Interviews (and times) made public

After the list has been floating around the past couple of days, the JNC finally posted it here. You can see the times of the public interviews. I wonder if anyone will show up.

Some interesting notes:

• The order of the interviews is random. (Which is the best slot? Robin Rosenbaum is first up and Ana Martinez is last. Robert Lee is first up after a short 30 minute lunch. For USA, Mark Schnapp is first up and James Swaim is last.)
• The interviews last 25 minutes.
• Each applicant gets an opening (3 minutes) and closing statement (2 minutes). (Those should be interesting...)
• The JNC recommends that applicants show up 30 minutes ahead of time. (Can you imagine an applicant being late?)
• "The Rule" has been invoked. "No applicant will be allowed to attend the interview of another applicant or to discuss an interview with a member of the public who has attended other interviews." (So can I live blog?)
• AUSA Marcus Christian got an interview for the U.S. Attorney slot in the Middle District of Florida. And B.J. Throne got one in the Northern District...

Back to work

Hope everyone had a nice Thanksgiving weekend.... Updates on the district:

1. The Liberty City 7 case is slowly coming to a close -- closing arguments should start at the end of this week. Jay Weaver had a story in the Herald this weekend about the case.

2. Chief Judge Federico Moreno will be speaking at the federal bar luncheon on December 12 (CORRECTED) at noon at the Banker's club. Last month's event with Judges Barkett and Marcus sold out and was really fun. If you are interested in attending, RSVP soon.

3. The South Asian Bar Association is hosting a complimentary wine and cheese night on Wednesday, December 5 from 6:00 p.m. to 8:00 p.m. with Saira Rao, author of the Chambermaid, the controversial and entertaining debut novel. The event will take place at SolAmbit's new office located at 700 South Andrews Avenue, Fort Lauderdale, Florida 33301. For more information on the author and the book, please visit http://srv.markuslaw.com/exchweb/bin/redir.asp?URL=http://www.sairarao.com/.

4. Judge Cooke denied the post-trial motions in the Padilla case, which means the sentencing (and appeal) will proceed. Vanessa Blum has more here.

5. I found this article really interesting about Judge Paul Cassell leaving the district court bench to go back to being a law professor:

Cassell said he found himself questioning some laws at each turn. "I felt like it was proper judicial role to ask questions, even if we weren't necessarily charged with fixing the problem," he said. But he wanted to do more — he wanted to make a change. Being a federal judge, he couldn't do that. "One of the frustrations about being a trial court judge is that you never set broad principles of law; of course, that's reserved for the appellate courts. ... When I was there for 5 1/2 years, I began to think that maybe I would have more effect in moving the law in a way that I think is desirable by doing appellate litigation."

There aren't too many more powerful positions than a federal judge, yet Cassell was "frustrated" he couldn't do more. He has a lot more to say, including his position on draconian federal sentences... It's worth a read.

(HT: Orin Kerr and Doug Berman)

Feeling the Heat

The "other" Marcus in for the King.  I'll try not to pull a James Jones this week.  Let's Go Heat! 

En banc 11th Circuit rules 6-5 that Florida felony battery is a violent felony under the Sentencing Guidelines

The en banc 11th Circuit ruled 6-5 that Florida felony battery is a violent felony under the Sentencing Guidelines.  The majority opinion was written by Judge Julie Carnes, which is significant because many were wondering whether she would end up siding with the older, conservative faction of the Court (E. Carnes, Tjoflat, Hull, Marcus, W. Pryor) on this issue, or the newer, moderate members (Martin, Jordan, Rosenbaum, J. Pryor).  The dissent was written by Judge Wilson and joined by those four Obama appointees. 

Judge Marcus reverses death penalty in 100-page opinion

Since Blogger has been down, I've had some time to catch up on 11th Circuit opinions, even these really long ones. Here's the intro from Ferrell v. Georgia (which was joined by Judges Tjoflat and Black):

After thorough review of this ample record, we are compelled to reverse in part the judgment of the district court. We hold that the state court’s rejection of Ferrell’s ineffective-assistance claims was an unreasonable application of Strickland v. Washington, and, accordingly, we reverse the district court’s denial of habeas relief from Ferrell’s death sentence. Neither the jury nor the sentencing judge was ever told, because defense counsel never discovered that Ferrell suffers from extensive, disabling mental health problems and diseases including organic brain damage to the frontal lobe, bipolar disorder, and temporal lobe epilepsy. Nor
did they learn that the defendant had attempted suicide at age eleven, or that because of these mental health issues, Ferrell exhibits increased impulsivity and
decreased sound judgment; that his conduct was not entirely volitional; or that his
judgment and mental flexibility were significantly impaired by organic brain damage. Nor, finally were they ever told that Ferrell’s father was physically abusive to his children, especially to Ferrell, waking them in the middle of the night to beat them (sometimes after stripping them naked) with razor strops, fan belts, and old used belts; that the family was repeatedly evicted from their homes and hungry, and lived in fear of those to whom the father owed gambling debts; or that Ferrell’s mother suffered from clinical depression, suicidal ideations, rage blackouts, and urges to physically injure her children.

Judge Melissa Damian has been sworn in (UPDATED)

That's her with her children and Chief Judge Altonaga.

That means all three new judges are in and working.  Congratulations again to all three!

Cases will now start getting transferred.

Let the fun begin.

Update with a picture of the swearing in of David Leibowitz, with his wife and son, by Judge Marcus.  Judges Altonaga, Moreno, and Jordan were also present  

Lawyers behaving badly

Everyone's all aflutter about the depo drawings leading to sanctions against lawyers.  Here's the order by Judge Altonaga. 

South Florida Lawyers and ATL cover the story. 

Civil lawyers are so funny.  All this fighting about discovery.  Try coming to criminal land -- no depos, no witness statements, no nothing.  And when something does get buried, no sanctions are allowed. 

Anyway, I'm taking the week off from blogging next week, and leave you in the capable hands of Rumpole, SFL, Jeff Marcus, and a potential mystery blogger.  If something really exciting does come up, I'll pop my head in.

For now, I'm going to go and try to get in on some of this Facebook action.

Have a nice weekend.

SDFLA judges are starting to grant release based on COVID-19 (yes!) UPDATED WITH 4/6 BARR MEMO

UPDATE -- AG Barr tells prosecutors he's really serious about releasing folks on bond.  Here's the 4/6 memo: “You should now consider the medical risks associated with individuals being remanded into federal custody during the COVID-19 pandemic. Even with the extensive precautions we are currently taking, each time a new person is added to a jail, it presents at least some risk to the personnel who operate that facility and to the people incarcerated therein.”  AG Bill Barr instructed prosecutors that they should "consider not seeking detention to the same degree we would under normal circumstances." 

I know of at least 3 cases, the most recent from today in United States v. Karl Oreste, Case no.14-20349-Scola. The order is here. Kudos to AUSA Lois Foster Steers for agreeing to this compassionate release motion and to AFPD Julie Holt for successfully pursuing the motion. Judge Scola writes a really good order, explaining how serious this issue is in our prison system.

Judge Williams also granted one, over the prosecutor’s objection in the Bart Hernandez case.  The Miami Herald covered that decision here.  It’s strange that the government objected here where there was only a few months left on the sentence and the defendant’s mom really needed the help.  Big ups to Judge Williams for granting this over objection.  Defense attorneys: Jeff Marcus, Dan Rashbaum, and Alison Green.

And here’s a lengthy and really well-reasoned order granting bond pending sentencing in United States v. Johnny Grobman by Judge Goodman.  The government not only fought against this order, but is appealing to Judge Altman.  (Full disclosure, I have been brought on as appellate counsel in the Grobman case and consulted on this motion before Magistrate Judge Goodman as well as the government appeal to Judge Altman. (Phil Reizenstein and Jackie Arango are the leads.)  So I won’t comment other than to say it would be worth your time to review Judge Goodman’s order).  

Any others?  Please send them along!

Federal Bar dinner

The Federal Bar Association, South Florida Chapter, had its annual installation dinner last night. I am the outgoing president, and Celeste Higgins is the incoming president. Chief Judge Moreno and Judges Huck, Altonaga, King, Gold, Dube, Brown, O'Sullivan, Torres, and Palermo attended, which made for a good night. I want to thank those judges for supporting the Federal Bar Association this year, and a special thanks to the judges who spoke at the lunch meetings (Judges Marcus, Barkett, Moreno, Cooke, Martinez, Gold, Huck, and Altonaga).

It was a fun year -- we had a bunch of really good lunches and meetings (prior coverage and pictures here). For those of you who came last night and to the meetings throughout the year, thanks.

11th Circuit affirms conviction where portion of trial occurred without the defendant and her lawyer

The case is U.S. v. Lourdes Garcia. It is the follow up to U.S. v. Roy, where the trial proceeded without the defendant present and was affirmed by the en banc 11th Circuit. Both cases involve the same district judge. Here’s how Garcia starts out, by Judge Marcus:

This is a troubling case. There can be no doubt -- and the government does not contest the point -- that constitutional error occurred. It is also clear that the error was plain and obvious. The decision to allow the government to introduce inculpatory evidence while both the defendant and her lawyer were absent for three to ten minutes in a trial that lasted more than 49 hours violated the defendant’s right to counsel, her right to confront the witnesses arrayed against her, and her right to be present at trial under both the Due Process Clause and Fed. R. Crim. P. 43. The only question is whether Garcia’s convictions should be reversed on account of the error.
We hold that Garcia’s convictions must be affirmed because the errors did not affect Garcia’s substantial rights. There can be no question that Garcia failed to preserve the errors at trial even though she had ample opportunity to do so. She was given every chance to object and to secure some remedial relief from the trial court but expressly declined to act. As a consequence, under well-established law we must review the constitutional violations that occurred for plain error, not for harmlessness beyond a reasonable doubt. What’s more, there is good reason in this case to be punctilious in selecting the proper standard of review. The prejudice analysis is by no means clear-cut and the standard by which we measure it could well make all the difference.

Even though the defendant didn’t object, this is an absurd result. The problem started in Roy where the en banc court found that this wasn’t a structural issue. Hopefully the Supremes take a look.

En banc 11th Circuit rules in gender discrimination case

Knowing the makeup of the court, you know how this one came out already.  Summary judgment for the company, Kia Motors, affirmed.  Judge Branch writes the majority opinion.  There are six separate opinions in all:

BRANCH, Circuit Judge, delivered the opinion of the Court, in which WILLIAM PRYOR, Chief Judge, GRANT, TJOFLAT, ED CARNES, MARCUS, and JULIE CARNES, Circuit Judges, joined.

WILLIAM PRYOR, Chief Judge, filed a concurring opinion.

JORDAN, Circuit Judge, filed an opinion concurring in the judgment.

WILSON, Circuit Judge, filed an opinion concurring in part and dissenting in part.

MARTIN, Circuit Judge, filed a dissenting opinion, in which ROSENBAUM and JILL PRYOR, Circuit Judges, joined.

ROSENBAUM, Circuit Judge, filed a dissenting opinion, in which MARTIN and JILL PRYOR, Circuit Judges, joined.

Interestingly, 4 senior judges elected to participate in the case, and all of them voted with the majority.  Had they not participated, it looks like there would have been a 3 judge plurality.

Better Late Than Never

By Michael Caruso

 

Yesterday, at the behest of an 8th-grade civics class, Massachusetts lawmakers formally exonerated Elizabeth Johnson a mere 329 years after she was convicted of witchcraft and sentenced to death (thankfully, she was not executed). Johnson was 22 when she was caught up in the hysteria of the witch trials and sentenced to hang. Then-Gov. William Phips threw out her punishment, but while dozens of suspects officially were cleared, including her own mother, Johnson's name wasn't included in various legislative attempts to set the record straight. Until now.

Similarly, former President Trump used his pardon power to right very old wrongs, including the boxer Jack Johnson—convicted in 1913 of a Mann Act violation—and Susan B. Anthony—convicted in 1872 of voting fraud. (Although the Susan B. Anthony Museum rejected the pardon as she would have wanted).

The wrongly convicted and unduly punished should not have to wait that long. Currently, there are about 17,000 petitions for pardons and commutations pending. Critics like Professors Rachel Barkow and Mark Osler have assailed the modern use of the pardon power as "too often ignored or used to create calamities rather than cure them." They, along with others, recently testified at a House Oversight Committee hearing about our clemency system's issues.

And earlier this year, Attorney General Merrick Garland selected Elizabeth Oyer, a former federal public defender, and Mayer Brown partner as the U.S. Pardon Attorney. Ms. Oyer began her career as a law clerk for our very own 11th Circuit Court of Appeals Judge Stanley Marcus.

In this role, Ms. Oyer presides over the office that reviews and evaluates federal clemency applications. Earlier this month, several clemency advocates privately met with Ms. Oyer, "a rare occurrence that left them cautiously optimistic about forthcoming changes to a strained system."

For the clemency system to function, however, we need lawyers. Families Against Mandatory Minimums does excellent work recruiting, training, and assisting lawyers who want to lend a hand. It's never too late to right a wrong, but the sooner, the better.

Happy V Day!

The (much) less famous Marcus (but more importantly better Beth Am basketball player) in the house covering for the Big D. I haven't won a grammy or anything but I'm feeling pretty good this morning. At the shiny controls of the Blog mothership, my spiritual journey from prosecutor to defense lawyer is now complete. And the week already is a personal success because I learned the important stuff like inserting pics. Time to put the toys down and figure out something to write for you all. Feel free to email me noteworthy items this week at jeffmarcus@bellsouth.net.

It's Judge Newsom, not Newsome

Judge Newsom has quickly become known as one of the more entertaining writers on the 11th Circuit.  He even makes IP litigation fun.  From the intro:

Royal Palm Yacht & Country Club, a residential community in Boca Raton, Florida, is home to multimillion-dollar mansions, a championship golf course, and even a private marina. It’s also home, as it turns out, to the contentious real-estate rivalry that spawned this trademark litigation.
Royal Palm Properties, a real-estate broker whose specialty is buying and selling homes in Royal Palm Yacht & Country Club, sued its competitor, Pink Palm Properties, for infringing its registered service mark on the phrase “Royal Palm Properties.” Pink Palm Properties counterclaimed, challenging the mark’s validity. A jury in the U.S. District Court for the Southern District of Florida upheld Royal Palm Properties’ mark but found that Pink Palm Properties hadn’t infringed it. The district court, though, overturned the verdict in part, granting Pink Palm Properties’ renewed motion for judgment as a matter of law and ordering the cancellation of Royal Palm Properties’ mark. The question before us is whether the district court correctly flipped the jury’s verdict and granted judgment as a matter of law on Pink Palm Properties’ trademark-invalidation counterclaim.

We hold that the district court erred. To be entitled to judgment as a matter of law, Pink Palm Properties would have had to make quite the showing at trial—such that no reasonable jury could have found that it failed to prove grounds for cancelling Royal Palm Properties’ mark. Based on our careful review of the record, we conclude that Pink Palm Properties didn’t meet this high bar. On neither of its two grounds for cancellation—that the “Royal Palm Properties” mark (1) is not “distinctive” and (2) is “confusingly similar” to previously registered marks—did Pink Palm Properties prove, decisively, that it had won the day. We therefore reverse the district court’s decision to overturn the jury’s verdict and invalidate Royal Palm Properties’ service mark.

I enjoyed this discussion and the footnote especially:*

Pink Palm Properties certainly satisfied the first two Coach House requirements. The “Royal Palm Properties” mark clearly “resembles” the “Royale Palms” marks—the spelling of the dominant words is nearly identical8—and the “Royale Palms” marks were registered several years before the “Royal Palm Properties” mark.

8.Welcome to the author’s life. Compare “Newsom” with “Newsome.”

* Welcome to this author's life as well.  Compare "Markus" with "Marcus."

Former SDFLA clerk goes to Supreme Court

Congrats to 30-year old Lindsay Harrison, a fifth year associate at Jenner & Block, for arguing before the Supreme Court last week -- her first appellate argument. A bunch of blogs have been covering the argument and Ms. Harrison, who clerked for Judge Gold and Judge Barkett. Here's a bit of an interview from AboveTheLaw:

ATL: First things first. What did you wear? There has been some controversy over how women oral advocates should dress when appearing before the Court.
LCH: I wore a black pantsuit. I was not about to wear a skirt, since they dispensed with that requirement and permitted women to wear pants a few years ago. If women don't take advantage of that opportunity, it sets a bad precedent. And I wore pearls -- my concession to formality.
ATL: You must be one of the youngest people ever to argue before the Court. Have you done any research to figure out where you fall?
LCH: I'm definitely not the youngest. The woman who argued Roe v. Wade, Sarah Weddington, was 26 at the time. Tom Goldstein was 29 when he argued his first case. I turned 30 on January 5.

The whole interview is a fun read.

UPDATE -- Ms. Harrison writes in:

There are actually a bunch of SDFL connections to the argument. An amicus brief was written by Adam Raviv (Marcus clerk) on behalf of FIAC, where my Barkett co-clerk Tania Galloni works. Cecily Baskir, another Barkett clerk, participated in one of my moots. And the argument was attended by both Adam Raviv and Deb Raviv, a King clerk from 03-04. All in all, a great showing for the SDFL.
I've also received a lot of really nice emails from folks in Miami, and it's been great to hear from the community, which I still feel very strongly a part of.

Welcome a new guest blogger

Starting Monday, I'm excited to announce that we'll have Jeff Marcus guest blogging for the week.

Enjoy!

BREAKING -- President Trump nominates three to SDFLA bench

Congratulations to Roy Altman, Rudy Ruiz, and Rodney Smith for being officially nominated to the U.S. District Bench for the Southern District of Florida. Here is the White House press release:

If confirmed, Roy K. Altman of Florida will serve as a District Judge on the U.S. District Court for the Southern District of Florida. Roy Altman is a partner at Podhurst Orseck P.A., where his practice has focused on aviation and commercial litigation since 2014. Before entering private practice, Mr. Altman served for six years as an Assistant United States Attorney for the Southern District of Florida, where he prosecuted hundreds of cases covering the full range of Federal criminal conduct. Over this period, Mr. Altman tried more than 20 cases to jury verdict and argued several of these before the U.S. Court of Appeals for the Eleventh Circuit. During his service as a Federal prosecutor, Mr. Altman won a number of awards including the Director of the Executive Office of U.S. Attorneys Award for “Superior Litigation Team” in United States v. Mentor (first-degree murder), the Director of the Executive Office of U.S. Attorneys Award for “Superior Litigation Performance” in United States v. Flanders (human trafficking), the Federal Bar Association Young Federal Lawyer Award (one of five attorneys under 37 nationwide), and the “Federal Prosecutor of the Year” award from the Miami-Dade County Association of Chiefs of Police and the Law Enforcement Officers Charitable Foundation. Upon graduation from law school, Mr. Altman served as a law clerk to Miami-based Circuit Judge Stanley Marcus of the U.S. Court of Appeals for the Eleventh Circuit. Mr. Altman earned his B.A., cum laude, from Columbia University, where he played baseball and football, and his J.D. from Yale Law School, where he served as the projects editor of the Yale Law Journal.

If confirmed, Rodolfo “Rudy” Ruiz II of Florida will serve as a District Judge on the U.S. District Court for the Southern District of Florida. Rudy Ruiz currently serves as a Circuit Judge in the Eleventh Judicial Circuit of Florida since his appointment by the Governor in 2014. As a Circuit Judge, Judge Ruiz has presided over both civil and criminal divisions. He previously served for two years as a County Court Judge in the Eleventh Judicial Circuit, where he handled a full range of civil and criminal cases. Before ascending to the bench, Judge Ruiz served for three years as an Assistant County Attorney in the Miami-Dade County Attorney’s Office, where he handled a wide range of civil defense matters in Federal and State court at both trial and appellate levels. Before joining the County Attorney’s Office, Judge Ruiz practiced corporate law in the Miami office of White & Case LLP. Upon graduation from law school, Judge Ruiz served as a law clerk to Judge Federico A. Moreno of the U.S. District Court for the Southern District of Florida. Judge Ruiz earned his B.S. from Duke University and his J.D. from Georgetown University, where he was an articles editor of the American Criminal Law Review.

If confirmed, Rodney Smith of Florida will serve as a District Judge on the U.S. District Court for the Southern District of Florida. Rodney Smith serves as a Circuit Judge in the civil and felony criminal divisions of the Eleventh Judicial Circuit, where he has served since his appointment by the Governor in 2012. In this capacity, he also serves as co-chair of the Diversity Committee of the Florida Conference of Circuit Judges. He previously served for four years as a Miami-Dade County Court Judge of the Eleventh Judicial Circuit, where he handled both civil and criminal cases. Before ascending to the bench, Judge Smith served as a senior assistant city attorney in the Office of the City Attorney for Miami Beach, where he handled a broad range of civil defense matters. Before joining the City Attorney’s office, Judge Smith practiced insurance defense law at a number of private Miami firms. Upon graduation from law school, Judge Smith served for four years as an Assistant State Attorney in the Miami-Dade County State Attorney’s Office. Judge Smith earned his B.S., cum laude, from Florida Agricultural and Mechanical University, and his J.D., cum laude, from the Michigan State University College of Law.

This still leaves two open spots on the court. No word on whether the JNC will forward new names or whether the White House is going to pick different people.

Judge William Pryor rules in favor of "Gay-Straight Alliance" club at middle school

Interesting in light of his consideration for the Supreme Court.  The opinion, written by Judge Pryor, and joined by Judge Marcus and a visiting judge, is here.  The intro:

This appeal requires us to decide whether a complaint that a school board
violated the Equal Access Act when it denied the application of the Carver Gay-
Straight Alliance to form a student club is ripe and not moot and whether the Act
applies to a public middle school in Florida. After a teacher at Carver Middle
School submitted an application for the approval of the Carver Gay-Straight
Alliance, the superintendent denied the application on the ground that the
application failed to identify an allowed purpose for the club. Instead of submitting
a new application, the Alliance and a student, H.F., filed a complaint that the Board
had violated the First and Fourteenth Amendments to the Constitution and the
Equal Access Act. Under the Act, if a public school “provides secondary education
as determined by State law,” the school must give extracurricular clubs equal
access to school resources. 20 U.S.C. §§ 4071–72. Following a bench trial, the
district court entered a judgment against the constitutional claims, dismissed the
claim under the Act as both not ripe and moot, and ruled, in the alternative, that the
Act does not apply to Carver Middle School. The Alliance and H.F. appeal only
the dismissal of their complaint that the Board violated the Act. Because we conclude that the complaint of the Alliance and H.F. is ripe and not moot and that the Act applies to Carver Middle School, we vacate and remand for further proceedings.

The ACLU issued a press release, stating: “We are of course pleased that the court agreed with our legal position on all of the issues in the appeal,” stated Daniel Tilley, Staff Attorney for LGBTS Rights for the ACLU of Florida. “But the greater victory is for the middle school students across Florida who are protected by the Equal Access Act and must be allowed to create a gay-straight alliance if their school allows student clubs.”

Finale week

American Idol, Dancing with the Stars, Oprah...

Oh, you came here for law stuff. Fine:

1. Judge Dubina's daughter doesn't like the health care law. Here is Martha Dubina Roby's Facebook page. She is a freshman congresswoman from Alabama. Oral argument is in Atlanta on June 8, and the panel is Judges Dubina, Marcus and Hull.








2. Goodwin Liu has given up his bid to be on the 9th Circuit. The Senate should be ashamed.

3. Alan Mendelsohn wants a short sentence.

4. The 11th Circuit debates what "he" means in a prosecutor's closing argument. From Judge Wilson's dissent:

Attempting to bolster the credibility of Mark Duke’s cooperating codefendant, the prosecutor argued the following to the jury:

[Duke’s co-defendant] told the truth, ladies and gentlemen,
and here is how we know it, there’s a witness that you
heard from but he didn’t come in here and talk to you from
this witness stand. After he shot, stabbed, and cut the throat
of Randy Duke, he took Randy Duke’s blood with him
throughout that house.

In doing so, the prosecutor impermissibly commented on Duke’s decision not to testify, in violation of his Fifth Amendment right against self-incrimination. The majority is willing to accept the State’s explanation that the “he” the prosecutor was referring to was not really Mark Duke but was Randy Duke’s “blood.” It is willing to accept that the “blood” is a male “witness” that the jury “heard from.” It is willing to accept that the prosecutor used “2 he” in one sentence to refer to blood and “he” in the next sentence to refer to Mark Duke, without ever indicating any possible change of subject. This makes no sense because it would mean that Randy Duke’s blood “shot, stabbed, and cut the throat of Randy Duke” and that Randy Duke’s blood took itself “throughout the house.” The majority accepts this story even though the State could not consistently or coherently articulate such an argument in the moments after the comment was made, and despite the fact that the prosecutor who spoke it did not dispute that he was referring to Duke. I respectfully part company with my colleagues in accepting this logic.

I do not see how the jury could have possibly interpreted this statement as anything but a comment on Mark Duke’s failure to testify. Accordingly, I dissent.

"An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

That was Justice Gorsuch for a 6 Justice majority today (including Chief Justice Roberts) in Bostock v. Clayton County.  This was another slap down for the 11th Circuit, which has tilted WAY too far to the right.

Justice Kavanaugh was completely wrong in his dissent, but at least he wasn’t a jerk about it — unlike Alito.  Look at the difference in tone:

Kavanaugh at least acknowledged “the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.”

Alito, on the other hand, said Gorsuch’s opinion “is virtually certain to have far-reaching consequences” which will “threaten freedom of religion, freedom of speech, and personal privacy and safety.” He said that Gorsuch was “irresponsible,” because his opinion “greatly impeded—and perhaps effectively ended—any chance of a bargained legislative resolution.”

Meantime, the 11th Circuit has a couple of 2-1 decisions. First is a reversal of the Metro-West injunction related to corona. Newsom and Martin square off, with a visiting district judge joining Newsom.

The second is a reversal of a suppression order, with Branch and Marcus in the majority. Kudos to Judge Ungaro for dissenting:

While the evidence is that the three men and Mrs. Yarborough were secured near the porch of the house and, as emphasized by the majority, Officer Monroy’s re-entry was swift and his search was cursory, the only conclusion I can reach from the record is that Officer Monroy made the sweep, no doubt for officer safety, because the arrest scene was proximate to the house and he had a concern that the house, like any structure, could have concealed the presence of a dangerous individual. In other words, Officer Monroy conducted the sweep based on speculation, rather than articulable facts.