SCOTUS: Low Drama/Trump Guys Split Along Edges Again

Low drama order day with a grant and disagreements from Thomas (joined without opinion by RBG and by Alito) in two instances. One liberal each (minus RBG) wrote the opinions with Gorsuch joining them again on tribal rights (here with more federalism concerns) while also going it alone on one (wanted to DIG) and didn't (unlike Kavanaugh and Roberts; Thomas concurred separately as well) go along with a fairly dismissive concurrence by Alito in a pre-emption/agency case, a potentially divisive area. Execution later in week.

Girl in Black and White

I first learned about this interesting book about a girl whose photograph (and presence) was used as an anti-slavery symbol as well as various interrelated stories (including her legal owner being the result -- unclear how exactly -- of a white teenage girl and an older slave) via CSPAN. The author promised to give twenty-five percent of the profits as a form of reparations.

Death Penalty Watch

As summarized here, it seems like the conservative justices are still a tad bitter about recent death penalty actions.

The separate opinions are conveniently separated on the "opinions related to orders" page, which brought a bit of a surprise on Monday -- Justice Alito (with Thomas and Gorsuch joined; they dissented without opinion before) added a dissenting opinion to Patrick Murphy's case, which was handed down a month and a half ago. I am not aware of this happening before though new knowledge on a certain fact led to an addendum to Kennedy v. Louisiana years back.  But, it's good to have everyone on record now, assuming that the liberals basically implicitly held to their previous position in the earlier case involving a Muslim prisoner.

Kavanaugh (with Roberts this time) again added a concurrence, laying on the "respectful disagreement" language. If you toss in the Thomas reply (same breakdown, this time with no comment from Kavanaugh) to Breyer's dissent in the Price case (back to the Supreme Court after some late night drama last time, so found with the original Monday orders), one can understand his felt need to do so. That dissent was a tad angry, starting with the gratuitous (a method of execution case, it simply was not relevant) citation of the facts of the crime. Breyer and Thomas is repeatedly all buddy-buddy during oral argument, but you know, there is some bad blood there.  The delays of executions clearly upset the conservatives.

I'm not fully able to parse the difference between the two cases involving wanting a minister other than designated Christian minister available, but am inclined to agree with Kagan and the liberals that the difference didn't deserve different results (one is dead; the other's execution is still pending).  Somewhat ironically, Alito (who has shown some consistency here, to be fair) went into more detail in examining the religious claims, leaving open a chance that there might be a statutory free exercise (RFRA) argument in the appropriate case.  Kavanaugh assumed a state had a strong enough interest to protect the execution room so could (equally) require any minister to just stay in the observation room.  Since states regularly allow ministers to be there when the person dies, I find this questionable. 

The  circumstances  surrounding  Zagorski  and  his  fellow  prisoners’ attempts to prove that   pentobarbital   was “available”  demonstrate  how  unfairly  this  already  per-verse requirement is being applied.   For  one,  the  prisoners’  ability  to  prove  the  drug’s  availability  was  severely  constrained  by  rules  of  secrecy  surrounding  individuals  involved  in  the  execution  process.

The other brief statement was from Sotomayor (she references an early opinion from which that quote is taken) on her continuing concern about how lethal injections have been carried out.  She also added how state secrecy laws wrongly inhibit inmates (First Amendment claims have been made here as well) from obtaining necessary information. The defendant here, checking the docket page, had a conservative group against the death penalty submit a brief flagging due process problems.

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Two executions were scheduled for May 16th. Going by how these things go, it was therefore somewhat surprising (maybe they are learning?) that (without recorded dissent) the Supreme Court disposed of Michael Samara's appeals (habeas and stay for execution tied to that) two days before. The claim raised was that current standards of decency, as result of practice and scientific knowledge, warrants the floor be raised from 18 (his co-defendant was sixteen at the time, so had his own death sentence overturned) until 21. There is some grounds for this. But, obviously, THIS Supreme Court is not likely to be that open to it.

Samara was 19 at the time of the crimes back in 1997. The crimes involved, by gun and knife (ran out of bullets) murdering four people, two children, by one account: "According to statements made by co-defendants, Duke instigated the bloodbath because he was angry at his father for refusing to let him borrow a pickup truck." This being in Alabama. The defendants' own brief spelled this out, perhaps to show how reckless and immature the whole thing was.  Duke being the sixteen year old.  The deterrent effect of this rather unclear, we are left with retribution.

I assume the family and personal dynamics might be a bit more complicated than being mad at the father for not letting them borrow a truck. The retribution value of executing a few heinous murderers, even beyond the fact that the teenagers here weren't torturing strangers for sport or anything, still alludes me.  We have a general problem with dealing with violent crime the wrong way in this country.  But, executing a few people among the unfortunately numerous horrible cases of violence that more often than not tends to have such a personal connection has a certain symbolic uniqueness to it.

[Some suggested there was inconsistency with the state passing a strong anti-abortion law while at the same time executing someone. Tad simplistic, especially when noting the law provides a few minimal exceptions while this execution involved someone who helped murder four people.  We aren't all Jainists here. There are possible differences here without people being total "pro-life" hypocrites.  Even the Catholic Church thinks there are some cases where taking life might be valid.]

Donnie Edward Johnson (Tennessee) is the other case. It's one of the more blatant long outstanding cases, the murder being carried out in 1984.  Furthermore, there is a claim that life imprisonment (at least long term confinement) had rehabilitation effects. In fact, the daughter of the victim (he murdered his wife) now is asking for a reprieve. Like a New York case from years back, however, her sibling (and his own son) disagrees.  Anyways, the governor who ran focusing on his Christian faith said "nope." And, yes, if another person of a different faith had a similar redemption story, we should consistently support not executing the person.  Likewise, there is a good chance that in some cases a Muslim inmate might be treated differently.  Such discriminatory sentiment is a separate concern. [Both were carried out apparently without a hitch.]

There is one execution scheduled each the next two Thursdays.

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Meanwhile, in the face of years of sketchy drugs from overseas sources, the Justice Department put forth an OLC opinion arguing that the FDA does not have jurisdiction over execution drugs. The conservative "the death penalty is constitutional so we need to give states more discretion to allow them to carry it out" argument was raised. Power over drugs for euthanasia (including for animals) left open. This clashed with FDA judgment and of course Obama Administration policy. The FDA for one thing refused to assume denying states from obtaining unauthorized drugs from overseas would block capital punishment. They could obtain drugs some other way.

Plus, to toss it in, there are other means to execute including nitrogen gas and the firing squad.  The regulation of euthanasia drugs suggests that just because a drug is used to kill someone doesn't mean the Food and DRUG Administration has no power over it.  It is not a drug used for personal use that might fall under the DEA. Executions involve a barbiturate, paralyzing agent and something to stop the heart. If the drugs do not work, the execution might be botched, including causing severe pain. It is the sort of thing the FDA is there to regulate.

Anyway, there is an injunction in place now, so it is unclear where this will lead.  But, the goal is help the states out obviously.

Two Books

After Rachel Held Evans' death, I started to read some of her stuff, and just read her book on the Bible (Inspired). Appreciate a religious publisher released this liberal-minded take. On a quite different subject, if with a similar progressive mind-set, The End of Obscenity is a 1960s book (brief 1980s introduction somewhat curiously suggests little change in the law since then) concerning the author's work in defending three books. The title isn't quite accurate but the journey is well worth it. Found it via a book on the Warren Court.

SCOTUS Watch: Kavanaugh Has His Day

And Also: Extended episode/series finale of Veep had Selina go full "anything goes" to win. Eh. Parts were good (Kent and Amy being appalled at the idea of Jonah being VP was a highlight), but overall, damn the first five seasons were so much better. Compare this with some of the episodes in the fifth season run for President. Nice to see Sue.

[SCOTUS later separately released an order spelling out a schedule for briefs in the GLBT discrimination cases.  Amy Howe of SCOTUSBlog told me per a question on Twitter that "it's just about the timing of the briefs, presumably so that the parties with the same positions wind up filing their briefs at the same time (even if they are petitioners in some cases and respondents in others)."  I thought it a bit curious they singled it out.]

Some drama in the orders (I will wait to address the death penalty matters until later in the week when two executions are due to occur) and opinions. Kavanaugh playing a key role.

There does not appear to have been any major developments regarding grants, a few hot button cases involving abortion and immigration still pending. Roberts with the conservatives, minus Gorsuch, dissents from a "GVR" that the solicitor general requested in an Armed Career Criminal Act (a repeat replayer in recent terms).  This is one of various cases where Kavanaugh and Gorsuch split on details. See also, another dissent from denial by Alito (with Thomas and Kavanaugh) wishing to take a First Amendment case involving a nasty complaint by a prisoner.  I will skip the death penalty orders, but briefly, Kavanaugh (with Roberts) either stays out of the nastiness or dissents from it.

Kavanaugh provided the fifth vote with the liberals (now the only one who has not done that among the conservatives is Alito) to allow an anti-trust lawsuit against Apple to go forward.  Gorusch led the dissenters. The case is of some significance but the specific opinion is of moderate note.  It's a reminder that the justices aren't always going to be 5-4 in typical directions.  The law, especially statutory interpretation, is not that clear-cut.  Still, there are general trends, especially on hot button issues, and people are not just imagining an ideological partisan split here.

Thomas wrote two opinions, one a typical one for him -- a rather boring false claims statutory dispute (with no separate opinion). The other is basically the big case of the day if one with apparent limited reach. Concern here is that it overturned a forty year old precedent (written by Stevens but joined by Powell, suggesting it wasn't really a threat to states rights) involving an ideological issue -- state immunity.  Breyer via a crisp dissent wrote for the liberals in a way that some see in effect as a subtweet about Roe:

Can  a  private  citizen  sue  one  State  in  the  courts  of  another? Normally the  answer  to  this  question  is  no,  because the State where the suit is brought will choose to grant its sister States immunity. But the question here is whether  the  Federal  Constitution  requires each  State  to  grant its sister States immunity, or whether the Constitution  instead  permits a  State  to  grant  or  deny  its  sister States immunity as it choose.

Breyer, as has been the rule when the liberals (especially Stevens, Souter and Breyer) wrote in these federalism cases (repeatedly in dissent), makes a strong case even on the majority's own ground.  Stevens in the case forty years ago had history on his side regarding not declaring it unconstitutional for a state to allow another state to be sued without its consent in their own courts.  That is, a state should be able to -- as a matter of control of their own courts (thus federalism works both ways here) -- be able to treat another state like another litigant here.

And, even if the matter is open to dispute, not enough to overturn forty years of precedent. This is not a matter of states not having some constitutional securities or there being no "spirit" of the Constitution here among its bare text on the matter.  OTOH, it would be nice if supporters if the result did not sneer at "penumbras and emanations" in other cases.  As Breyer notes, it is that as applied in this case, states should have discretion. Precedents are not sacrosanct.  But, no good grounds exist here.


I would add that such separation of powers and federalism questions should be given more room to be decided as political questions than if some sole individual's right is at issue. Political institutions have more power to defend themselves and the overall structure set forth provides a means to check and balance.  See, e..g, Footnote Four.  If the Constitution expressly requires something here, or it is strongly sound to think so (e.g., perhaps decisions regarding placement of state capitols, to take an old case), fine. Also, though the precedents to me rest on sand, long practice suggests we are stuck with a breadth of state immunity law.  This, however, was not required to be tossed in. Again, if anything, it can be said to hurt state sovereignty as much as aid.

Planned Parenthood v. Casey is cited by Breyer, which some basically cite as a red flag. Irin Carmon on Twitter said in effect that he is telling us to be more concerned about the U.S. Senate (reference to new justices having new views).  Casey also (via Souter) had a strong section on the importance of stare decisis, the explicit reason for the citation here, though the justices there did not think that blocked tweaking the rules some.  Again, the law does change here, in part by changing judicial personnel. McConnell et. al. surely knew/know that.  Oh how they do.

ETA: The SCOTUSBlog summary sort of tones down the drama some. It does note the Thomas lax approach to overturning a long held precedent seems like something Kavanaugh (who has spoken separately repeatedly so far to state his views) or Roberts might be concerned about.

There is a certain foregone conclusion to the ruling given recent federalism trends though people have also noted this specific somewhat atypical -- the commentary notes the very fact this is a "three-peat" is because so few cases tee up the issues -- practice can fit comfortably into the greater whole (as noted here as well).  The commentary does suggest the immediate stakes seem low though intelligent court watchers do seem to think there is a possible foreshadowing nature to the whole thing.

Finally, the commentary underlines that on federalism issues, the conservatives are not strict textualists. This has led to some sarcasm but at this point taking literally some of their rhetoric is silly.  In practice, their actions put forth a more complicated wider whole. It is true that at times it would be appreciated if they tone down the rhetoric and respect the wider whole of their opposite numbers equally well.

2020 and Beyond: The Breadth of the Problem

It is best to remember that what you want is not the same as what you need. So, my desire for a woman president should be considered in an honest way. I still think that the field suggests the best options are women. This is something of a closer question as you go down the list, to be clear (unfortunately, Kirsten Gillibrand has lost some luster here), but do think Warren and Harris remain the best options. 

People have argued that dissidents should be honest about Biden's appeal.  I'm willing to see some of that, but the problems have not disappeared.  Recent polling does suggest (I will reference what I saw without links here) that Bernie Sanders is in trouble though. He still has second place, but a sort of distant second (one poll had Biden at around 35% and Sanders at 18%), providing hope that Biden (including for the anti-left) and Warren (for the left, at least those not sexist) is getting his support. If it was just Biden and Sanders, I still would be appalled enough to feel like not voting, but admit Biden is somewhat better as a whole on some level. Prudentially at the very least. Policy-wise, Sanders might be better if not practicably. To me, he remains a gadfly figure.

A basic problem with Biden for me is that he is sort of the "status quo ante" candidate, when we need to address bigger game. At some point, this has to be done, and 2020 is good of a time then ever.  After all, we are facing Trump, not some generally bad candidate, who has some positives. As some have noted,* the problem is not just Trump. It is in effect Trumpism and to me Biden's focus on Trump here is in a way rather troublesome. the fact that Biden has some support here is duly noted. Temptation to avoid bigger problems is a common occurrence. But, the problems fester.  More so if the "solution" denies part of the problem.

And, I will repeat, Biden has issues that make him problematic as a whole. First, he is going to be an issue for some in the Democratic Party as a whole, which the opponents will surely use. The response partially is that we cannot let them! Charming but a primary process is there to find the best candidate. This includes actually finding something wrong with the options you do not choose.  If Biden has issues, including from some women (gaslighting them by denying there isn't any ... so helpful), they deserve to come out. This includes finding a "middle way" on let's say global warming. It is realistic to compromise, but at some point, compromising leads to weak positions.  This isn't 2008 here.

One sentiment is that Biden (or Sanders) will appeal to Trump voters to some extent or at least the Trump curious.  Some other candidates make such an appeal, including the two longshot female senators, who cite winning such voters in Minnesota and New York. I myself am somewhat intrigued as to the former as a sort of compromise candidate for that very reason though don't know how useful it would be in the long run. The old white dudes (yes, I say this with some scorn) are more blatant about it, at least in a dog whistle sort of way (McCain's family has expressed their admiration for Biden; a sort of Never Trump vote).  This has a sort of tail leading the dog quality.  At some point, we need to get past that.

An op-ed also addressed the problem of the Senate.  It basically warns us that the Democrats have little chance in winning in 2020. I do not want to concede that -- admittedly, this is from someone who didn't want to concede 2018, which basically went as best as one could hope given the bad hand dealt.  Still, there is still reason to credibly think the Democrats can eke out a victory at least in 2020.  It would be better if more attention -- as things go, it is getting late -- was given to key races.  There should be a clear understanding that, let's say all those Warren plans, Senate control is essential if we are to do more than simply get rid of Trump. 

One intriguing thought is a proposal to give Native Americans representation in the Senate. Looking it up, population-wise, they very well would deserve it comparably. The idea of senators for both Atlantic and Pacific territories (two each) is also interesting though the population numbers work better (even on a "but Wyoming" level) as to the former. I have expressed my discomfort to giving D.C. two senators both on a population level and given it is more city, than state, but realistically, that too is worth serious thought given the system in place.

I also think the Laurence Tribe "at large" senators option is intriguing. The House of Lords was originally a matter of lords with certain territorial possessions, generally speaking, I suppose. But, in time, lords was added for a variety of reasons, in part to water down the original lords' power without needing to completely do away with the institution. At large senators would require a constitutional amendment, probably, but it doesn't seem to run into the special barrier to denying equal representation.

Dealing with things involve a range of governmental and non-governmental matters of diverse breadth. See, e.g.,  my recent comments on the progressive Christian writer that died recently.  We saw this in the area of both guns and gays really -- change in the courts there was tied to change in society and local government.  But, big picture governmental issues also are important to face up too and the Senate is one. It might seem like an impossible task.  Did not other major changes over our history? Moving past the 27th Amendment joker, I don't think constitutional change suddenly ended around the time I was born.

The same applies to other matters -- impeachment of a president, two electoral over popular vote victories and (on the horror scale) destruction of the World Trade Centers all happened after 1990.  Who would have thought most of these things (though a major terrorist attack probably is most believable, especially after the first bombing ... still after 1990) would have occurred even a few years earlier?  Other than as thought experiments? 

Trump in power is horrible.  It is not possible. It is actuality.  Let's think big in another way as well.  The level of different, yeah yeah, but on some level a President Biden appalls me too.  We need to think bigger. This includes the first woman president!

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* The piece references a conclusion that Elizabeth Warren is the candidate who is seriously addressing the full breadth of the problem at hand.  The blog used to have at least two contributors, to the degree they had a leaning, lean toward Gillibrand. Now, the sentiment is more Warren, even from a guy who sneered at the actual differences given other concerns. 

Granting the force of the argument, I do lean toward Kamala Harris. She has recognized the problems at hand, including supporting starting impeachment proceedings, while providing something of a more moderate approach. This is my bow to pragmatics.  She also has personal appeal, both charm and toughness (see questioning of Barr). She stands strong with Warren here.

A poll that put Biden in the lead by a significant degree (though only in the mid-30s among the field) put both Warren and Harris (a bit behind) as strong second choices ahead of the two old white dudes.  May 2019 still seems rather early, but that is important in a large field.  Hopefully, they both can eat into the support of the top two and gather general support.

C.S. Lewis through the Shadowlands

After re-watching Shadowlands, I obtained the book covering the love story between C.S. Lewis and Joy Davidson, helpfully providing a biographical background of each. The film also had dramatic license regarding their time together (including editing out one of her sons!). Both are good in their own ways, though the book (already short) could have cut out a bit of author quotations. The religious beliefs is less convincing than the love story. To me, God and religion is a sort of poetic metaphor and I am not an author of symbolic fiction.

Rachel Held Evans (RIP)

I saw reference of her death at age 37 (two very young children) and it was followed by a slew of sadness and praise for this progressive evangelical voice (a thing). I was not familiar with her but checking her online writing and Youtube videos suggests why. With all the negativity out there regarding religious matters, much well earned, voices like her are fundamental. To underline it, people expressed how wonderful she was as a person and helper professionally.

ETA: She was a fan of Game of Thrones, which I do not watch. Checked out the Chilling Adventures of Sabrina (graphic novel) and liked some aspects. It's much darker (see what happens to Harvey alone!) than the cutesy t.v. show on years back. But, don't like the raised from the dead plot much. Sabrina also isn't enough in charge of the story for my liking.

"Allegations remain in forefront for Kavanaugh, 7 months after his confirmation"

SCOTUS is only scheduled to have a conference this week as it works on all those opinions but Kavanaugh popped up in this extended piece. Like the Mueller Report, the judicial oversight council threw the ball in Congress' court. Will they ignore their responsibilities, including oversight over the executive's failings (my thoughts as to constitutional duties in comments)? See too a reference to Ed Whelan, a conservative troll who got the last laugh.

And Also: John Oliver dealt with lethal injection last night; an article on potential problems with nitrogen gas. Veep continues to be disappointing.

Gilmore Girls: A Year in the Life

 And Also: The Peo­ple And The Books  discusses eighteen works of Jewish literature from two books in the Hebrew scriptures to the stories that inspired Fiddler on the Roof.  One attempt to apply reason to everything and another to mystify everything (sort of a Jewish Gnosticism) was a bit tedious, at least the discussion (with all the jargon), though I understand the charm of making what might be seen as an isolated God more approachable via a form of poetry.  As a whole, I found the book interesting and helpful to get a sense of stuff like the works of Philo and Josephus. 

I was a big fan of this show though less in later seasons when the characters started to outstay their welcome and not develop in interesting ways. The last season was "eh."  Lorelai and Rory always has a self-centered nature to them but the show didn't want to in effect punish them for it. So, Rory goes so far as cheating with Dean (her ex, who married) and the story had it like the wife's family were the bad ones for dissing Rory.  The story went just so far (including having Rory get reckless and have to do community service) but then stopped.  Lorelai also had a tiresome connection to her teenage boyfriend (and her rich boy bf), much less interesting than others like Max or Luke.  Rory's college boyfriend was boring. I didn't even see the full last season at the time.

But, early on, the leads were charming and Rory finding her way, her first love etc. was nice.  The original creator (not a fan of that last season and never getting to end things with four words that we never were told about) came back for this Netflix series about a decade later, four episodes matching the seasons of a year, each sort of a double episode. I saw it this week on DVD; no extras (shame) and liked it as a whole. Nice to see various old friends in cameos (Dean and Sookie in the final episode; others like Paris and Lane received more airtime; the old headmaster had a cameo but no Max).  The last episode had some tedious Wild (the book, not the movie!) content and an extended enchanted evening segments. But, as a whole, it didn't seem padded or anything.

The primary content gave each of the "girls" their own plot developments. Rory is having something of a crisis, both professionally and personally (she has a safe boring boyfriend and whenever she pops into London, she is with her college boyfriend Logan, who is engaged).  She has those last four word -- "mom, I am pregnant."  Alex Kingston plays a goofy Brit who early on wants her to work on a book. She later fills in as editor of the town paper (two old employees, who don't appear to do anything; does Rory write all the content?).  Per a suggestion by her old boyfriend Jess (a few scenes), she decides to write a roman-a-clef she entitles Gilmore Girls.  But, the episodes do not really provide much of a resolution to her troubles. We don't know who the father is.  Logan? Well, she very well could have slept with someone else too.

Lorelei and Emily Gilmore also have various plot developments, including dealing with the death (per real life events) of Richard Gilmore.  They both have issues to handle, moving on and clearing things up (thus the aborted "Wild" hike by Lorelei).  With Richard around, Emily lets herself go some, and you see some Lorelei in there (including a twisted naughty side).  And, Lorelei always had some more traditional sentiments (including always pining for her first boyfriend and she was comfortable dealing with her mother's world, even if she didn't like it).  Lorelei is living with Luke and one subplot has them thinking of getting a surrogate and turns out Paris is running such a business. Miss Patty popped up, but missed her.

Emily sells her home and the other two get married, so their plot lines end smoothly.  Emily overall gets more attention than the regular show often gave her, including dealing with a family of servants who speak some unclear language (we see subtitles at times).  Some of the supporting characters also have moments, including the mayor, Kirk (still with Lulu but instead of kids, they got a pig) and Michel (looking good in a bathing suit), who is now married and he/his husband are planned to have a child.

Near the beginning, it being "Winter," Lorelai said it smells like snow. It smelled to me like nostalgia. Again, minus a bit of material I'd edit out, mostly enjoyable.  This was released in November 2016, so maybe that was well timed.  It was said that Gore won the election in Stars Hollow. She didn't come up, which is a bit curious; maybe she was edited out, but Hillary Clinton probably did as well.