. Helps me out anyway if otherwise talented people are refusing to apply to clerkships.

An opinion from a judge cannot violate the Establishment Clause, and running through the history of Christianity in this country is hardly un-objective when describing the unconstitutionality of banning services on the most important celebration of the year for adherents.

But this conversation is getting quite political, and ignoring the point of this thread, which was to point out Joe Patrice is an idiot, so have a good one.
I can do without the ethics lecture from a law student. I can also do without you trying to explain to me what is and isn't proper. You haven't worked in chambers as a clerk and seen how the sausage gets made. It wasn't remotely necessary to the resolution of the case to launch into that discussion of Christianity, nor was it appropriate. It did not come off as objective in the slightest.

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Re: Donald Trump’s Devaluation Of The Federal Clerkship

Post by LBJ's Hair » Mon Apr 13, 2020 11:40 am

Anonymous User wrote:I mean, as a non-Christian Clerkship applicant, it's starting to become clear why some of these judges were rated "Unqualified". https://twitter.com/OrinKerr/status/1249068473780584448
I'm not religious. Agree opinion rhetorically excessive, but substantively like, it's completely correct. If this were a closer case, and we got this same opinion, maybe it'd be fair to ask whether religious bias crept in. But it wasn't, so I'm hesitant to speculate.

Although I don't really agree with the practice, sometimes judges like using the slam dunks to make a point. And banning drive-in religious services on a religious holiday while leaving drive-in liquor stores open seems almost comically unconstitutional.
Last edited by LBJ's Hair on Mon Apr 13, 2020 12:10 pm, edited 2 times in total.

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Re: Donald Trump’s Devaluation Of The Federal Clerkship

Post by jackshunger » Mon Apr 13, 2020 11:47 am

lavarman84 wrote:
beepboopbeep wrote:Before 2016, would you have recommended a friend you care about to clerk for, e.g., O'Scannlain / Thapar / Sutton / Thompson etc, or is your anti-rec unique to Judge Walker and similar recent appointees? I understand many on this board would probably not want to clerk (or want their friends to clerk) for a socially conservative judge, but I'm not sure that's an especially new phenomenon, ABA evaluations and, uh, for some reason the establishment clause, aside.
I clerked for a socially conservative judge and would have clerked in a second for Judge Sutton. I'd have to do more research on what the others were like as bosses (I was never in the running for a feeder, so I had no reason to look deeply into them). I had no issue with Judge Walker before that opinion and would have clerked for him.
jackshunger wrote:I thought the MPRE existed so that future lawyers would understand why conflicts of interest are important, but whatever, you do you. Helps me out anyway if otherwise talented people are refusing to apply to clerkships.

An opinion from a judge cannot violate the Establishment Clause, and running through the history of Christianity in this country is hardly un-objective when describing the unconstitutionality of banning services on the most important celebration of the year for adherents.

But this conversation is getting quite political, and ignoring the point of this thread, which was to point out Joe Patrice is an idiot, so have a good one.
I can do without the ethics lecture from a law student. I can also do without you trying to explain to me what is and isn't proper. You haven't worked in chambers as a clerk and seen how the sausage gets made. It wasn't remotely necessary to the resolution of the case to launch into that discussion of Christianity, nor was it appropriate. It did not come off as objective in the slightest.

You may then want the lecture from someone else repeating the same exact things I said, as you may have missed a few pointers (then again, so has the ABA): https://www.theatlantic.com/ideas/archi ... ke/601441/

His discussion of the background of the Free Exercise Clause read to me like a Roberts opinion honestly; while maybe not strictly necessary, it is clearly directed toward persuasion post-decision, which hardly takes away from the legal basis of the opinion. Judges use strong language when they feel particularly aggrieved by a nonsensical action. He himself said he wrote his decision to persuade.
https://lawandcrime.com/high-profile/ri ... g-opinion/

In any case, I haven't attended church in a decade and I'm not clutching my pearls over his language, nor is anyone else that isn't part of the legal cognoscenti.

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Re: Donald Trump’s Devaluation Of The Federal Clerkship

Post by nixy » Mon Apr 13, 2020 12:05 pm

I’ll clutch my pearls over it. I agree it’s probably substantively correct but I also agree that the language is over the top and inappropriate. As a litigator, it actually feels like very poor strategy to couch it that way. I’ll admit I’m not his audience, but I don’t think he should be playing to that specific an audience.

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Re: Donald Trump’s Devaluation Of The Federal Clerkship

Post by QContinuum » Mon Apr 13, 2020 12:25 pm

LBJ's Hair wrote:
Anonymous User wrote:I mean, as a non-Christian Clerkship applicant, it's starting to become clear why some of these judges were rated "Unqualified". https://twitter.com/OrinKerr/status/1249068473780584448
I'm not religious. Agree opinion rhetorically excessive, but substantively like, it's completely correct. If this were a closer case, and we got this same opinion, maybe it'd be fair to ask whether religious bias crept in. But it wasn't, so I'm hesitant to speculate.
But the dicta matters. The rhetoric matters. The judge certainly thought it mattered, otherwise he wouldn't have spent the time writing all of it.

Judicial rulings in the U.S. have never been just about the holdings. Dicta has been enormously influential - even more so than the actual holdings, in many cases - in buttressing the judiciary's reputation and driving future caselaw development.

And I'll add my two cents that I agree with the holding, so this isn't some kind of protest because I didn't like the outcome.
beepboopbeep wrote:Before 2016, would you have recommended a friend you care about to clerk for, e.g., O'Scannlain / Thapar / Sutton / Thompson etc, or is your anti-rec unique to Judge Walker and similar recent appointees? I understand many on this board would probably not want to clerk (or want their friends to clerk) for a socially conservative judge, but I'm not sure that's an especially new phenomenon, ABA evaluations and, uh, for some reason the establishment clause, aside.
Before 2016, I had a single name on my "do NOT clerk for this guy" list: Kozinski. I was warning folks for years about Kozinski, including back when others who had heard the same rumors were still telling folks it was "worth the risk".

I generally figure folks can decide for themselves if they're willing to clerk for a judge with sharply divergent social views. The vast majority of people are; some aren't. I certainly don't think there's a need to warn people against clerking for conservative judges.

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Re: Donald Trump’s Devaluation Of The Federal Clerkship

Post by lavarman84 » Mon Apr 13, 2020 12:27 pm

jackshunger wrote:You may then want the lecture from someone else repeating the same exact things I said, as you may have missed a few pointers (then again, so has the ABA): https://www.theatlantic.com/ideas/archi ... ke/601441/

In any case, I haven't attended church in a decade and I'm not clutching my pearls over his language, nor is anyone else that isn't part of the legal cognoscenti.
Wait, this is what you think is a disqualifying conflict of interest:
First, ABA rules require members to recuse themselves from an investigation if their “impartiality might reasonably be questioned.” In 2014, VanDyke ran for election to the Montana Supreme Court. The race was extremely divisive. According to public records, Davenport donated to VanDyke’s opponent. Based on those standards, Davenport should have recused herself. She should not have been the lead investigator.
His discussion of the background of the Free Exercise Clause read to me like a Roberts opinion honestly; while maybe not strictly necessary, it is clearly directed toward persuasion post-decision, which hardly takes away from the legal basis of the opinion. Judges use strong language when they feel particularly aggrieved by a nonsensical action. He himself said he wrote his decision to persuade.
https://lawandcrime.com/high-profile/ri ... g-opinion/
If it was his intention to persuade, he picked the wrong tact. In choosing the tact he did, he took the focus away from the law and put it onto the unnecessary parts of his opinion. It wasn't even necessary to the background of the Free Exercise Clause for him to quote scripture in the opinion. Judge Walker is a former professor. It reads more like something a professor would write than something a judge would write. Orin Kerr is a member of the Federalist Society and still felt compelled to question Judge Walker's decision.

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Re: Donald Trump’s Devaluation Of The Federal Clerkship

Post by lavarman84 » Mon Apr 13, 2020 12:35 pm

LBJ's Hair wrote:
Anonymous User wrote:I mean, as a non-Christian Clerkship applicant, it's starting to become clear why some of these judges were rated "Unqualified". https://twitter.com/OrinKerr/status/1249068473780584448
I'm not religious. Agree opinion rhetorically excessive, but substantively like, it's completely correct. If this were a closer case, and we got this same opinion, maybe it'd be fair to ask whether religious bias crept in. But it wasn't, so I'm hesitant to speculate.

Although I don't really agree with the practice, sometimes judges like using the slam dunks to make a point. And banning drive-in religious services on a religious holiday while leaving drive-in liquor stores open seems almost comically unconstitutional.
The tweet from the Mayor of Louisville after the TRO was granted is an interesting one: Might just be posturing.

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Re: Donald Trump’s Devaluation Of The Federal Clerkship

Post by lavarman84 » Mon Apr 13, 2020 12:41 pm

QContinuum wrote:Before 2016, I had a single name on my "do NOT clerk for this guy" list: Kozinski. I was warning folks for years about Kozinski, including back when others who had heard the same rumors were still telling folks it was "worth the risk".

I generally figure folks can decide for themselves if they're willing to clerk for a judge with sharply divergent social views. The vast majority of people are; some aren't. I certainly don't think there's a need to warn people against clerking for conservative judges.
There were more names on my list, but they were uniformly because I had information that the judges were bad bosses. It included both Republican and Democratic appointees. I didn't find it remotely difficult to clerk for a judge whose political views were quite different from mine. Frankly, despite our political views, we see the law in the vast, vast majority of cases quite similarly.

I think if I had clerked for a Trump appointee, the only possible area of law that might have posed a problem would be abortion. And that's not because I'm rabidly pro-choice. Rather, it's because a handful of judges (not all of whom are Trump appointees, TBF) have chosen to ignore precedent since Kennedy retired. And that wouldn't sit well with me. Then again, that isn't close to universally true. It's very much the exception, not the norm.

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Re: Donald Trump’s Devaluation Of The Federal Clerkship

Post by QContinuum » Mon Apr 13, 2020 12:51 pm

lavarman84 wrote:I think if I had clerked for a Trump appointee, the only possible area of law that might have posed a problem would be abortion. And that's not because I'm rabidly pro-choice. Rather, it's because a handful of judges (not all of whom are Trump appointees, TBF) have chosen to ignore precedent since Kennedy retired. And that wouldn't sit well with me. Then again, that isn't close to universally true. It's very much the exception, not the norm.
Same-sex marriage, too, though agree that it's not all Trump appointees who are doing this.

As I previously stated ITT, the thing with the Trump appointees is that most of them aren't really Trump appointees so much as FedSoc appointees. In the main, with a few exceptions, they're highly qualified lawyers, though extremely socially conservative. So, in the main, they don't actually differ that much from the typical Bush appointee.
lavarman84 wrote:There were more names on my list, but they were uniformly because I had information that the judges were bad bosses. It included both Republican and Democratic appointees.
My view back then, which was pretty mainstream at the time, was 1) clerks basically ought to accept the risk of clerking for a bad boss, and 2) even clerkships with bad bosses are still, on net, helpful career-wise, so worth the "price" of an awful year in chambers.

My view has since evolved, thanks in large part to #MeToo.

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Re: Donald Trump’s Devaluation Of The Federal Clerkship

Post by beepboopbeep » Mon Apr 13, 2020 1:27 pm

QContinuum wrote: Before 2016, I had a single name on my "do NOT clerk for this guy" list: Kozinski. I was warning folks for years about Kozinski, including back when others who had heard the same rumors were still telling folks it was "worth the risk".

I generally figure folks can decide for themselves if they're willing to clerk for a judge with sharply divergent social views. The vast majority of people are; some aren't. I certainly don't think there's a need to warn people against clerking for conservative judges.
Fair enough. The zealot language suggested otherwise. My clerkship adviser suggested Kozinski at one point. I did not apply.

Re: Judge Walker, I didn't pick up on this, but Josh Blackman speculated that one of the footnotes in the opinion was a cryptic thanks to two of his clerks: https://reason.com/2020/04/12/courts-sh ... not-there/ (Whether that's really a favor to them is not a question I'd answer.)

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Re: Donald Trump’s Devaluation Of The Federal Clerkship

Post by lavarman84 » Mon Apr 13, 2020 4:01 pm

beepboopbeep wrote:
QContinuum wrote: Before 2016, I had a single name on my "do NOT clerk for this guy" list: Kozinski. I was warning folks for years about Kozinski, including back when others who had heard the same rumors were still telling folks it was "worth the risk".

I generally figure folks can decide for themselves if they're willing to clerk for a judge with sharply divergent social views. The vast majority of people are; some aren't. I certainly don't think there's a need to warn people against clerking for conservative judges.
Fair enough. The zealot language suggested otherwise. My clerkship adviser suggested Kozinski at one point. I did not apply.

Re: Judge Walker, I didn't pick up on this, but Josh Blackman speculated that one of the footnotes in the opinion was a cryptic thanks to two of his clerks: https://reason.com/2020/04/12/courts-sh ... not-there/ (Whether that's really a favor to them is not a question I'd answer.)
If even Josh Blackman thinks writing the opinion that way was an error, I rest my case. :wink:

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Re: Donald Trump’s Devaluation Of The Federal Clerkship

Post by mjb447 » Mon Apr 13, 2020 4:32 pm

Basically agree with most of the takes here - the limited constitutional analysis is probably right, but the rest was abrasive and mostly unnecessary (maybe entirely, if the mayor is to be believed). I hope nothing this bad ever made it out of any of my chambers.

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Re: Donald Trump’s Devaluation Of The Federal Clerkship

Post by cavalier1138 » Tue Apr 14, 2020 12:32 pm

I was happier before I knew that opinion had been published.

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Re: Donald Trump’s Devaluation Of The Federal Clerkship

Post by cavalier1138 » Tue Apr 14, 2020 12:52 pm

It's like Heller all over again, but with a less skillful writer. Here are a few of the absolutely batshit (and objectively incorrect) claims he felt the need to include in the opinion:

- "The Pilgrims were heirs to a long line of persecuted Christians, including some punished with prison or worse for the crime of celebrating Easter – and an even longer line of persecuted peoples of more ancient faiths." For those of you playing along at home, he cites to Tacitus for his "prison" claim, which is impressive, considering Tacitus lived at least a century before the first historical records of Christians marking any observance of Jesus' death around the time of Passover. But my favorite bit is the oft-repeated bullshit of the Puritans fleeing persecution; in reality, they were fleeing their inability to force their insane beliefs on an English church they viewed as too Catholic. At least it's a fitting mistake to start off this travesty.

-"It was not long ago, for example, that the government told the Supreme Court it can prohibit a church from choosing its own minister; force religious business owners to buy pharmaceuticals they consider abortion-inducing; and conscript nuns to provide birth control." I don't even know where to start with this bullshit.

-"On Sunday, tomorrow, Plaintiff On Fire Christian Center wishes to hold an Easter service,as Christians have done for two thousand years." Again, the judge seems to think that Christianity sprung, fully formed, from Jesus's risen corpse. It took a few centuries for them to even agree on what the church was, much less celebrate uniform holidays.

And let's not forget that his entire opinion is based on the complete invention that an in-person Easter service is a dogmatic requirement of Protestant Christianity. You know the only church where you actually have to show up in person to take part in rituals that are supposed to determine the fate of your immortal soul? The Catholic Church. And guess which church isn't fucking complaining about social distancing? There is no Protestant sect that requires in-person interaction with anyone, much less church attendance, for salvation. The church-plaintiff in this case is from the same tradition that spawned televangelism.

TL;DR Christian conservatives are the worst when it comes to knowing the history of their own religion.

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Re: Donald Trump’s Devaluation Of The Federal Clerkship

Post by QContinuum » Tue Apr 14, 2020 3:35 pm

cavalier1138 wrote:-"It was not long ago, for example, that the government told the Supreme Court it can prohibit a church from choosing its own minister; force religious business owners to buy pharmaceuticals they consider abortion-inducing; and conscript nuns to provide birth control." I don't even know where to start with this bullshit.
Thanks, cav, for taking the hit by wading through that opinion in depth. I couldn't bring myself to do that.

The above is ridiculous and honestly should lead to a bar complaint leading to discipline. The judge knows, or should know, better than to make up false, inflammatory claims like the above. I'd like to see any evidence the government ever told SCOTUS that it could "prohibit a church from choosing its own minister" or "conscript nuns to provide birth control" or even "force religious business owners to buy [certain birth control]". These claims are outright made-up and it was reckless and irresponsible for a sitting federal judge to include those falsehoods in an official opinion.

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Re: Donald Trump’s Devaluation Of The Federal Clerkship

Post by Necho2 » Tue Apr 14, 2020 4:10 pm


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Re: Donald Trump’s Devaluation Of The Federal Clerkship

Post by LBJ's Hair » Tue Apr 14, 2020 4:38 pm

I find this pretty unconvincing.

The state claims it has the power to enforce its guidance against drive-in religious services, requested people not hold them, and has used law enforcement to compel people to follow social distancing measures in the past.

To me, seems like the plaintiffs should comfortably have had standing to challenge the law as applied in this context, even if here we take as given that Louisville's mayor was just asking them to follow his rules. (I'm not sure that's true.) The guidance, and threat of future enforcement, would be sufficient to create an injury under Lujan or Spokeo or w/e.

If you want to argue this is moot, then ok, but it seems like it should fall under the old FedCourts "capable of repetition, yet evading review" exception. Otherwise the state could prevent this from ever being challenged by simply claiming it had no intention to "enforce" in the specific circumstance every time a lawsuit challenging the guidance was brought, yet keep it on the books to deter the services, no?

Open to being wrong, and maybe I'm missing something, but can anyone imagine these standing arguments being taken seriously if we were talking about a drive-in political rally? I can't.

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Re: Donald Trump’s Devaluation Of The Federal Clerkship

Post by nixy » Tue Apr 14, 2020 5:00 pm

I didn’t think it was a very well-argued answer, in part because I think the mayor’s statements were fairly ambiguous. Parts were very much “please don’t do this” but parts were much more “you can’t do this.” So it’s hard to say that the city clearly wasn’t going to enforce a ban. I can take the mayor at his word that he didn’t intend to ban church gatherings, but I can also see hearing him otherwise.

(That said, the order was still ridiculous.)

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Re: Donald Trump’s Devaluation Of The Federal Clerkship

Post by LBJ's Hair » Tue Apr 14, 2020 5:09 pm

nixy wrote:I didn’t think it was a very well-argued answer, in part because I think the mayor’s statements were fairly ambiguous. Parts were very much “please don’t do this” but parts were much more “you can’t do this.” So it’s hard to say that the city clearly wasn’t going to enforce a ban. I can take the mayor at his word that he didn’t intend to ban church gatherings, but I can also see hearing him otherwise.

(That said, the order was still ridiculous.)
For sure, order was way, way over-the-top

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Re: Donald Trump’s Devaluation Of The Federal Clerkship

Post by mjb447 » Tue Apr 14, 2020 6:08 pm

nixy wrote:I didn’t think it was a very well-argued answer, in part because I think the mayor’s statements were fairly ambiguous. Parts were very much “please don’t do this” but parts were much more “you can’t do this.” So it’s hard to say that the city clearly wasn’t going to enforce a ban. I can take the mayor at his word that he didn’t intend to ban church gatherings, but I can also see hearing him otherwise.

(That said, the order was still ridiculous.)
I read the remarks that way too - I accept that at least some of the remarks were unscripted, but it was still wildly unclear if you violate the law by holding the service. I think I agree with the take that a brief telephonic conference could have helped immensely. At worst, you confirm the state of play. At best, you might be able to get a representation of no enforcement from the mayor that you memorialize in a one-page order.

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Re: Donald Trump’s Devaluation Of The Federal Clerkship

Post by cavalier1138 » Tue Apr 14, 2020 6:35 pm

LBJ's Hair wrote:
nixy wrote:I didn’t think it was a very well-argued answer, in part because I think the mayor’s statements were fairly ambiguous. Parts were very much “please don’t do this” but parts were much more “you can’t do this.” So it’s hard to say that the city clearly wasn’t going to enforce a ban. I can take the mayor at his word that he didn’t intend to ban church gatherings, but I can also see hearing him otherwise.

(That said, the order was still ridiculous.)
For sure, order was way, way over-the-top
Agreed. I don't understand why the mayor's office didn't frame this as an extension of the neutral order to not have any gatherings like this. I get that they were primarily concerned about church services because that was the only group trying to pull this kind of stunt, but they could have issued an order saying "No one can have gatherings of [X] or more people, even if they promise everyone's going to stay inside their cars and 6 feet apart."

And yeah, tackling this as a standing issue is a little much. Enforcement seemed pretty imminent when the suit was filed.

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Re: Donald Trump’s Devaluation Of The Federal Clerkship

Post by lavarman84 » Wed Apr 15, 2020 2:15 am

cavalier1138 wrote:It's like Heller all over again, but with a less skillful writer. Here are a few of the absolutely batshit (and objectively incorrect) claims he felt the need to include in the opinion:

- "The Pilgrims were heirs to a long line of persecuted Christians, including some punished with prison or worse for the crime of celebrating Easter – and an even longer line of persecuted peoples of more ancient faiths." For those of you playing along at home, he cites to Tacitus for his "prison" claim, which is impressive, considering Tacitus lived at least a century before the first historical records of Christians marking any observance of Jesus' death around the time of Passover. But my favorite bit is the oft-repeated bullshit of the Puritans fleeing persecution; in reality, they were fleeing their inability to force their insane beliefs on an English church they viewed as too Catholic. At least it's a fitting mistake to start off this travesty.

-"It was not long ago, for example, that the government told the Supreme Court it can prohibit a church from choosing its own minister; force religious business owners to buy pharmaceuticals they consider abortion-inducing; and conscript nuns to provide birth control." I don't even know where to start with this bullshit.

-"On Sunday, tomorrow, Plaintiff On Fire Christian Center wishes to hold an Easter service,as Christians have done for two thousand years." Again, the judge seems to think that Christianity sprung, fully formed, from Jesus's risen corpse. It took a few centuries for them to even agree on what the church was, much less celebrate uniform holidays.

And let's not forget that his entire opinion is based on the complete invention that an in-person Easter service is a dogmatic requirement of Protestant Christianity. You know the only church where you actually have to show up in person to take part in rituals that are supposed to determine the fate of your immortal soul? The Catholic Church. And guess which church isn't fucking complaining about social distancing? There is no Protestant sect that requires in-person interaction with anyone, much less church attendance, for salvation. The church-plaintiff in this case is from the same tradition that spawned televangelism.

TL;DR Christian conservatives are the worst when it comes to knowing the history of their own religion.
Nailed it, Cav. I also was a bit shocked about the inclusion of Robert Byrd and Hugo Black. For one, it added nothing to the opinion. But it was also so brazenly partisan to take that shot. There have been a lot of people in position of power in this country who had past ties to the Klan (former Chief Justice Edward Douglass White, for example).

That order was so far beneath his station as a district court judge. And he's guaranteed to get a promotion onto the most significant circuit in the land. I actually was happy for him before that order. But man, that order was an embarrassment. I'm disappointed nobody in that chambers had the sense to think twice about that.

Seriously? What are you waiting for?

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