Asher Steinberg

[Asher Steinberg @AsherLSteinberg]

9. Barrett, Minerva (this opinion is so radical I can't understand it)

[Asher Steinberg @AsherLSteinberg]

My power-ranking of the Court's statutory opinions in the last week:

1. Alito, Minerva
2. Kagan, Minerva
3. Barrett, HollyFrontier
4. Alito, Guzman-Chavez
5. Gorsuch, Tribes of Chehalis
6. Sotomayor, Tribes of Chehalis
7. Breyer, Guzman-Chavez
8. Gorsuch, HollyFrontier

[Asher Steinberg @AsherLSteinberg]

But saying that the statute just defines "notice to appear," not "a notice to appear," seems to me a non-starter. And it would be extremely problematic if we started disregarding statutory definitions whenever a defined term is modified by an indefinite article.

[Asher Steinberg @AsherLSteinberg]

A remark or two on one aspect of Gorsuch's opinion in Niz-Chavez on the import of "a" in the phrase "a notice to appear" today -- particularly on the significance of the statute ostensibly only defining "notice to appear," not "a notice to appear."

[Asher Steinberg @AsherLSteinberg]

I think there are arguments that the statute doesn't even define "notice to appear," or that its definition is merely silent on whether "notice" is satisfied by multiple documents and that context resolves that question Gorsuch's way.

[Asher Steinberg @AsherLSteinberg]

@NealGoldfarb Easily in the bottom 5% of recent Supreme Court arguments, excluding local practitioners who stubbornly hung onto a case they handled at the trial level, and maybe half of those are better than he was.

[Asher Steinberg @AsherLSteinberg]

A Papa John's deliveryman just drove by playing Sly Stone's "If You Want Me To Stay," which reminds me to re-up my "things better than Taylor Swift's whole career" trend and note that both the album that song's on and the song itself are better than Taylor Swift's whole career.

[Asher Steinberg @AsherLSteinberg]

@NealGoldfarb Garner's oral argument was phenomenally bad, but I do think he thoroughly briefed the claim that you can't store numbers using a generator, and I'm not sure that claim accurately describes TCPA-era technology, or it might have carried the day.

[Asher Steinberg @AsherLSteinberg]

@NealGoldfarb Garner, for example, talked at argument about "maintaining or acquiring land using eminent domain," and my gut reaction to that is that any reasonably literate person would rephrase that as maintaining land or acquiring it using eminent domain.

[Asher Steinberg @AsherLSteinberg]

@NealGoldfarb If I could interrupt, what do you think of what seems like the better quasi-grammatical argument for the Court's result, which is that it is really odd for two verbs to share a direct object and for a subsequent adverbial clause to only modify one of the verbs?

[Asher Steinberg @AsherLSteinberg]

@christor Not all laws classify religious institutions by name. It's perfectly possible to imagine Covid protocols that neutrally prohibit all gatherings where people sit in place for a couple hours, which is supposed to be the danger religious services pose anyway.

[Asher Steinberg @AsherLSteinberg]

@StephenESachs @fitzcamel @WilliamBaude Yeah, I'm glad he didn't detract from the authoritativeness of your important point by citing my blog and the post's ungainly title.

I think what I said there was just a potted version of what @NealGoldfarb had written at the time about this canon.

[Asher Steinberg @AsherLSteinberg]

My old post, which I liked a lot at the time, is here:

https://t.co/TaJL7zKbbw

[Asher Steinberg @AsherLSteinberg]

Justice Alito quoted Will Baude and Steve Sachs's quote of my blog in his concurring opinion in Duguid today. (He wisely omitted to say who they were quoting.) Entirely apart from that, it's a really good, short opinion on why you shouldn't take "grammar" canons too seriously.

[Asher Steinberg @AsherLSteinberg]

@christor For example, I doubt you think the men's Olympic basketball team isn't engaged in gender, age and height discrimination because the people on the team are wildly different in relevant ways from the people who are not. That difference just robustly justifies the discrimination.

[Asher Steinberg @AsherLSteinberg]

@christor I don't think the dissimilarity of comparators has anything at all to do with whether a law is facially discriminatory or neutral, though; I think that's simply a question of whether it sorts whatsoever on the basis of the protected trait/activity.