You Never Forget Your First (George Washington)

I read Alexis Coe's first book, a historical drama that has been made into a movie. This book was ready for me in March, but didn't pick it up in time when the NYPL closed. So, it was sitting on the reserve shelf a few blocks away without me having access.

Finally came in (probably not the same copy) recently. I enjoyed it, including its down to earth (but still serious) style with helpful charts and such summarizing various information. (Sarah Vowell's snark and asides after a while is laid on a bit too thick.) The book intentionally is a reasonable length (around two hundred pages) and at the start suggests it is trying to avoid the traditional "masculine" biographies. Not sure how much a "woman" touch here mattered as compared to not being stereotypically traditional. No photos.

House/POTUS Good News (In a Sense)

A reply to my least favorite Dorf on Law contributor annoyed me, but also flagged something useful. Now, it is unclear how helpful it is to his overall sentiments, which multiple replies suggest are somewhat scattered.  Still useful.  So, maybe I owe the person thanks.  Not too much. No one reads this anyway.

My reply also slipped up and made a silly mistake but it didn't really hurt my case in the long run.  Just a nod that online comments (and more edited fare!) will slip up sometimes.  Take the whole content, not just slip ups.  A last bit --  Michael Dorf (his wife recently nicely thanked me for supporting her work in another entry) argued the reference to gerrymandering was specific.  Comments do at times latch on to something without addressing the specific argument.  But, comments can be addressed as is too. 

Partisan gerrymandering has been a subject at many blogs and overall I think it a bad thing. How does it fall?  Well, given Republicans now control state legislatures as a whole, you would think it would benefit them as a whole at the moment.  Likewise, conservatives on the Supreme Court oppose usage of constitutional arguments against it or use a specific dubious restrictive usage of "state legislature" (see the post) to restrict the power of the people to respond. "Both sides do it" takes you just so far.

I still am not really sure how much net nation-wide partisan gerrymandering is a problem. To get to the point, per the NYT: Democrats received 76,797,776 votes (50.7%) and Republicans received 72,582,488 votes (47.9%). There are four races not decided yet.  Dems by proportion would get 220.5 seats there. They have 222. Republicans would get 208. They now have 209. (again NYT numbers)

(Wikipedia tells me Republicans received 44.8% of the vote in 2018. That means they improved by 3% which is currently the difference between the parties too. That to me comes off as a small number that is quite open to fluctuation.)

Now, why those votes split that way very well can be explained in various ways. It is likely fairly complicated.  So, e.g., in specific states that partisan gerrymandering might have helped one side. The issue there is to determine nation-wise how that balances out.  That would require a complete parsing of the numbers. 

Both parties gerrymander; one party these days seems more open to voting rights legislation to address that and other issues.  But, I don't know.  And, in specific cases, maybe voting id laws and so forth matter.  If they don't, well, why do Republicans support them so much?  If we want to be all cynical (realistic), these things would be motivated in some fashion by pragmatic hard results. 

Anyway, Biden received 51.3% vote. So, he has a slight plus from the House vote, though would appropriately be leader if we had a parliamentary system.  Again, this is all interesting, and somewhat reassuring. Biden won around seven million more popular votes than Trump.  Merely by percentage, his vote total would be in the 270s of the electoral vote.  Is it a "landslide" when you are within a poll margin of error of winning the popular vote?  Seven million is a lot.  It is less when it is a fraction of 155M.  Still, rounding off, we are talking a four percent swing.   

Sounds less than "seven million" in a way.  Anyway, the problem as pointed out by Paul Campos at LGM (see blog roll) is that in the states necessary to avoid an electoral tie (Pennsylvania and Michigan not enough), the popular votes are in the tens of thousands.  Too close, if far enough to match the vast majority (until this century) of times where the winner also got the popular vote.  Again, the recent trend is troubling, and constitutional requirements can make it even more of a problem in upcoming years as population shifts might really unbalance things.

How about the Senate?  I will rest on the other two, especially since the whole Senate isn't elected at once. The balance overall from past information is less likely to be satisfying.  Maybe, not as bad as it might seem, but then the two senator rule inherently is a lot more problematic than what amounts to rounding errors that can be fixed to a large extent by expanding seats. The House, at least, even with problems of small states like Wyoming and existing gerrymandering, does seem again somewhat reassuring.

All the Republican popular votes still to me is rather troubling. 

Scarsdale Creche (with some old case citations)

Those in the know had some fun over the years regarding holiday display cases though only a few were specifically decided by the Supreme Court in the 1980s and 1990s.  Lynch v. Donnelly started things along with "context" only becoming more important over time.  Somewhat related cases involving how far the government had to allow religious groups and speech as part of a wide whole also were part of the mix. 

The charm there was to find displays that were part of some wider holiday message, so people made fun of some sort of "two reindeer rule."  There also were at least two types -- some locality sponsored a display, or didn't want to, and got in trouble for selectively trying to separate church and state in that fashion (or avoid controversy). 

The next generation of cases involved Ten Commandments and crosses.  The latest -- in 2019 -- yet again splintered the Court, but context factored into the plurality (by Alito) too, symbols around a while and with mixed messages especially factoring in.  Alito doesn't seem like someone who would craft some sort of middle path but he does have a pragmatic side to advance his ends.  

The Scarsdale creche case split the Court with Powell not taking part; it eventually settled the question with some new membership in the mid-1990s.  The district court in the Scarsdale case (pre-Lynch) held that a freestanding creche on public land took meaning from the land -- it was in some sense reasonably taken as "public."  And, being a religious symbol, this was an illegitimate advancement of religion (later we might say "endorsement").  Some sort of disclaimer sign would not solve things. 

So, the village could deny the right of a private group to place it there, even if it did allow other stuff like Girl Scouts related activity.  And, that is what it did -- the two courts (intervening law leading the appellate court to reverse) spelling out the decades long growing controversy.  As early as 1960, the American Jewish Congress writing a letter deeming a creche on public land as violating the principle of church and state.  And, a lower court even before that -- in the 1950s -- rejected such a request. 

Justice Brennan -- who years later dissented when a display with a creche was upheld -- flagged holiday displays as an issue in FN74 of his opus concurrence in the bible reading case.  The Scarsdale opinions (Supreme Court evenly divided so had none) provides a few previous display cases to get you started here. Follow the links and you can find various opinions with various nuances and results.  One back in 1971 involved a Christmas pageant for which a creche was singled out.  A lighted cross crossed (natch) the line in 1981.  But, not a religious statue back in the 1950s.  Interesting proviso might have been from the 2019 case:

The only restriction against the City is that it cannot discriminate. That any statue or monument might incidentally have some religious significance cannot be held violative of the constitutional prohibitions, unless it was designed and used as a public shrine or place of worship, or for the propagation of a religious belief; or was intended to hold some other religious group in public contempt and ridicule; or designed to cause religious strife and antagonisms.

One district court rejected a challenge of a Christmas postal stamp in a verbose decision that argued that federal courts using judicial review too broadly to strike down other branches even threatened the right of the people to govern themselves (republican form of government).  But, it decided in the end to go the the merits, though after some more verbiage (including how oaths, chaplains etc. show the government's contact with religion is diverse), it basically said the challenge was stupid ("remote and far-fetched as to be entitled to but scant consideration").  This was in 1967.

I think the Scarsdale district court has some bite.  The people of Scarsdale through their representatives determined that a creche on public land would in some basic way be a public endorsement.  It was not like the a Red Cross display or something.  A back-up argument made (emphasized in the Supreme Court oral argument) was that the display was a controversial message and a freestanding display of that sort could be blocked.  A person speaking in that respect was not the same thing as a display just there. That's perhaps dubious.  But, the First Amendment singles out concern for religious establishments.  

(Justice Stevens dissent in the 1990s case would leave open the power of the government to exclude certain controversial speech, something reflected in his opinions over the years, including his dissent in the flag burning cases. Displays left unattended very well has some implication that the government endorses the message -- the examples cited in the cases are generally of that caliber. But, religious displays would be easier.  Another might be something like hateful ones like a Confederate symbol that might raise other constitutional concerns.) 

The district court noted that it was this type of display that caused concerns.  And, some sort of disclaimer would often not be seen while one passed by and there would be continual dispute on whether it was big enough etc.  It would be a continual dispute that would result in religious entanglements.  And, the community was not required to keep all displays from the village square, including thermometers for some Red Cross drive or arts and crafts stuff.  (This came up again in the 1990s case and the median position went the other way -- disclaimer etc. acceptable). 

Plus, there was likely only a limited number of religious displays, some religions actively opposed.  This results in likely favoritism. On the other hand, the village still allowed various public displays of religious activity that did not cause similar controversy.  Religious groups had meetings in parks.  Carolers sang.  There were invocations [at some point, problematic in my view; but put that aside].  These were personal expressions as a whole; again, the invocations would be to me a separate issue.

But, a continual presence of a creche on public land in context was a bridge too far. This in part was because the whole point was a concern to have a stronger religious symbol that in some fashion had a public imprimatur.  To "keep Christ in Christmas" (see Lynch) one might say.  The line there very well might be tricky, but lines always have to be drawn.  A symbolic representation of a sacred event can reasonably be treated differently than a tree or Christmas lights. Others disagree, especially if it is part of a wider display.  A diverse society warrants such concerns. 

Context and specifics. The court of appeals again [continuing this post] overturned the district court, noting an intervening Supreme Court case, if one the advocate tried to distinguish (his oral argument time per Oyez.com was mostly spent trying to argue that public forum law did not establish a right to have freestanding controversial displays).  He spoke of a creche standing alone and how in that case the local government actually supported the display.  Here there was public opposition.   

A later Supreme Court opinion split the justices various ways but a creche standing alone was deemed a bridge too far in that opinion out of Allegheny.  As, here, the fact that there were other expressions (to quote the appeals court here) of "the Christmas Holiday season" such as a tree was not determinate.  A specific "passive" symbol as noted above can be different than specific events tied to a person or bland references like "Merry Christmas."  "In God We Trust" is not the same as "Our Father."   It is not all/nothing.  The opinion followed this approach up to a point (display not permanent etc.) but reasonable minds can disagree if they did so enough.  Why not give the tie to the locality unless otherwise warranted by bias or some such? 

And, the appeals court disagreed in degree about the sign: it felt it would be important to disclaim endorsement but that "size, visibility and message of an appropriate disclaimer sign or signs" should be addressed.  It was concerned about how children understood the display, but argued there isn't enough evidence to find that too worrisome.   So, overall, it is somewhat unclear if precedent alone determined the result here.    

Over the years, I have been somewhat more accepting of the acceptance of these symbols on public property and in displays expressly supported by the government.  But, I continue to think these disputes are helpful to understand and respect wider principles.  The opinion referenced "Christmas hymns and carols," for instance -- well, they are mixed. We do allow Rudolph and Silent Night.  Just goes to the diversity.  

And, though "Christmas lobsters" (Love Actually) might seem silly, the best approach there is diverse; not just Christmas.  The creche there seems more singular to me though if it is truly part of a wider holiday display, it would be a lot better.  [I also covered this case four years ago here.]

Your NFC Least Leading Giants (At this time)

Giants, who played good enough to win versus bad competition (once getting the benefit of a team that went for the win and were stopped), lead the division given tiebreaker. Bengals had a shot to go ahead late but "were the Bengals." Giants actually had a shot to win versus Tampa that one time. Get to the playoffs, who knows; they might win one.

Jets were the Jets, not even taking the opportunties given to them. Missing a short FG near the end of the First Half included. 0-11; still think they will manage a win somehow. Bills scored enough points to win. Pats won close one so their wild card chances are still alive. ETA: Giants QB status up in air; possible "quarantine QB" signed.

Holiday Display Post

For a long time now, I have read (and now listened to) holiday related Supreme Court cases during the Christmas season.  Some time back, it required a trip to the library to obtain easy access to opinions like the classic County of Allegheny creche/menorah/tree case.  Now, it is easily obtainable, including lower court opinions (there being a lot) that go back at least to the 1970s.  

[Since I'm a nerd and all, this was edited, and I will later on provide at least one more post, after doing some following of links related to a 1980s display case.  The lower court opinions are to me rather interesting.]   

See here for one extended discussion by me. I need not repeat myself too much.  As I said there, Justice White had an interesting take on things -- in an early case involving Missouri (later popping up in the Trinity Lutheran case) wanting to uphold a strict separation even as to religious organizations on college campus (rejected with him alone dissenting), White said he would allow discretion in both directions. 

He flagged something that actually came up years later -- religious groups that blatantly sought to use schools etc. for church services.  OTOH, his drawing the line at "worship" in that case suggests his way does not quite settle what happens when the government allows freestanding displays, but wishes not to allow a freestanding (no person there) creche or something.  I would allow the state to at least decide to do that, which was not how the Supreme Court wound up handling things. 

But, check that earlier entry for a wider discussion.  The proper dividing line -- as seen in the recent case on Thanksgiving -- when regulating things that touch up religious exercise again is in dispute. Before, the common approach was to treat it as a free speech matter.  If you open up a "forum" for something, you could not treat religious groups differently, even if it involves collecting money for a club that puts out a proselytizing publication.  At some point, I found that artificial.  

[Religion is singled out in the First Amendment. In two directions. Religion can be part of other provisions, but to cite the Bible and Dickens as both forms of expression is a tad simplistic. So, yes, if a  public school decides religious instruction of seven year olds in after school programs are a bit different from secular programs, it very well might be okay to do so.]

Religion makes things more complicated.  But, these days it is straight out concerns about free exercise, including pushing for special dispensations.  Again, religion has complexities ... up to a point. A public accommodation can be required to follow civil rights laws, even if the owner has a religious motive not to serve black people.  I'm starting to respect more the dissenting opinion in the Sherbert v. Verner, which argued the government can allow a religious exemption to work requirements when handing out unemployment insurance, but it isn't somehow constitutionally mandated.  At the very least, the individualized benefit there is logically treated different. See also, Oregon v. Smith.  

Statutory exemptions as well as civil rights laws are prime ways free exercise of religion is promoted. In this country, however, there is a great belief that there is also a range of constitutional liberty that is protected by the courts above and beyond that.  Free exercise of belief, a hands off policy for religious organizations and making sure laws are generally applicable (a term that pops up in the Amish case in the 1970s, Wisconsin v. Yoder) are three basic ways it is upheld.  

A fourth is something we take for granted -- people freely get to express their religion in a myriad of ways without it be targeted not only selectively (discrimination) but in a more general way.  France has a more strict policy of secularization and we can imagine merely wearing religious apparel or a small cross while in a public job would be deemed inappropriate.  General applicable laws very well might somehow include that sort of thing, again if civil or criminal law is a general approach toward regimental program or something.  But, as seen in the first set of Supreme Court cases in the "modern era" involving Jehovah Witness proselyting in public, the restrictions often are selective in form or effect.  Overall, in lots of ways, religion is not at risk to be taken from the public square though that is repeatedly (up to the current day) a straw-man offered. 

The trick comes when neutral regulations of religious acts are involved, particularly religious acts that cannot be framed as speech or association.  At least on the Supreme Court level, the one case where this popped up in which the justices allowed a special dispensation involved letting the Amish take their children out of school after the eighth grade, not at sixteen.  The case involved only seven justices, two vacancies being handled, and Douglas worried that the wishes of all of the children were not being confirmed.  Three other justices were wary but figured the exemption was minor (basically two years of schooling) and the Amish case strong. 

The majority opinion tossed in various details including the long time existence of the Amish and the fact that traditionally children work on farms (major reason for compulsory education to avoid child labor) anyway.  There was enough hedges, including how education and parental involvement there itself factors in [if not quite the "hybrid" right argument used to handwave it in Smith] to make it not enough to settle all questions involving religious based actions that violate generally applicable laws.* 

Plus, the Amish's case was not really as strong as all that -- why couldn't they set up a private vocation school, one a bit more than the three hours a week of ordinary subjects their side while negotiating offered as an alternative.  And, their religion would not be somehow destroyed if the children had to go to two more years of school. Traditionally, the "elementary" education they support was a lot less intense than what even in the early 1970s arose in junior high.  This isn't quite denial of a sacramental drug akin to denial of use of communion wine in a dry county.  

As I noted in the summary referenced earlier, line drawing in these cases often is not exact, but sensible lines still came be made even if they might not be as clean as some would like.  The trickiness suggests that religious exemptions often should be a policy question, which like much policy does not trivialize the importance of the subject.  Plus, as cited above, certain specific areas would go above all that. General employment laws does not make hiring only male priests an actionable civil rights violation.  That very well can mean unfair treatment.  But, even there, basic employment rules for church employees can be set forth.  Safety laws deemed ungodly can be enforced.

Anyway, with the Barrett Court, I look for a case to be taken to clarify religious displays, and not just longstanding ones.  The status of a newly established holiday display very well might be clarified at some point.  I still find the separatist approach sound, even if only Sotomayor is left that might hold true with Breyer and Kagan going along at times as seen in Town of Greece invocation case. Let's see how much of a mess develops.

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* I am sympathetic to the dissent in the peyote case, especially taking everything into consideration.  Religious practice very well includes acts that sometimes might be regulated in some fashion and religious liberty respects that we do not officially wrongly favor some in the process. 

Given the range of religions, this can be very tricky if honestly and consistently done.  Problem is that this often s not done, including by those who proclaim RELIGIOUS LIBERTY AT RISK. A good approach in these cases is to try to avoid a major decision, a sort of in between approach. Not reach out like the Supreme Court did (then and now).  This very well, to be honest about it, probably includes some things that I rather not authorize.  Or, at least, as I have said, recognize there are degrees. "In God We Trust" very well is problematic.  But, it isn't the same as crafting a full prayer.

The state court treated Oregon v. Smith as an unemployment benefit case and that is really what it was.  Oregon did not enforce its peyote laws.  The general applicable law very well made it sensible to give the state some more discretion, but taking everything into consideration, including the fact that a core religious function (sacrament) was at stake, the result was easier than Yoder.  And, RFRA (and more?) was the (over)reaction.

Cannery Row

I have a few books waiting for me at the library, including a non-fiction one by John Steinbeck growing from his travels with the guy that inspired "Doc" in Cannery Row and its sequel Sweet Tuesday.  Read at least the first one years back, maybe connected to watching the film.  Tortilla Flat, based on earlier novel, was television some weeks back.  I checked out novel and soon grew tired of the "lovable losers" that the book were about. Cannery Row has a gang of them (led by Mack), but only as part of the mix. 

My copy looked like it was from the 1945, a small cheap looking fragile thing and earlier on its one hundred and thirty or so pages was fairly easy going, but seemed to take me a while to read. Like there was enough for a vignette, but reading the book (with shades of color and character bits that reminded a bit of Justice William Douglas' writings about nature and people he knew, but then there were sorta of the same era and locale -- Douglas growing up in Washington State, this taking place in California) would be a bit much.  Still, the second half went down fairly well. 

The whole book had a somewhat bittersweet feel to it (Roger Ebert says the film was rather fake and the characters come off as too saccharine, but don't recall it much)  though the author has respect for its characters.  The frog hunt was a well done vignette, including Mack (logically played by M. Emmet Walsh in the film, though Ebert doesn't even reference one of his favorite character actors) laying on the charm/con when the gang (shades of an older Bowery Boys -- the first novel takes place in the 1930s) meets up with a local with his dog.  Then, there were a few rather dark moments, including a boy being taunted to talk about his father's suicide.  Think it could make a could limited series. 

Just started to read the second, longer novel and wonder if it will be too much -- the book might not really be double the length of the first, since it is a more sturdy copy with bigger font. The sequel explains the name of the new madam (Ebert, not liking the movie much, did his thing where he takes potshots like "She goes to work in the local cathouse, where the madam is named Fauna, maybe because Flora was already taken."  If he likes a movie better, he lets that stuff go more often.)   In the movie, the actress that played Mrs. Roper plays the madam, another bit of casting that fits one's mental image of the character.  

(Got tired of the book -- doesn't look like I will read most of the sequel, which is longer with more vignettes.) 

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The leads in the Hallmark film Christmas by Starlight (a pun on a cafe which plays a role) recently were also in Wedding Every Weekend, which I liked better.  Both tossed in some gay friendly stuff, the first having an assistant being a gay married (his husband pops up) and the second including a lesbian wedding.  Both leads were in other Hallmark fare (e.g., she pops up in the Nine Lives of Christmas, which is aired repeatedly over the years), but Paul Campbell in particular pops up repeatedly.  

Those familiar (like me) probably amused his future father-in-law (not a fan, at first) in Surprised by Love now played his father, if a similar sort of character.  The film itself had shades of Two Weeks Notice (itself pleasant enough though Alicia Witt was kinda too nice as the alternative love interest*), where a liberal minded lawyer winds up counseling a rich boy business person who she would naturally scorn, but soon becoming quite good at it.  Here a liberal minded lawyer works as a sort of temporary babysitter/advisor of the Paul Campbell character, who is not taking his job at his dad's firm seriously enough.  The firm plans to seize the family business as part of a business deal and he promises to help if she pretends to be his watcher. 

But, it's Paul Campbell -- he always plays a down to earth reliable sort (deep down), and his true nature comes out soon enough.  So, when complications seem to be ready to come out (and not very smoothly) with over a half hour left it, I turned it off.  It was pleasant enough but didn't quite have enough content to fill two hours.  At least, with so many of these films and all, there has to be a certain mix for it to be enjoyable.   Their last film had more story and the multiple weddings to ease things along.  

Nice they tossed in the gay couple. The Kristen Stewart film also had an interracial couple. 

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 * The movie, like various light-hearted fare  over the years, has a reference (here a cameo) to Trump.  From now on, each time that comes up, including Chandler and Monica's Trump sighting in a charming episode where them both seeing him helps Joey figure out they are a couple, it leaves a bad taste in my mouth. 

Trump Court Arrives (and Mike Flynn)

My Thanksgiving dinner went decent enough though the political talk was depressing. We had the older Fox News person (though even that person accepted it was over and thought Trump should concede), potshots at AOC, someone laughing at some woman being so tearful after Trump won the first time, people not voting (or taking part in the census) etc.  And, this from people who on balance are reasonable on various issues.  Up to a point.  The person who staid silent did do the census.  

Let's move back to much earlier in the day.  Not for the first time, my belief that nothing more would come from the Supreme Court was premature. After announcing they would follow protocols and so on, will have another telephonic session in January, well, it's worth quoting at length:

The Supreme Court will hear all oral arguments scheduled for the January session by telephone conference, following the same format used for the previous teleconference arguments. In keeping with public health guidance in response to COVID-19, the Justices and counsel will all participate remotely. The Court building remains open for official business only and closed to the public until further notice. The Court will continue to closely monitor public health guidance in determining plans for the February argument session.

That was in the morning (or early afternoon).  Twelve hours later -- note the ridiculous post time of this summary -- Super Spreader Barrett was the deciding vote in her first case, one that couldn't be more fitting (her first vote in a substantive order, probably -- since only the liberals voted on record, which again to me is stupid and silence should imply consent -- to uphold an execution also is a tad appropriate given her co-writing an article about Catholic judges perhaps having trouble in such cases).  

I woke up in the middle of the night and checked Twitter as one does before dozing back off and saw the news, summarized at SCOTUSBlog as "Justices lift New York’s COVID-related attendance limits on worship services."  The opinion was basically advisory (see below) and in that fashion it truly was as much as a decision as a symbol of the future, including from some analysis if you parse its language.  It was unsigned though Gorsuch and Kavanaugh, one preachy/the other "look! I'm reasonable," showing their different styles.  Chance the third Trump pick wrote the per curiam.  

[An additional thing -- the opinion notes that the request for relief was sent to Justice Breyer, who was assigned the 2nd Circuit -- the matter arising in Brooklyn -- after RBG died.  This just adds to the fitting nature of the whole affair since the new membership was key to the result. Again, Sotomayor now has the 2nd Circuit.  Sonia from the Bronx did good.]

Roberts followed his trend of not wanting to intervene in any COVID-related case and dissented.  He noted that the rule seemed extreme, but it wasn't even really being applied since the changing nature of outbreaks (a basic reason he wants to have a hands off approach) made that matter moot for the people involved.  Breyer and Sotomayor (more strongly ... Kagan again joining) argued it was reasonable.  Roberts wouldn't go that far but was annoyed Gorsuch did a Gorsuch and ranted about how unreasonable* the other side was being, including himself actually.  

Sotomayor throwing the Muslim ban case back on the majority that suddenly is concerned about religious liberty was a nice touch.  The reference in the opinion about constitutional rights being around in these times wasn't as much a concern when prison conditions, voting rights or federal executions were involved either.  The gratuitous ruling, dropped late in the evening the day before Thanksgiving (why not at least flag the result at a more sane hour and then drop the reasoning later?), was not only bothersome given Amy Coney Barrett (thanks to Senate more concerned about the courts than our health) but thinking about how city schools were closed for Big V concerns.  

One can disagree with the policy here, but that still doesn't make the result much easier to take for a variety of reasons.  Dated Thanksgiving, we then had the POPE dropping a COVID related op-ed that included this bit:

With some exceptions, governments have made great efforts to put the well-being of their people first, acting decisively to protect health and to save lives. The exceptions have been some governments that shrugged off the painful evidence of mounting deaths, with inevitable, grievous consequences. But most governments acted responsibly, imposing strict measures to contain the outbreak.

Yet some groups protested, refusing to keep their distance, marching against travel restrictions — as if measures that governments must impose for the good of their people constitute some kind of political assault on autonomy or personal freedom! Looking to the common good is much more than the sum of what is good for individuals. It means having a regard for all citizens and seeking to respond effectively to the needs of the least fortunate.

Note that the opinion and votes also applied to a Jewish religious services related case.  Anyway, I was truly pissed at this ruling, in part out of rage and feeling of hopelessness (often a combo) related to the Supreme Court pick. We will have years of this and dreams of court expansion -- which always was something that I was pessimistic about -- no longer very realistic.  The best you can hope for is 50-50 and  Biden's judicial picks getting a decent hearing.  And, this is a hope, even though BOTH Georgia senators have been caught in inside trading like allegations.  Putting aside their other issues.  

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In far from surprising, but still also anger inducing news, Trump pardoned Michael Flynn.  This whole clusterf to me was a basic symbol of where were are.  This guy was supposed to be Trump's national security advisor but then Trump fired him (this is almost four years ago) and then had a plea deal with Robert Mueller.  And, from all that I can tell, he was likely to get at most a few months in prison. But, then he got a new wingnut lawyer and took it back. And, the damn thing dragged on and on. THEN, the Justice Department got involved, going so far, that it pissed off the judge. And, THAT was a long dragged out affair that was not over yet.  

The whole thing has so many moving parts that it boggles the mind, including just how bad Flynn's actions are, how the Justice Department eventually basically broke the sanctity of the independence of the Mueller investigation and so on.  Here's the official statement, which again is on the White House page (this was a theme before), not just some Fox News rant.  But, on some level, given pardons can be idiosyncratic affairs, it is better than abusing the Justice Department for the guy.  

We already had Roger Stone being pardoned.  Trump basically got away with his involvement in 2016 election skullduggery, including obstruction of justice arising from it.  This really bothers me on a basic level.  Susan Hennessey on Twitter strongly criticized the pardon here, but then went on an "on the other hand" run that pissed me off.  For instance, she said the election "cured" the problems in the Justice Department.  Did it now?  The department will be tainted for years, including more ammo for people basically cynically nihilistic about the government overall. 

This is from someone who supported impeachment.  Did the election "cure" that too?  Elections are for policy differences, basically, though we are talking some serious things here too (and not just those, yes).  But, impeachment etc. requires more than that.  They involve a special violation of norms and basic principles of how the government should be run that should not be up for a vote, with each side on some level deemed legitimate, if one side having a better case.  And, she basically watered down both his crimes and Flynn's failure to support the investigation (as part of the original plea deal).  Shades of Marty Lederman earlier handwaving the need to prosecute, you know, this isn't some drug case where we need to worry about that as long as the principle was upheld. 

 (Looking at the specifics, the pardon looks rather broad.) 

Is it January 20th yet?  

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* Roberts:  To be clear, I do not regard my dissenting colleagues as “cutting the Constitution loose during a pandemic,” yielding to  “a  particular  judicial  impulse  to  stay  out  of  the  way  in times of crisis,” or “shelter[ing] in place when the Constitution is under attack.” Ante, at 3, 5–6 (opinion of GORSUCH, J.).   They  simply  view  the  matter  differently  after  careful  study and analysis reflecting their best efforts to fulfill their responsibility under the Constitution.

This is one of the times when Roberts comes out on top, looking to be a reasonable sort, but you know dude, got to take the bitter with the sweet if you want to vote with this crew.  The last sentence is one I kept on saying over the years when some conservatives railed about how liberals (or "the Left") make shit up while they are principled types.  I sometimes even say it about conservatives in response to comments by liberals.  Still generally feel that way, but "best efforts" can be dead wrong. 

ETA: I like Mike Dorf and Eric Segall (Love Story was on last night; he isn't the author -- that is Erich Segal) of Dorf on Law and Dorf's wife too (Sherry Colb) though she doesn't blog much these days.  Dorf with his old writing partner (co-wrote a book) has an op-ed on the New York case that overall says things well.  This is well put:

The risk of coronaviral spread is not merely a function of the number of people at a venue; it increases dramatically as they linger in a stationary position, especially when they speak or sing.

So, no, even if you spend a long time at the Shop & Stop on Sundays [as I sometimes did], it isn't the same as a church.  

Also, even if you support the result, it is a bad decision. The basic message is that they had to decide since we simply don't know when the alleged overreaching will apply again. But, that time has not come yet.  Why not have accelerated argument on the question?  I realize that might be harder given the complexities of the time, including the justices sheltered in place.  Still, full argument would give a more respectful, complete hearing to all.  The end result very well still might have been wrong. 

But, better than this. 

Lesbians and Daffy Duck (In Different Things)

I referenced television holiday movies along with a recent attempt to add gay/lesbian (trans yet?) diversity in a comment elsewhere and someone flagged Happiest Season, a Hulu entry that came out for Thanksgiving. It was a romantic comedy (with serious themes) involving a woman taking her girlfriend home to meet the family, letting her know on the way there that she isn't "out" yet. 

The plot interested me as much as the cast and figured it was worth a trial month at Hulu. And, it was pretty good though at times it did have some television movie like vibes. The cast particularly helped papered over some slower spots and it had a good overall message.  Now that I have the month, perhaps I will watch a few other things, getting a little taste of all that extra content that requires paying for some additional platforms. 

Among some free books left outside my local NYPL branch (still not reopened), I saw Daffy For President, an amusing and actually educational book that was given out back in the day to go along with some Bugs Bunny stamps. A few years later, a cartoon version was made, mostly loyal if a bit different. The book might be of some benefit for some of the new crew in Congress and so on. 

ETA: NY Daily News printed a letter of mine referencing the book!