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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Monday, June 30, 2014

Justice Alito Has Both Opinions ...

Some were not in good spirits when it was announced (flagged by SCOTUSBlog live-blogging) that both of today's opinions were written by Justice Alito. First, with a good dissent by Justice Kagan, a 5-4 ruling screwed domestic workers protected by public unions -- if you take away the dues, those things tend to have problems.  As some did with the second ruling, one can say "could have been worse," since public unions (for now) across the board were differentiated from a narrower class.  But, as in the Hobby Lobby case, the general principle applied is broader in scope.

The narrow take on the Hobby Lobby case is that closely held corporations are protected by RFRA and here need at least to have the same exemption as given to non-profits. Plus, since employees will generally (certain church type employees for now might be out of luck) have an alternative means of getting the coverage, it really is not too bad at all.  And, signals are sent, especially by Kennedy's concurrence, that this alternative is an appropriate least restrictive means.  One can hope. But see:
It seems highly unlikely that the organizations seeking this accommodation to the accommodation will be satisfied to accept what the Court said literally on Monday, and giving up further legal challenges because of that.   Since that was not directly at issue, they would have a quite strong argument that, whatever the Court did say on the point, it actually remains unresolved.

The ruling -- other than the author -- is not really surprising. The "closely-held corporation" gambit was predicted though it should be noted that the opinion doesn't really seem to say only they get protection here. Such corporations might be the one who are at stake in this specific case, just like certain types of contraceptives (sic) are, but Supreme Court cases aren't for merely the specific particulars. They set forth broader rules.  As one of Andrew Sullivan's readers responded to his limited reach view:
I’m surprised that language in the majority opinion is read so credulously. The underlying reasoning in an opinion is more important than bald statements like “this opinion doesn’t mean that our reasoning can be taken to its logical conclusion.” Yes it does. That’s why we keep winning handily every time Lawrence v. Texas and its progeny (Windsor) comes up. Lawrence explicitly said “this case is not about gay marriage.” Scalia’s dissent howled that it in fact does – and he was right. Lawrence led directly to Windsor and every court that has considered the issue has cited Windsor (and its predecessor, Lawrence) for the proposition that marriage equality is a constitutional mandate. Pretending that Alito’s one throwaway sentence in this opinion somehow immunizes the reasoning from being applied to other areas looks to me like a refusal to grapple with the actual reasoning of the opinion.
"Closely-held corporations" alone cover a lot of people. The opinion suggests other types won't bring RFRA claims (both Alito and Kennedy have language that suggest it goes beyond that to "free exercise" principles generally*).  A limited wrong is still a wrong, but Ginsburg notes:
Perhaps so, but as Hobby Lobby’s case demonstrates, such claims are indeed pursued by large corporations, employing thousands of persons of different faiths, whose ownership is not diffuse. “Closely held” is not synonymous with “small.” Hobby Lobby is hardly the only enterprise of sizable scale that is family owned or closely held. For example, the family-owned candy giant Mars, Inc., takes in $33 billion in revenues and has some 72,000 employees, and closely held Cargill, Inc., takes in more than $136 billion in reve-nues and employs some 140,000 persons.
One person wondered why Ginsburg opened her dissent in such broad term, including given it arguably gives the majority more breadth than its specific terms.  I find this a tad naive, especially given past actions (see, e.g., Shelby/NAMUNDO)  suggesting the Roberts' long game approach.  And, Ginsburg well describes the problems with trying to claim. This is what drove me the most crazy, I think, with some of the commentary while the case was ongoing.  As she says late in her opinion, the realistic result will be “perceived as favoring one religion over another,” faux lines drawn depending on the specific claims.  Too often the support for HL was mixed with disdain over the specific subject matter

The majority, down to the  least restrictive alternative (rejected by some as too burdensome, Ginsburg also notes it is more burdensome both to the government and to individual women "requiring them to take steps to learn about, and to sign up for, a new [government funded and administered] health benefit”), hedges.  A lot of "may" type language. Kennedy, doing an O'Connor, was led to write a concurrence to insist it only did so much. But, you take what you get, not what you want it to be. We have this bit, which for those "in the know" should lead to a double take:
At the outset it should be said that the Court’s opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent.
As noted, I'm not so sure, but the tell to me is that Kennedy actually alluded to the dissent. He doesn't do that sort of thing.  The majority took for the sake of argument what Kennedy here thankfully explicitly says: the "mandate serves the Government’s compelling interest in providing insurance coverage that is necessary to protect the health of female employees, coverage that is significantly more costly than for a male employee."  Likewise, he notes the "existing, recognized, workable" means set up by the government for certain religious non-profits, suggesting something still being litigated -- merely having to ask or some distant connection all the same with the insurance companies who must offer contraceptive coverage is not a "substantial burden" or one not overridden by a compelling state interest applied with a least restrictive means.

So, with at least during the current Administration, there seems (who knows for sure) to be five votes to find a way to cover the employees of Hobby Lobby and so forth.  With added administrative difficulty and some burden on employees.  Though the matter is still in litigation and the USSC did not clearly so hold. What about the next claim on some issue?  I think, per U.S. v. Lee et. al. (the dissent makes clear that "restoring" the law to pre-Smith days is what RFRA can soundly be deemed to do), Ginsburg has it right here:
“When followers of a particular sect enter into commercial activity as a matter of choice,” the Court observed, “the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on statutory schemes which are binding on others in that activity.” The statutory scheme of employer-based comprehensive health coverage involved in these cases is surely binding on others engaged in the same trade or business as the corporate challengers here, Hobby Lobby and Conestoga. Further, the Court recognized in Lee that allowing a religion-based exemption to a commercial employer would “operat[e] to impose the employer’s religious faith on the employees.” No doubt the Greens and Hahns and all who share their beliefs may decline to acquire for themselves the contraceptives in question. But that choice may not be imposed on employees who hold other beliefs. Working for Hobby Lobby or Conestoga, in other words, should not deprive employees of the preventive care available to workers at the shop next door, 30 at least in the absence of directions from the Legislature or Administration to do so.
There very well might be a way to make, as applied to this issue, this opinion one that sane people can live with.  It should be pushed to be applied in the most reasonable way as would be the case with other troublesome rulings. All the same, it is a camel's nose under the tent sort of thing. We should be very wary. 


* Alito's opinion specifically uses free exercise cases to show that corporations, including for profits, are protected to protect religious liberty generally.  Kennedy noted:
In our constitutional tradition, freedom means that all persons have the right to believe or strive to believe in a divine creator and a divine law. For those who choose this course, free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts. Free exercise in this sense implicates more than just freedom of belief. See Cantwell v. Connecticut, 310 U. S. 296, 303 (1940) . It means, too, the right to express those beliefs and to establish one’s religious(or nonreligious) self-definition in the political, civic, and economic life of our larger community.
Breyer and Kagan joined Ginsburg in full except to not take a position on "whether either for-profit corporations or their owners may bring claims under RFRA," and I could live with some argument they could. Alito is correct the legal fiction of corporate personhood protects the interests of human persons. The question would be line-drawing.

Still, Kennedy's phrasing makes me wonder his current take on Smith, which did focus on freedom of belief. 

Woman and the Law Stories

On the whole, a good addition to the "law stories" collection, but lacks a case related to criminal justice or even one chapter from the various historical cases (Bradwell etc.). And, darn is Reed v. Reed (sex alone an "arbitrary" grounds ... that's basically it -- centuries of thinking it is not might warrant a tad bit more) thin.  And, Windsor is criticized ....

Saturday, June 28, 2014

"New Vatican Document Seeks Greater Pastoral Openness to Same Sex Families"

The Vatican on Thursday issued the working document for the synod discussions, which in itself marked a sharp change from past practice: The Vatican sent out a 39-point questionnaire seeking input from ordinary Catholics around the world about their understanding of, and adherence to, the church's teaching on sexuality, homosexuality, contraception, marriage and divorce.
Many thought the 1960s would bring change regarding contraceptives, but remarkably remains a major debate (at least some places -- see Hobby Lobby). But, even the Church can push against the tide for so long. This pope provides a modicum of hope.

McCullen v. Coakley

I am not fully persuaded by the majority's contention that the Massachusetts law is unconstitutional. Some of the arguments in the opinion, such as the assumption that the anti-abortion activists challenging the law as "counselors" rather than "protesters," are problematic, and Massachusetts had tried a narrower approach that had not been successful before, suggesting that it deserved more leeway to legislate in this area. Nonetheless, the balance the opinion strikes between the state's interest in protecting access to reproductive health clinics and First Amendment rights is not unreasonable, and should not unduly restrict states going forward. Particularly important is that the fact that the majority did not overrule Hill v. Colorado, and indeed strongly suggests that most of the common means states use to protect clinic access are constitutional. States still have the tools to protect women's access to reproductive care, and it's important that they continue to exercise
A strong supporter of abortion rights wrote the above (see also, Dilan Esper in comments there, similar caliber views on this issue, sees somewhat case as hard) though his strongest view might be "could have been worse." Laurence Tribe also wrote an op-ed mostly in support of the ruling, also a strong supporter of abortion rights. Others are strongly opposed to the ruling, including one who does a weekly "RH Reality Check" podcast (will aid and abet unlawful action) and Judge Posner (the dissent in the invocation case also isn't taken seriously, plus Wiccans are called "witches").

The SCOTUSBlog page provides various material, including the lower court opinion,  briefs and links to opinion commentary.  A prelude of sorts to this case is the aforementioned Hill v. Colorado, which is possibly distinguishable, providing an opening suggestion why the "liberals" on the Court, including Justice Ginsburg who during oral argument was sympathetic to the law, staid silent.  An earlier Massachusetts law was more tied to that case (six foot buffer zone) but was later (as briefly noted by the opinion, more so in briefs for that side) deemed inadequate.

The law in Hill provided for a more limited buffer zone and was for "health care facilities" generally.  But, the latter tidbit is of questionable relevance. Roberts opinion (again helping to explain possible strategic voting) is clear that the problem here is not that it is a content based law (Tribe finds this silly, but as with polling places etc., sometimes they are acceptable -- he differentiates here on other grounds).  Alito didn't join with the other dissenters (recall he was the lone dissenter in both the funeral protest and animal cruelty cases)  but flagged the exceptions for clinic personnel and the like as an issue here. The opinion noted that might be an issue as applied, but:
To be clear, the Act would not be content neutral if it were concerned with undesirable effects that arise from "the direct impact of speech on its audience" or "[l]isteners' reactions to speech." Ibid. If, for example, the speech outside Massachusetts abortion clinics caused offense or made listeners uncomfortable, such offense or discomfort would not give the Commonwealth a content-neutral justification to restrict the speech. All of the problems identified by the Commonwealth here, however, arise irrespective of any listener's reactions. Whether or not a single person reacts to abortion protestors' chants or petitioners' counseling, large crowds outside abortion clinics can still compromise public safety, impede access, and obstruct sidewalks.
The law here therefore was not problematic merely because it was specifically targeted to abortion clinics.  Roberts provides various possible options (while being clear to note it was up to a case by case determination if specific ones passed constitutional muster) to address the type of criminal actions flagged by supporters. It was noted in a previous comment the opinion did not respect the problems outside of clinics, or at least, just what is needed here.  The opinion does not ignore such things, but clearly more written from the p.o.v. of the challengers.  This is not that surprising since court opinions often are not a balanced approach that is sure to be totally fair to each side, given each equal time.  Likewise, in a tidbit I have yet to see  reference to in connection to this case, recall he was the advocate against a special federal means of relief in Bray v. Alexandria

I do think it would have been better if someone like Ginsburg wrote a concurring opinion (shades of Sotomayor in a recent ruling on tribal immunity) that made sure to provide a perspective from the p.o.v.  Some of the anger is clearly coming from those who see the Roberts Courts as ignoring the needs of abortion rights, deigning to take cases only when it helps the other side (Gonzalez v. Carhart and this case ... and one might add Hobby Lobby, if use of the word "abortion" there is basically asinine).  It might be too much all the same, but as a piece of a wider whole, this case might be able to be taken as an acceptable evil. After all, it has implications in other types of protests, protestors who a scorned by many too, but more simpatico to certain ideological p.o.v.s.  And, previous actions (see Shelby) suggest limited rulings might have a Trojan Horse vibe.

One thing the ruling here doesn't particularly share with Hill is a support of some right to privacy in public places from being approached by "sidewalk counselors" (differentiated from protestors who wave signs and the like), including in the limited area around clinics.  I'm wary of such a "right" myself though respect the argument that in certain places (including -- to quote -- law that "seeks to protect those who wish to enter health care facilities, many of whom may be under special physical or emotional stress, from close physical approaches by demonstrators") some weighing should take place. Even Stevens' opinion included a quote involving "unwarranted" advice and what happens after communication is "declined." This law assumes bad faith each and every time and doesn't wait for the decline. Contra Posner, also, there is sensible room in public places for personal interaction on issues, including of an emotional caliber. This includes those that result in offensive speech up to some point.*

I am wary though because a range of public places can be found appropriate here, including gay rights protestors outside of churches. Is only consensual (defined as only when asked) speech allowed there too? That is also but an example. And, given the remaining protest actions in place, I don't know how much good it does on balance. A video I linked, e.g., brought up murders motivating such laws.  I don't think that sort of thing, as compared to emotional trauma and harassment, will be prevented here.  Nor will it stop hateful protests and the like. Even free access, especially given alternative means (particularly with surveillance and security), will be aided only so much.  And, the balance is free speech in various locales. 

The opinion was labeled as "fair," which received push-back. The word might have been inapt.  Like Scott Lemieux and perhaps some of those who joined the opinion, perhaps "acceptable" might have been a better word. One that still would be rejected by many, though perhaps with a tad less spleen.  Also, as noted by SL and others (he links to Dahlia Lithwick), the Supreme Court has a buffer zone. If that zone is too big, fine enough, two wrongs don't make a right.  Nonetheless, I do think governmental buildings might not be the same thing -- at least, I would suggest more safety protections for individual justices is not unfair.

The opinion noted this law is fairly unique, which does not in itself make it illegitimate, but might be a red flag -- it shows there might be alternatives and other states with similar concerns found other ways to address them.  It could be though that Massachusetts, as a liberal state, was the only one who cared enough and had the wherewithal enough to see just what is necessary here.  Even supporters realize the buffer zone only does so much, especially since they scorn what girls and women still have to deal with (shades of Clint Eastwood's film The Gauntlet) to get medical care.

If I'm wrong about the result here, suffice to say, I probably am not about the bigger need to do all we practicably and legally can to protect everyone to with as much ease as possible to obtain what should be seen as an obvious fundamental human right.  Monday will bring one more case in that respect ...  on the whole, signs are evident and very ominous, and a chill wind blows.


* This is a subject that has various sides and complexities as suggested by some of the links provided, which is just a small sample.  One link -- from a writer I take as liberal leaning from past content -- provides two books  that would provide additional context (see also, e.g., Generation Roe, which does not specifically deal with this issue that much).  The link to the "license to harass" book, e.g., provides this summary:
Nielsen relates the results of her interviews to statistical surveys that measure the impact of offensive speech on the public. Rather than arguing whether law is the appropriate remedy for offensive speech, she allows that the benefits to democracy, to community, and to society of allowing such speech may very well outweigh the burdens imposed. Nonetheless, these burdens, and the stories of the people who bear them, should not remain invisible and outside the debate.
The lack of a concurring opinion provides a one-sided view. Of course, this is also just a general sentiment. The rules here won't be absolute. Nonetheless, there is an importance to specific locale and technique here (person-to-person) too. See, e.g., here.

Friday, June 27, 2014

SCOTUSblog on camera: Decision Day (Buffer Zones)

SCOTUSBlog usefully has video from people on both sides reacting to McCullen v. Coakley. I respect [fwiw] the negative response to my comment there. One thing that comes up is the buffer zone in front of the USSC. I don't think it is quite the same myself, but do think the right approach there is consistency in less restraint. Others, e.g., have suggested the cell phone case is an "us too" sort of deal. If so, it's still correct, if selective. More.

Young & Hungry

Another "Disney star moves to ABC Family to have sex" (the name of the channel btw was a contractual obligation apparently) sighting, here the sidekick to Hanna Montana (no twerking yet). Here's a fair review of this comfort food material. I think my use of "fair" there will not get quite a reaction as before. No disrespect intended by my "wit" here.

Thursday, June 26, 2014

A bit more ...

I find it a bit tedious SCOTUS is extending things to Monday aka "not in some form unanimous" day. Roberts quoted a Kagan law article. As to the dueling histories in the recess case, somewhat tedious if (somewhat) interesting reading. History only takes us so far and must be examined completely. Overall, a combination of things are needed.

SCOTUS: Recess Appointments

Breyer wrote a narrow opinion against the Administration that got Kennedy's vote; Scalia wrote for the other conservatives wanting more. I can live with it; still think pro forma sessions a joke, needing a quorum in the NLRB provided a special situation as did political realities here. But, they also led (for now) a response regarding executive appointments. Plus, scheduling rules gives the House power to block Senate adjournment and thus apparently power over appointments. A bit strange. And, the opinion is sane.

SCOTUS: Abortion Protest Case

Expected result except perhaps for no opinion, such as from Ginsburg, from the liberal wing. She appeared to accept the limits of Roberts opinion which focused not on it being content based (Alito separately suggested it might be), but not narrowly tailored enough. I think it is a fair opinion though a voice from the other side might have helped. HL for Monday.

Update: See comment. I will leave it there. Maybe, "mostly fair."

Wednesday, June 25, 2014

"Mediation: A Different Kind of Conversation"

An interesting discussion, providing further detail to an interesting essay.

Generation Roe

It is quick reading and covers standard ground from an activist's perspective c. 2013. Some good stuff included: perspective of medical students, abortion portrayal on t.v. and the conservative nature of big abortion rights groups. References but does not discuss, to its detriment, the abortion battle during the ACA legislation process.

Court Watch

SCOTUSBlog is a place to go for opinions handed down, including the the Aereo case (6-3 against the creative attempt to find a loophole), a basically unanimous (Alito concurred separately in part to suggest legislative guidelines might change things) major protection of cell phone privacy (with potential further reach) and a third case few care about. Meanwhile, 10CA becomes appellate court first to protect SSM, 2-1 (dissent is pretty weak).

Tuesday, June 24, 2014

"Tough test in gay rights cases finalized"

I'm somewhat sympathetic with the dissent in the denial of en banc -- heightened scrutiny for sexual orientation is sensible but Windsor didn't quite go as far as the majority said. It being a significant advancement, en banc would have made sense. I covered it here.

Monday, June 23, 2014

The Millers Snapshot

One good scene is when three of the "family" looks at the shy fourth talking to a girl, who clearly is sending signals (which he either doesn't catch or is too shy to respond to) that she wants him to kiss her. It is one of those "ring true" scenes nicely done that impresses. And, deals with relationship dynamics in a fashion with impressive nuance.

Two Things

Very funny.  Also, per a Colbert Report interview, "The Confidence Gap."

SCOTUSBlog Loses First Round in Press Credentials Appeals

Troubling result as noted. The blog also discusses the rulings today, including an apparently acceptable(if too restrictive) EPA ruling. Multiple controversial cases remain.



The petition for a writ of certiorari is denied. Marc Bookman, of Philadelphia, Pennsylvania is hereby directed to file within 40 days a response to the June 2, 2014, letter filed by Michael Ballard in this matter
Curious order -- turns out the letter supposedly requests the appeals of the murderer (another unsympathetic character) end and his ("his"?) attorney is ignoring it.

Saturday, June 21, 2014

Sotomayor's Life Story v. Roberts' Umpires

Good discussion on how judicial background does matter though officially there is a discomfort with looking at the matter with some depth.  In real life, judges have a special role and a judicial way of doing things, but they are not robots.

Written in Stone

I think he confused the possible natural right to revolution with the constitutional right of secession, but Sandy Levinson (Balkinization) is more convincing regarding the prudential and realistic limitations of judicial review. The main theme regarding public monuments, including how to deal with even offensive ones, was an interesting read.

Friday, June 20, 2014

"Why the Supreme Court Should Stop Fetishizing Dictionaries and Start Caring About Words"

doing textual analysis with only dictionaries is like doing law and economics with only a pocket calculator
More evidence that reductionists are often wrong, even if we assume for sake of argument their alleged reasoning process. The Canning case seems like a lost cause, but the discussion underlines that it still is aggravating since it is at least a close question, one that should be in this case entrusted to the political branches as applied.

The Girl At Snowy River

Prudence moved to Australia from England at impulse and she is hired by the head office and send to Smoke’s remote work site. He tries to get rid of her but the head office insists she stay.
I found this old Harlequin romance on the free shelf at the library -- the author is native of Australia and it reads pretty good for something fifty years old (though it was a thirty year old edition).  Sometimes, like this time, find these things charming.

Wednesday, June 18, 2014

Six Amendments: How and Why We Should Change The Constitution

I discussed this book elsewhere, including repeatedly in this response to an argument that it would be more useful if he argued that his positions should guide those who appoint judges to the courts (a major way the law changes as seen by O'Connor being replaced by Alito affecting multiple cases). Basically, I agree with the sentiment, especially as a realistic matter. That thread was dominated by the 2A discussion, which is useful as a case study, perhaps, though my sparring partner basically talked pass me.

The proposed amendments are listed here and one thing that immediately stands out is that Stevens wants to insert language in existing text.  Madison proposed this in regard to what became the Bill of Rights, but it wasn't seen as the best way to do things. Given that, it seems a bit curious that Stevens blithely does so here.  It is an example of his at time too brief discussion of the material (six amendments, 130 pages plus the Constitution, small pages at that) though the general reader will get some useful material along the way.  Still, needed to show a bit more work.

I'm sympathetic to his concerns here -- e.g., political gerrymandering is a problem, including advancing more ideologically extremist legislators that negatively affects national policy overall.  I think that issue perhaps is actually the most likely to get traction on some level (though again, it might be better handled alternatively, such as state level independent commissions in the states with large delegations). Still, even there, don't know about the language ("compact and composed of contiguous territory" need not be the only way to divide states), and someone like Rick Hasen (generally a liberal leaning person on electoral issues) sees red flags.

The same general concerns are raised with his "reasonable" limits language for campaign finance. The chapters on immunity and commandeering are perhaps the most important, since they cover important issues that get less coverage than things like campaign finance, the death penalty (I oppose partial lists in the 8A) and gun control (even he notes his language only addresses one constitutional argument & even if I didn't support an individual right to firearms, would find that a glaring flaw in a proposal intended to give the government broad power over gun regulation).  I share his sentiments but not seeing amendments passed here either.*

I found his Five Chiefs book a bit thin since it covered well trod ground for me without much depth (it was longer but still fairly short) though the average reader might have gotten more out of it.  Plus, it was decent enough light reading, more or less, with some interesting asides. Same here though a bit more concerned about lack of a bit more depth given six major issues were covered. For instance, what about a murder committed when someone is inside for life (a standard "hard case" cited)?

It's a worthwhile book but a bit too thin.


* Also, as to the immunity amendment, "immunity from liability" might lead to confusion -- my sparring partner thinks the language would allow congressional legislation to force state actors to do things even if otherwise blocked by constitutional provisions like the 8A.  Not Stevens' aim, but the text arguably might be interpreted that way, I guess.

It is also strange that the book doesn't provide all six amendments conveniently in an appendix.  I blame the editors here more than the ninety something justice who productively uses his retirement  though one of the bloggers linked above suggested "retired" might not be an accurate word here because apparently technically he is still eligible.  This is not how people have used the word "retired" here and it seems overly technical and overblown as applied.

Washington Redskins Trademark Cancelled

I'm not sure the limits of the ruling if even a minority of a group feeling something is disparaging and offensive is enough, but on the law, seems sensible (see also: no, kike beer/trademarked). More so if the owners just take the hint.

Tuesday, June 17, 2014

"Lee Lives"

As in Lee v. Weisman, not THE Robert E. (see name of the principal in that case though). The discussion of the denial cited yesterday is interesting in part given the flashback/link to Greenhouse. Disclosure: young me at the time thought that case would go the other way.

"Lethal Injection Secrecy and Eighth Amendment Due Process"

Good article. Case seems pretty clear-cut to me.

Monday Night TV

New episodes for ABC Family shows, including a new one (about a young woman who gets cancer) ... not really gung ho about the plots though curious about Bailee Madison on The Fosters, which went downhill after a great first ten. The Mistress (ABC/10) also is something to check in on. Or, when they play, can watch Mets struggle. Curious about Young & Hungry.

Monday, June 16, 2014

RIP Tony Gywnn

He was to me someone who was the face of the team (Padres), a great hitter and guy.

SCOTUS Orders: Elmbrook school graduation case

District's practice of holding high school graduations and related ceremonies at a non-denominational, evangelical Christian church was violative of the Establishment Clause of the Constitution of the [U.S.].
The USSC let the ruling stand with Scalia/Thomas dissenting. The dissent tries to expand Town of Greece to the school context, belittles opposition as mere "offense" and again diminishes religious liberty by putting a high bar on wrongful governmental conduct. Also, cites old or REAL old cases selectively. Wonder how Hobby Lobby votes will go!

Sunday, June 15, 2014


Saturday, June 14, 2014

"Obama Makes First Visit To Native American Country"

This is a bit surprising and too bad. Along with Puerto Rico and other territorial areas, these are often the forgotten people. A couple important Supreme Court cases on Native American issues also led me to wonder about recent cases involving territories/commonwealths etc. Other than the Insular Cases and Dred Scott, what are the top ones historically?

"Battle Over Dress Codes"

The subject of school uniforms (including as an example of how sitcoms can have something to say) was addressed by me in the past and is a subject of a recent op-ed. I understand they have some value but still dubious about them. OTOH, think it a bit crazy to think pubescent guys will not do some staring at some of the more revealing outfits. I know it's hard not to around here in the summer -- nice about of skin out there. And other things.

Friday, June 13, 2014

Charmed Season 3

The season was pretty good, though the Phoebe/Cole stuff got to be too much for me. As usual, partially since I only had a week, skipped a few episodes that sounded off. Did not like how the Cole subplot ended & avoided (like Andy) the death episode of a key character. Think they replace Prue too soon in S4 and other subplots don't sound very good. Might end here.

CA Education Ruling

These days, certain sides are more wrong, but there is wrong to go around. For instance, the suggestion people as a whole are going against Obama because he is black. Like Bill Clinton, right? Knee-jerk on a single judge's probably bad ruling on education too. To be fair, one of the two at LGM did later show his work. That's why you are generally worth reading.

Thursday, June 12, 2014

Bye Eric

The fact the majority leader of the House of Representatives was beaten by an obscure Tea Party type in a surprising upset (TPM, e.g., doesn't seem to have flagged it being a big possibility) is somewhat reassuring and can hurt their presidential chances. But, might not be great for immediate governance as party will just go more conservative.

Monday, June 09, 2014

Sunday, June 08, 2014

Link In

Getting a few hits from my comments here, a post concerning the rape culture. I in effect note the link confused me as to details -- didn't quite understand what happened. Find this is true a bit too often, some basic question not answered. Also noted trivializing rape includes prison rape, something often part of immature humor or comments

Charmed: S3

I'm watching this final Prue season (maybe my last; the actress directs her own death) and the first few episodes are good. Not really interested in the Cole/Phoebe stuff though, something that is a major multi-season subplot. Continues to be incomplete regarding lives -- do they have friends? What about religion, including regarding modern day Wiccans? Phoebe questioning Piper's decision to marry is challenging stuff, but kind of wimps out.

Paul Finkelman on 2A

As noted in this thread that has led back again to the 2A, a historian known particularly for his slavery writings has also written on the origins of the amendment. Useful reading, but just goes to show the limits of originalism. The text is there and it has taken a life of its own. The failure of Heller to discuss the federal power over territories etc. still is a bit disconcerting. I'd rest the individual right largely elsewhere myself. FWIW.

Rev. Joe: Jainism

Reading about various religions, hit upon Jainism, which has a few particularly appealing principles. Two would be a complete "ahisma" non-violence principle that also influences veganism and the importance of pluralism/multiplicity of viewpoints (see, e.g., the old blind men touching elephant parable). I'm also sympathetic to some overall karma principle without some of its baggage. The focus on such principles as compared to a specific God also seems sensible. Has reputation of being a bit extreme. Many favor Buddhism.

Saturday, June 07, 2014

Edwina Rogers Fired From Secular Coalition

The Secular Coalition for America is a 501(c)(4) advocacy organization whose purpose is to amplify the diverse and growing voice of the nontheistic community in the United States. We are located in Washington, D.C. for ready access to government, activist partners and the media. Our staff lobbies U.S. Congress on issues of special concern to our constituency.
Our member organizations are established 501(c)(3) nonprofits who serve atheists, agnostics, humanists, freethinkers and other nontheistic Americans.
Caught a somewhat distressing article regarding the group letting go their executive director, a former lobbyist with Republican connections, which not surprisingly made her a somewhat controversial choice.  But, Edwina Rogers seems like a great choice in various ways.

She has an uplifting biography in various ways and a c.v. and talent to lead a lobbyist group. Finally, the secularist (even Karl Rove outed himself as a non-believer*) wing of the Republican Party shows there is crossover appeal.  Democrats know that you don't support everything the party does, including some of its appeals.  Many in this group probably don't like some of Obama's moves in respect to religion. I'm only sympathetic with the group, not part of it, but look what I wrote on that front back in 2006 (tempus fugit).  As one person noted:
“Edwina helped us grow,” said Herb Silverman, the founder of the Secular Coalition and now a member of the advisory board. “The fact is that we’ve become more influential, and have gotten more money.

“When we first started,” he said, “there wouldn’t have been any embezzlers.”
(He introduces this talk that she gave for the organization and have referenced his book and recently linked to his op-ed on the Galloway case.) The reference is to around eighty-thousand being embezzled, though the article suggests disputes over strategy and such was probably the reason for the move. She doesn't seem to be at fault in respect to this issue. There is a stereotype here about the nature of this movement, a bunch of liberal anti-religion types that (as one comment elsewhere noted as something of a joke) might be best represented by a Barney Frank-type.  Not someone who appeared on the Real Housewives show or something.  The Southern accent is a nice touch.

She seems to have done some good and don't know the specifics (the article notes they are being close-lipped; the statement on the website is a  dry nothing sort of thing).  So, maybe it was the best move all things considered, though she comes off as surprised about the whole thing and the timing before a big event looks curious.  Who knows.  When I first read about her appointment in the past, took it as a good choice. Hopefully, they find a good replacement, one similarly not just the stereotypical one. 


* It comes off as a throw-away usage, but still do not really like it -- people "believe" in a range of things. What is meant here generally is belief in God.  But, would think the whole point here is "freethinking" that would not single out "belief" to mean that.

The term "freethinking" (see also, Freethinkers, a book by Susan Jacoby from 2004, a history of the movement in the U.S.)  is pretty broad. The coalition goes beyond separation of church and state and the like -- the sort of thing Baptists pushed on James Madison -- to the "non-theistic" movement in general.  The Galloway case is an example there -- the dissent supported the former, but there was some pushback that it has nearly no reference to the latter. The two things do overlap, of course. 

Friday, June 06, 2014

... now Wisconsin

Not sure if by now predictable constitutional recognition that same sex marriage is part of marriage rights requires eighty-eight pages, but like others, this opinion has its highlights. Might be the first to cite Turner v. Safley to show the breadth of "marriage." The sex discrimination section is well covered. The "justice is not to be taken by storm. She is to be wooed by slow advances" is a nice touch. 10CA might be coming soon.

Thursday, June 05, 2014

Grace Unplugged

This is a "Christian" film, meaning the main character is from a certain breed of Christian family. It's okay -- shut it off about 1/2 way -- but what amused me was that Kevin Pollak of all people is in it (he worked for the character) and Shawnee Smith (of various things, including Saw) played her mom. Again, she worked, but funny to see her here.

"Is Edward Snowden Engaged in Civil Disobedience?"

Sometimes, perhaps I should worry, find some on the left over the top & this includes some of the support of Edward Snowden. I think this has it mostly right and "the value of some of [his and others] revelations does not mean that they deserve the prestige and influence that has been accorded to them." Details at links. The fear of unjust legislation hindering his defense doesn't quite do it, sorry. Did MLK have it easier or something?

RIP Don Zimmer

Wednesday, June 04, 2014


Caught one episode on demand and the second season opener. Pretty good. Someone is preggers. Another Charmed actress was involved in a past failed version.

"Court won’t block Oregon same-sex marriages"

Unlike in Utah, SCOTUS didn't grant a stay -- the state here did not ask for a stay. Same applies to PA. As noted, Hollingsworth v. Perry rejected non-state officials appeals.

"Stepping back from the precipice in Bond"

The Scalia opinion is, to say the least, unpersuasive.
Just Security provides a good analysis of the Bond ruling here. Note the footnote. I repeatedly dealt with the other side when Rosenkranz et. al. badly discussed it at Volokh Conspiracy.

Daniel Murphy Goes To Washington

He gives color and flair to the Mets and his hitting (and decent defense, minus a few slip-ups) has made him a serious All Star Game candidate. His baserunning has been a tad questionable though he isn't alone -- coaching is partially at fault. Murph started the season on paternity leave and will be part of discussion on working fathers. Good for him!

Tuesday, June 03, 2014

"The Dragon St. George Could Not Slay"

Interesting look at a doomed (and convoluted) attempt to bring gradual emancipation to 1790s Virginia. Note, e.g., the limited rights of slaves. Contra to Taney and various current (ironic) supporters, that isn't a total oxymoron. More on St. George Tucker.

Justice Sotomayor

A public appearance is discussed here. Makes me think that -- like her recent concurrence in the tribal sovereignty case -- we need a good discussion on how the law affects Puerto Rico and other U.S. territories and such. Let's bury the Insular Cases.

"May 15, 2014 Why the Supreme Court’s Conservative and Liberal Judges Are All Greek to Me"

Included is a link to a "secularist" invocation. His book was a good read too.

Monday, June 02, 2014

Use of male pronoun for God

BTW, on her wedding day, EE makes a passing reference to her sister. I seriously thought she was an only child before then. As she says, she is only putting forth one perspective. Anyway, the title concerns this post of hers, which I think rather mistaken. But, that is how it will go with beliefs. Big picture, however, from the book, she seems like someone you can respect.

Girl at The End of the World

She uses makeup now and is a little "spicy" (to quote her hubby), which livens up this memoir of an escapee of abusive fundamentalism (now a Catholic). Good Q&A at the end. I think the personal story stuff is pretty complete, but wouldn't mind reading more about her views on things in general. Guess that is what her blog and media appearances are for!

Bond Again

I'm still not overly enthused with some of its word play and the use of deadly drugs here is no goldfish/vinegar situation. Still, this was a bad usage of prosecutorial discretion that honestly sorta begged to be an extreme example to toss out as a red flag about what the feds shouldn't do. And, Scalia should leave the federalism stuff to Thomas. Comes off as conclusionary conservative gut stuff. Alito's brief concurrence (he did join others) is actually reasonable though still wrong imho. Like the "liberals" here, I'm okay with the majority.

Bond: Hard Case Makes Okay Law

As noted in the past, felt Carol Bond should lose, but the "clear statement" rule handed down today that does not make the nuances of the treaty power as a whole a judicial matter generally was likely the best realistic option. Somewhat (it isn't that obvious) sympathetic to the Scalia three resisting this constitutional avoidance, but not the to me shoddy results (e.g., conclusionary structural arguments, selective citation to Missouri v. Holland etc.).

Sunday, June 01, 2014

Not Quite Romeo and Juliet, but ...

Daniel Lenerz, a friend of the couple who became a Universal Life minister for the occasion, officiated.
One was a Ginsburg clerk, one Roberts. If it took place in NY, might have been an issue, especially in certain counties where a lower court ruling still is officially precedent blocking it.

Girl At the End of the World

“Elizabeth shares with candor, wit, and near flawless writing about the religion she was so deeply hurt by. Her story is heartbreaking, yet redemptive, and we would all do well to pay attention to how religion without the love, grace, and truth of Jesus Christ is an empty and destructive force.”
Blurb from a book about abusive close-minded fundamentalism. Good book so far, not sure about implication Islam, e.g., is "empty and destructive" honors its spirit.


Indus River seems to be the etymology. Makes sense.