Open Primary in NYC (and DEI Again)

In 2023, Common Cause New York issued a report on New York’s “unaffiliated” voters, who represent more than a million voters in New York City and are now the second largest voting bloc citywide.

A local op-ed opposed putting an open primary on the ballot in New York City. It did not necessarily oppose the concept. Nonetheless, it argued that more study should be provided.

The argument appears reasonable. We are having an atypical mayoral election this year with at least one major third-party candidate (Eric Adams). The unaffiliated voters weren't the only ones unable to take part in the primary. The Republicans did not have a contested mayoral primary.

Mamdani appeals to a plurality of voters. Republicans are a minority (only about five members of the city council are Republican). The result is that there is a middle group who wish for a third candidate. Adams and Cuomo, however, are dubious options for certain non-ideological reasons.  

I think an open (or "jungle") primary in an area that is strongly one-party makes sense. The alternative might not result in a fair representation of the will of the electorate. Curtis Sliwa is not a typical Republican. 

OTOH, if we are going to change how we vote, it should be done carefully. So, I find the op-ed convincing. 

Diversity ensures representation among qualified persons across race, national origin, sex, gender, sexual orientation, disability, age, socioeconomic status, military status, shared ancestry, parental status, persons who live in rural communities, and more, so that institutions reflect the communities they serve.

DEI came up on another blog. It is a favorite target, and some people conclusively say it failed. I have talked about this issue before. It still bothers me.

DEIA (Diversity, Equity, Inclusion, and Access) is fundamentally a good thing. It is not just about race (or sex). It has quite a few aspects that few will oppose across the board (e.g., disability access or religious accommodations).  

DEI (the "A" is often left off) is used as a buzzword. It is more political theater than an honest attempt to address the substance. 

Some aspects will be controversial and/or problematic. Others are fine. Others are good. 

I will die on that hill. Well, I will die on many hills. 

SCOTUS Thoughts

The author (GM) of an upcoming book on Justice Robert Jackson's concurrence in Youngstown has been blogging about research for a new project involving the Bayh Subcommittee on constitutional matters. 

The first link talks about Justice Robert Jackson's concern about limiting executive power. The current Justice Jackson has also been quite vocal about that. Rightly so. She has also talked about it in interviews.

(There was a third Justice Jackson, but no one cares about him. Still, it's a good trivia question.) 

GM also cited something involving a college student's interview of five justices involved in Miranda v. Arizona. I was able to find it for free via the NYPL research database. 

Justice Harlan referenced justices being "umpires" on constitutional matters. The framers of the Constitution used the term as well, including about Congress. John Roberts didn't invent the term, though he did use it misleadingly as a matter of restraint. 

Justice Clark noted the Constitution as a "living document." At least one other justice said so during the Brown v. Board of Education oral argument.  This should be deemed obvious. 

Justices Black, Douglas, and Stewart also contributed. Justice White changed his mind about doing so. Justice Brennan turned down a request, noting he felt it improper. The student worked for someone in Congress, who helped smooth things along.  

Upcoming Execution

Michael Bernard Bell is scheduled to be executed by Florida next Tuesday. He murdered two people accidentally, thinking he was killing the person who took the life of his brother (officially in self-defense). 

(Since he killed two people, even if he was right, Bell would have murdered someone else in the process.)

Bell also fired into the crowd while running away. Plus, he was separately serving time for killing three people, including a toddler. So, yes, few people are going to be crying about his death.

His lawyers' latest bit is alleging testimony used to prosecute him was coerced and overall tainted. 

There is a final appeal pending at the Supreme Court on this issue. I will be shocked if it amounts to anything but a "brief" order merely stating the petition is denied. I will update when that happens.  

The primary problem (in my view) is that he was prosecuted thirty years ago. Breyer (see here) continues to be correct in flagging the problem was executing people after so much time. Ginsburg joined his dissent there, and Stevens talked about it separately. I wish another justice would flag the issue. Jackson is busy. What about Sotomayor?

Michael Bell is not reportedly causing trouble in prison (at least in the articles I saw). He should continue serving time for his heinous murders.  

When Sparks Fly

 

Meghan Markle was in two Hallmark Channel movies. I talk about them here. I rewatched (if a bit late) this one. It was pleasant, and my general sentiments are the same. 

Continue to Say No to Cuomo

I respond to a discussion about an appeal to consistently supporting the Democratic nominee. I agree, but am still bothered, particularly that Cuomo's sex crimes continue to be underreported. 

SCOTUS Watch: More Summer Trump Enabling

The Supreme Court had a case involving Trump's plans to reduce the federal workforce for over a month. 

It decided to release a thinly argued "go right ahead for now" order only now. As Justice Jackson notes:

[D]espite this fact-bound determination and the extensive fact-finding that supports it, the Court now cavalierly concludes (in just one line) that “the Government is likely to succeed on its argument that the Executive Order and Memorandum are lawful.” 

We can only assume what happened other than Justice Jackson taking the time to write a solo dissent. 

On Tuesday, the Supreme Court blocked a lower court order that temporarily stopped President Donald Trump from laying off tens of thousands of federal workers and effectively dismantling congressionally created agencies by presidential fiat. Six weeks ago, Judge Susan Illston, a judge in California appointed by President Bill Clinton, explained at length that Trump was asking her to either declare that dozens of past presidents and congresses “did not properly understand the separation of powers,” or to “ignore” what the executive branch was plainly doing. “The court can do neither,” Illston said. 

This is another case of an extensive district court ruling lifted with little or no comment. This time, even Sotomayor went along. She briefly concurred. 

Sotomayor agrees with Jackson that Trump cannot reorganize without congressional approval. She argues that the plans themselves are not involved here. 

The unsigned order acknowledges this. Nonetheless, Jackson explains how the district court judge carefully explained why the Administration was acting unlawfully and why it was appropriate to leave the lower court's injunction in place. 

The court of appeals left it in place. Why should the Supreme Court second-guess the district court? 

Mark Joseph Stern, on Bluesky, noted that Sotomayor's concurrence implies a "deal" of some sort. Toss in the length of time this took to be decided. However, it is far from clear how much the "damage is limited." Are we still hoping for that? 

Another liberal notes:

I have no problem with Sotomayor's concurrence telling District Courts that they can still (as of now) stop actual plans given that the votes to maintain the stays weren't there, but it's still very hard to imagine stays of specific plans surviving Roberts's shadow docket.

The question then becomes, what is the value of that? District courts can try to "stop actual plans," but if that doesn't survive, what does (yet again) overruling a district court judge get you? Jackson explains why the judge was correct here. Sotomayor ("even Sotomayor") blesses overruling them. For what? 

Kagan could have concurred to say that while Sotomayor would continue her cred as a strong dissenter. Kagan has the role of the "reasonable liberal" who still believes in some institutional regularity. If Sotomayor is going to enable the Trump Administration, it should be for something truly significant. As Jackson says, especially at this moment, there is a reason not to do this. 

Why can't the justices just enjoy their recess without enabling the Trump Administration for at least a little while? Or, just release this before now? Oh well.

Amy Howe (SCOTUSblog) actually bluntly said only Jackson dissented, violating the assumed rule that you can't assume justices concurred in such cases unless they explicitly said so. I'm fine with that, too.

ETA: A small bit of sanity. 

The Court rejected Florida's request for a stay to let it start enforcing a state law that creates state-law crimes for federal immigration violations. A lower court held that it was pre-empted by federal law.  

The stay request was rejected without comment. 

Dave's World

 

I watched this show when it was first on, though for some reason stopped. NYPL has a copy of Season 2. It is thinly based on his life (e.g., he has one son; the show has two, neither named "Rob"). IRL, he also divorced his wife on the show early in its run. The show is a comfortable watch with a charming "Beth" and an amusing assistant. 

Happy 4th of July

 

Some thoughts for the holiday. 

Supreme Court Watch: More Orders

I expected a long "clean-up" order list with a bunch of statements and dissents about a variety of cases not taken from the usual suspects. We had less of that this time. Monday's Order List only had a few such things.

(Last year, we had a fifty-three-page final order list. This time it was twenty fewer pages with Sotomayor and Thomas each discussing two cases apiece.)

Today's final scheduled order list before the summer lists was only four pages long, akin to a list after a normal conference. The big news is that they took two cases involving trans athletes. Another case involves regulating where offensive protests can take place. 

The Court did not grant an appeal of a state court opinion protecting the right of minors to have an abortion in some cases without their parents' permission. The challenge raised parental rights claims. 

Alito (with Thomas) wrote a statement that said it provided a bad vehicle for appeal. Nonetheless, not taking the case should not be inferred to agree with the ruling below. The implication is that parental rights claims (at least here) still might have merit. 

Parents of trans children might be an exception. 

Coming Up

For your planning purposes, summer order lists are scheduled to be issued on Monday, July 21; Monday, August 18; and Friday, September 5, 2025. Summer order lists usually consist of actions taken by the Court on motions in pending cases, petitions for rehearing, and other miscellaneous matters. Emergency orders, such as in applications for stays, will continue to be released as required.

There is no scheduled upcoming conference, but it is likely to take place at the end of September. Meanwhile, they are taking a break, though they are still officially able to do business. 

As Steve Vladeck has discussed, before around 1980, the Court truly was in recess, and individual justices had to act in their individual capacities. That is not the case now. They will hand down scheduled orders and can provide others (including for the two executions scheduled this month) as required. 

Trump-related stuff will continue. Stay tuned. 

ETA: The Supreme Court had two order lists, one on Monday and one on Thursday. I was tricked into thinking we were done for the holiday weekend. 

We were not. Another "clarification" of a previous Trump-enabling decision dropped.

Kagan concurred -- she didn't like the first decision but thought the request logically followed from it -- while Sotomayor (with Jackson) dissented. 

The unsigned order references the "provocative" dissent without adequately answering it. 

Happy anti-tyranny day, I guess.