Justice Kavanaugh’s concurrence in Bruen is a perfect example of what @barryfriedman1 @susansmelcer @WashUChancellor and I call a “pivotal concurrence.” cornelllawreview.org/2020/07/29/div… What’s that, you ask? 🧵Bruen was decided by a vote of 6-3. Importantly, all six members of the majority also signed onto the majority _opinion_. The general rule is that an opinion that garners the votes of a majority of the court is binding law. So we can ignore the concurrences, right? Not so fast.
In our article, we identify a special kind of concurrence that has outsized importance, even though the formal voting rules say it has no force of law. We call this a pivotal concurrence, and they’re surprisingly common (several per term).
Pivotal concurrences have 3 features. 1. There must be a majority (not a plurality) opinion. 2. One or more justices who are numerically necessary to the majority must write a concurrence. 3. That concurrence must state a different legal rule from the majority opinion.
Oz drops Trump branding in general election shift
Why it matters: Oz’s transition for the general election highlights the tightrope many Trump-endorsed candidates have attempted to walk — embrace the former president where it counts, while keeping him at arm’s length in situations where his brand is toxic.
- That was the strategy employed by Virginia’s Republican governor, Glenn Youngkin, during his successful campaign last year.
Dante Chinni/American Communities Project:
In Pennsylvania, Are Oz Voters Different from Trump Voters?
The endorsement of Oz from former president Donald Trump has gotten a lot of the headlines in the wake of the primary.
But a closer look at the results shows that Oz actually did not fare well in places where Trump scored big victories in 2020. Meanwhile, Oz did better in places in the state where Trump struggled.
This analysis was conducted using the American Communities Project‘s county typology. The project, based at Michigan State University, uses demographics and other data points to sort the nation’s 3,100 counties into 15 types.
Ron Johnson and the Mysterious Package
Senator Ron Johnson doesn’t know a few things.
Like how a package of fake slates of electors for Michigan and Wisconsin showed up at his office on January 6th. Or why, at 12:37 p.m. that day, his Chief of Staff, who happens to be a former aide to Trump, texted a staffer to then-Vice President Mike Pence asking for advice on how Johnson should “hand” it to Pence.
Johnson says he never knew anything about any of that. Not until the House January 6th Committee, which he opposes, revealed the messages on Tuesday. All news to him! But he also says it’s all a mystery that absolutely no one needs to bother themselves solving. Huh.
CNN’s Manu Raju caught up with Johnson after the hearings, and Johnson told him it was a “staff-to-staff exchange and I was, basically unaware of it…we didn’t deliver it, and that’s the end of the story.”
When pressed, Johnson said, “I have no idea who delivered it,” that he “had no knowledge of this,” and he was only “aware we got something delivered that wanted to be delivered to the Vice President.” (Apparently, the package had a mind of its own?)
Dexter Filkins/New Yorker:
Can Ron DeSantis Displace Donald Trump as the G.O.P.’s Combatant-in-Chief?
A fervent opponent of mask mandates and “woke” ideology, the Florida governor channels the same rage as the former President, but with greater discipline.
For decades, the Democratic Party had commanded a majority of Florida’s registered voters. But the state was changing, as Trump’s election helped energize a shift in political affinities. The Republican Party’s rank and file became increasingly radical, and G.O.P. leaders appeared only too happy to follow them. “There was always an element of the Republican Party that was batshit crazy,” Mac Stipanovich, the chief of staff to Governor Bob Martinez, a moderate Republican, told me. “They had lots of different names—they were John Birchers, they were ‘movement conservatives,’ they were the religious right. And we did what every other Republican candidate did: we exploited them. We got them to the polls. We talked about abortion. We promised—and we did nothing. They could grumble, but their choices were limited.
“So what happened?” Stipanovich continued. “Trump opened Pandora’s box and let them out. And all the nasty stuff that was in the underbelly of American politics got a voice. What was thirty-five per cent of the Republican Party is now eighty-five per cent. And it’s too late to turn back.”
Fox News Parent Has to Face Defamation Suit Over Vote-Rigging Claims
Fox News’s parent company can be sued by a voting-machine maker because Rupert and Lachlan Murdoch may have acted with “actual malice” in directing the network to broadcast conspiracy theories alleging the 2020 presidential election was rigged against Donald Trump.
Delaware Superior Court Judge Eric M. Davis on Tuesday denied Fox Corp.’s motion to dismiss the suit, saying Dominion Voting Systems had shown that the Murdochs may have been on notice that the conspiracy theory that rigged voting machines tilted the vote was false but let Fox News broadcast it anyway. Dominion cited in its suit a report that Rupert Murdoch spoke with Trump a few days after the election “and informed him that he had lost,” the judge noted.
Coalition behind gun bill reveals a sharp Senate Republican split
No player was more crucial than Senate Minority Leader Mitch McConnell (R-Ky.), who tapped trusted leadership deputy Sen. John Cornyn (R-Tex.) in the aftermath of the May 24 massacre at a Uvalde, Tex., elementary school, and made clear that time had come — unlike in the past — for Republicans to cut a deal on gun violence.
“This time is different,” McConnell said Wednesday, in a speech formally backing the deal Cornyn negotiated. “This time, Democrats came our way and agreed to advance some common-sense solutions without rolling back rights for law-abiding citizens. The result is a product I’m proud to support.”