In The Heat Of The Night

Like the intro of my copy noted, the character has too much of a "magic Negro" (Sidney Poiter was perfect) feel especially compared to a bunch of local rednecks (most welcoming is someone from the North and an Italian). A scene with a local racist in the movie, which was more melodramatic and changes some details, is not in the book. Good overall.

Democratic Convention

Michele Obama's speech was the highlight of the first night, but there were many speeches and appearances like this too that impressed. Dems are imperfect (but email leak thing is so overblown and a lot of private material leaked are very concerning) but I am quite willing to stand up as one. And, sometimes, they make you proud. Other side is embarrassing.

Update: Bill Clinton had the second and Biden/Obama (Kaine was charming) the third. Clinton started slow, but had a pretty good speech. Speechifying probably not her main thing as compared to the others. Parents of killed soldier were the clear stand-out.

Invisible Agent

The actual agent is boring but his German contact and the enemy agents (including Peter Lorre, who plays a Japanese agent who is actually given a honorable end) are fun. Overall, this 1942 movie is decent -- some effort made.

Trump and American Moral Leadership

TRUMP: I think right now when it comes to civil liberties, our country has a lot of problems, and I think it’s very hard for us to get involved in other countries when we don’t know what we are doing and we can’t see straight in our own country. We have tremendous problems when you have policemen being shot in the streets, when you have riots, when you have Ferguson. When you have Baltimore. When you have all of the things that are happening in this country — we have other problems, and I think we have to focus on those problems. When the world looks at how bad the United States is, and then we go and talk about civil liberties, I don’t think we’re a very good messenger.

Someone cites this and is willing to "embrace the idea that American democracy has nothing to offer the world." 

When dealing with tools, it's hard to accept that they do at times say something right or represent overall sentiments that have some sort of bite. And, that applies especially for the likes of Trump.  But, some do think we shouldn't be the "policeman of the world," we should address our own problems and when we try otherwise, we screw up. There is some truth to this; it's a matter of scale.  And, there are various ways to do things, other than directly preaching to foreign leaders.  Plus, in the long run, supporting human rights and democracy benefits us too.

The U.S. still provides some guidance to the world (e.g., our belief in constitutional limits and judicial review, if not our presidential/electoral system in all respects) and has a role to play. And, the Corruption Perceptions Index suggests all things considered (our size and scope of power isn't quite akin to New Zealand or Denmark), the U.S. is doing pretty good.  Still, limits and humility is a lesson to be learned, even if promoted by Donald Trump.  Anyway, especially given the religious sentiments of some of them, think many of his supporters will not want to come down from the "city on the hill" too much.

Anyway, interesting historical footnote regarding Tim Kaine, in particular, his wife:

Holton's governorship arguably is best remembered for his response to a court-ordered school busing controversy during his first year in office. The Holtons voluntarily enrolled their school-age children in predominantly black Richmond public schools. A photo of the governor escorting his daughter Tayloe into John F. Kennedy High School on Aug. 31, 1970, made the front page of The New York Times.

"Tayloe" being his wife's (Anne Holton) sister. Accounts have Anne Holton retain her maiden name, including reporting on her current job as the Education Secretary of Virginia. Will her name be an issue like Hillary "Rodham" once was? Her past efforts to promote children's welfare might be one more thing that appealed to Hillary Clinton, given her own work in that area. Anne Holton has an impressive resume, including as a local judge.

The more I read about Tim Kaine, the more he seems like a fine vice president pick. His appeal in swing states, including his own (Virginia) and Florida (speaks Spanish, good campaigner, wide support) along with a comfort level with HRC are but two. His stance on the issues, even if not perfect lefty (shocker that), have repeatedly been honored by progressive publications and personnel. One thing cited in the coverage is his support of a new AUMF.  Sounds like an important matter of checks and balances to me. 

Clinton/Kaine

Waited to the end of the day to announce the expected. Some rather someone else but Warren/Booker (both Republican governors) should stay in the Senate, Perez has only support staff executive experience, etc. Kaine has a lot of executive experience, VA has a Democratic governor, he's personable, speaks Spanish and overall sounds like someone progressives should like. Clinton is "safe," but he's pretty darn good regardless.

Reap What You Sow

aka "both sides aren't the same." The plagiarism is embarrassing, but the partisan benediction at the Republican Convention started things on the wrong foot generally. Wallowing in hate and victimization sickening too. Mike Pence sounds like a real tool as well. Cruz didn't endorse Trump; encouraged people to "vote their conscience." Half a clap.

Supreme Court Watch

First set of summer orders are rehearing denied (left at looking at slightly funny names or wondering the story behind them -- easier if they were linked to opinions below like maybe on a better website they would be) and attorney discipline. Not on SCOTUSBlog calendar.

Update: Notable news of day in this area is Obama op-ed to WSJ [Diane Guerrero concurs on Twitter] and special request for rehearing in immigration case. More: Few months back, SCOTUS put a deadline on a voting rights case; lower court just made it.

Cult of the Cobra

Fun Svengoolie entry last night with a younger Sven and no segment where he discusses the cast, who here have various familiar faces including "The Chief" in a bit. Also, no Raiders of the Lost Ark reference! Film was a bit too long and darn if the "who cares" four (of 6) died.

Racial Unity?

Yeah. Good message. Comment more on a criticism of Hillary Clinton here but find the criticism tiresome. Yes, I'm a white guy answering a black woman. She's still tiresome. Note in connection to RBG, don't bluntly say that there, since it's best not to be 100% openly honest all the time without "illusions and myths" being the result. BTW, Pence is an enabling asshole.

Book/Film

Read The Reader and from what I recall, the movie (both were good) basically followed it faithfully. Kate Winslet is great at dramatic nudity. Another free shelf find.

SCOTUS Watch

Scheduling for the first set of next term's arguments has been made. Also, later than usual, summer order lists have been scheduled. I contacted the Public Information Office a few days ago to ask about the situation and just received a reply noting the press release is up. Don't think like it was because of me, but yeah, it wasn't there before -- look at past releases.

Update: Breyer alone dissented from a death penalty cert. denial, on length of confinement (over 30 years) grounds. Doesn't seem "worst of the worst" either. [He was executed.]

Kennedy: Selfie v. Self

"Many in the modern age confuse a selfie and your self.”

Kennedy elaborated, saying the self is “an idea, a projection, a promise that you have formed over your past and you identify yourself as having a certain role.”

More here. And, stuff on writing.

Enough RBG

Update:  Irin Carmon on Chris Hayes etc. has noted RBG is usually very restrained and doesn't directly target people like this (see, e.g., Scalia), so her doing this shows how bad she thinks Trump is.  

All the same, RBG has now said her remarks were "ill-advised" and that judges "should avoid commenting on a candidate for public office. In the future, I will be more circumspect."  Appreciated.

There have been various accounts, various people critical, about RBG's public remarks about Trump.  See, e.g., here.

The support of RBG as if she's just being honest is depressing. [As noted here, what she said is not particularly profound at all. Compare, e.g., certain other comments like saying abortion rights is a class issue.] The latest (no comments) post also imho misses the point. Sure justices have opinions. And, the business about Brandeis suggesting how to formulate legislation? Justices, often in dissent, talk about that sort of thing repeatedly -- maybe the law is this, but just to let you know, this might work. In the Pentagon Papers case, one or more justices explained how the press might be targeted.  They might also do this behind the scenes.

But, the difference here is RBG is on the record expressing the opinions in a way that in effect is politicking. That's not what judges are supposed to do. They have views. They want certain people to win at the ballot box. But, we don't want them to politick. It's not what judges are supposed to do and it suggests a problem with judges running for office. And, yes, doing that is a bit different than merely having views or sharing them behind the scenes with friends and such. It isn't all the same. Plus, maybe this is naive, I think it affects in some fashion how they do their jobs.  If "appearance of impropriety" isn't a thing, anyways, why have it?

The appearance of impropriety here isn't just fakery. She did cross a line. Some excuse her because hey it's Trump. But, the general "rules" there can apply open-ended.  Some think people like Obama or Clinton are so horrible that "it's different." It's variable. And, her comments don't help much there. If anything, it brings her down a bit. They make people just question her (and her "side") and neutrality overall is questioned. Now, when someone like Trump (or someone not as blatant) crosses the line, we will get a "you too" and "well she's biased, kinda has a point." I realize it isn't the end of the word. She isn't just a "partisan hack" now. Some for or against her will say that. But, it means something. It is depressing.

She is also making somewhat questionable remarks about other subjects as well, including her apparent desire to overturn Heller at the first opportunity.  At least, and as discussed there, there is some curious editing in articles going on, that seems to be the suggestion.  And, it isn't even clear that is useful -- the ruling leaves open enough regulation that should cover most of what is likely to pass anyhow.  I think RBG (Breyer seems to have been more temperate in his remarks as he promotes his books and such) has been too overexposed and needs to tone it down.

But, why should she give a f, really? Her husband dead, she is the "Notorious RBG" in her 80s and it looks like there is a decent shot at five moderate votes are the Supreme Court.  I am not upset she decided not to retire for strategic reasons and now think it was a safe bet.  (Knock on wood; I didn't think Bush would win, but this would be more of a shock.)  Her comments on Trump cross a line, one some liberals out there would find quite distasteful if Clarence Thomas did it.  Enough RBG.

Dope

Tired of the nothing new book on the first Congress, so shifted to this mystery by Sara Gran that took place in 1950 NYC I found on the free shelf at the library. An ex-addict petty thief is hired to find a girl and we are told it would go badly. Sure did. Killer ending. Good read.

Getting Bored

Have a ton of channels and more stuff on demand but usually don't want to watch what is on. Episodes of Anger Management, a bit of junk food t.v., are available on demand -- batches of around ten are put out over time. Have less patience with books too, including those that basically provide the same stuff with a few more details like on on the First Congress. Sigh.

Mets Update

They got some nice pieces (the 2B/SS combo is appreciated though Neil Walker's offense isn't enough of late; Reyes has baggage, but good replacement pick-ups too) but different year, same angina, including even some of the same suspects hurt. Offensive woes. Struggles vs. lowly Braves not appreciated. Nor losing six of seven vs. Nats with sweep of Cubs in between. Mets have a decent shot at WC but it's a crowded race. And, darn Murphy.

Third Amendment Case

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

By chance, searched for "Third Amendment," and this post popped up. Contra the suggestion of another blog's discussion, I argued the text should be applied liberally. And, at any rate, it could be incorporated.  At the very least, appealing to U.S. v. Miller, state guard troops could be a form of "solider" under its terms.  This still probably would not arise that much though there were cases in our history where the federal government violated its terms.  

The Third Amendment is now and then raised but know of but one case where it was taken seriously when deciding the merits. This aside from citing it in passing for principles of privacy (Griswold) or limitation of the military power (Youngstown).  Since then, however, there seemed to be case where it might matter.  The case is cited in one of the links in my discussed and there has been a district court ruling rejecting the claim.  

“I hold that a municipal police officer is not a soldier for purposes of the Third Amendment,” Gordon wrote. “This squares with the purpose of the Third Amendment because this was not a military intrusion into a private home, and thus the intrusion is more effectively protected by the Fourth Amendment.”

Engblom v. Carey involved National Guardsmen, not  municipal police officers, though think it's possible to stretch the terms that far.  But, this opinion doesn't have to -- there are other constitutional protections, such as the Fourth Amendment ("seizure" of the "houses") that can be used. Also, taking over one's home for part of a day isn't really "quartering" though again maybe you can stretch it that far.

The Third Amendment is basically a preventive device to show what cannot be done while alluding to principles of privacy and civilian control that can inform other issues. Scenarios, especially in wartime or times not "of peace," where it can come up is also conceivable. One can think of, e.g., an extended period of unrest where the government wants to take over a house for some reason. Or, do so during a war of some sort without proper authority.

But, it looks like we will continue to have the Third Amendment page in this collection being rather (a tad too) brief. 

Love Wins: The Lovers and Lawyers Who Fought the Landmark Case for Marriage Equality

More here. The co-author had a connection to the couple by marriage years earlier. Basic, well-written account highlighting the lead plaintiff and his lawyer. No index.

"Comey’s unusual public recommendation in the Clinton email investigation"

Clinton "scandals" always seem to rest on trivial legal grounds if at times with some reason for concern. Mr. W., who has legal training, talks about why the case was weak to two anti-HRC trolls here. The announcement, which made sure to note Clinton was as one person said "naughty," had issues itself. Those concerns were not fully address by this defense from legal Never Trump guy. Careful handling of data is important but her opposition is Trump. Okay?

Update: Those who try to parse things so it looks like she might be prosecutable can have a field day with Trump especially if credible claims are the test. The latest is a doozy.

Truvada and Prevention under PPACA

Someone online wondered why Truvada isn't protected as a preventive drug under PPACA (as contraceptives and various other things are). Found an interesting article from a year ago on the issue. The article suggests it "being new" factors in, no specific legal barrier as such appears to be present. HIV prevention is discussed in this article. Loads of questions like this will be up in the air during the next four years and POTUS will have a lot of discretion and power to affect the results. Somewhat related on that general topic.

"Machine Guns Are Not Protected By The Second Amendment, [5CA] Rules"

The Fifth Circuit led the way regarding the individual rights view of the Second Amendment so it was interesting to read a recent opinion holding that machine guns were not included. A 1986 expanding a national regulation to specifically ban machine guns* (including conversion of other weapons) made after that date. Pre-existing ownership is still legal as a matter of federal law. The Fifth Circuit was following recent lower court precedent in this respect, but went somewhat further than merely saying machine guns are not covered.  The reasoning particularly interested me.

We hold that possession of an unregistered pipe bomb, by its very nature, creates a substantial risk of violence. Unlike a handgun, it is not considered sport to hunt or engage in target practice with a pipe bomb. Moreover, it would be quite difficult to protect oneself or one's family with a pipe bomb. In fact, we cannot conceive of any non-violent or lawful uses for a pipe bomb.

This is from an earlier opinion cited here regarding the "dangerous" nature of a pipe bomb.**  It is relevant since an exception in D.C. v. Heller are "dangerous and unusual weapons," though the last opinion cited there was handed down in 1874. However, Scalia rejects the "startling" (possibility of a federal law somehow being unconstitutional doesn't seem too shocking in itself) idea that the current machine gun ban is unconstitutional. He does so in part to separate personal ownership from ownership that might have a valuable militia purpose.  But, just what this specific term means was left noticeably to the lower courts to determine.  Handguns were noted to be in common use and practical for personal home defense over other guns without comparing it as such to a "dangerous and unusual" arm.

OTOH, in Staples v. U.S., cited by the 5th Circuit, the Supreme Court (in 1994, with only two justices dissenting) required actual knowledge a gun is a banned machine gun. Justice Ginsburg concurred (only Stevens/Blackmun dissented) to emphasize  that Congress recognized "widespread lawful gun ownership” and a "very limited class of firearms, those they considered especially dangerous" that was "often difficult to distinguish from others non-regulated types."  This would have been a useful citation in Heller to help clarify rankings among categories, including the comment: "we might surely classify certain categories of guns -- no doubt including the machine guns, sawed off shotguns, and artillery pieces that Congress has subjected to regulation -- as items the ownership of which would have the same quasi suspect character we attributed to owning hand grenades."  

All guns are "dangerous" in some sense of the word. The term "dangerous and unusual" (interesting match to "cruel and unusual") has been interpreted to use that word to mean "especially dangerous."  The earlier case was not a Second Amendment case, but comparison of a pipe bomb and handgun is telling. The Second Amendment might not have expressly been given the Heller reading, but there was a widespread general understanding that individual ownership should be treated differently when certain types of arms were involved.  The opinion here also discusses "unusual," which it notes has been a matter of some debate. Regardless, like using various Establishment Clause tests, machine guns are "unusual" no matter what test used.  A key factor being widespread bans (cf. Alito's analysis as applied to stun guns).  This again reminds one of how "cruel and unusual" has been applied.

This is interesting and itself goes into more detail than the 3CA opinion, but overall seems rather straightforward. Plus, Heller itself assumes the government can ban machine guns. It also addresses the possible rejoinder that machines guns would seem to be helpful for a "well-regulated militia."  The opinion determined that this was advanced by an individual right to keep and bear arms, arms in common use at the time for personal self-defense.  This was actually the core concern according to Heller -- the personal right to have an arm to deal with confrontations, particularly in the home ("Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.")

What really made me say "hmm," though it does seem to logically follow, is page 11 of the appellate ruling:

Heller, therefore, distinguished between two classes of weapons: (1) those that are useful in the militia or military, and (2) those that are “possessed at home” and are in “common use at the time for lawful purposes like self-defense.” See id. at 621−27 (quotation marks omitted). The individual right protected by the Second Amendment applies only to the second category of weapons, though that category at times may overlap with the first. 

The italics are in the original.  A logical -- one made by the author talking about his book on the First Congress --  interpretation of the Second Amendment is one that focuses on the militia.  States would retain the power over their militia, which would be armed with various types of weapons (the First Militia Act actually required ownership of certain weapons and equipment; state militia laws did as well) and they would not necessarily always be "possessed at home."  Given the recent holiday, reference can be made to the spark that started the Revolutionary War -- reports militia stores would be seized by the British.  Home and personal defense was not quite the same thing here. 

The usual complaint is that modern arms are quite different from the typical musket of old, helping to show that the Second Amendment is obsolete.  The Supreme Court tries to deal with this by noting that yes we have much more serious weaponry now, but the type of arms the amendment is meant to cover is more limited.  This seems a bit of a quirk of technology -- if the advancements in technology that arose not too much later (cf. weaponry of the Civil War), would the overall logic of the amendment be different?  I think not.  The basic logic of the militia and the need to arm "the people" (which turned out generally to be a subset of white males)  would hold.  The fact the average person might not have some repeating rifles or the like at home wouldn't change this.  

As noted in McDonald v. Chicago, sure, there was a development over time regarding the understanding of just what the Second Amendment meant.  Calling out Scalia on bad originalism is a bit of a parlor game, but even textually, the whole thing is somewhat troubling, at least curious. A text that specifically highlights -- something the Constitution nearly never did -- what is specifically at issue largely edits out the first part as something of an also ran ("might').  Yes, in the long run, this is said to advance the needs of the militia.  But, doesn't it have a sort of round peg in a square hole flavor?  Why wouldn't the "arms" be militia arms?  

The focus on an individual right for personal self-defense in the home, a right that I do think exists, is confused here. The Second Amendment to me is best seen as tied to a specific purpose that does involve individual ownership, but only as a means to an end.  People have guns for a range of purposes -- hunting, self-defense, target shooting and so forth.  Originally, one purpose was to defend society in generally, beyond the degree self-defense itself does that.  The current approach is too personal, solitary for my tastes. The image is of a solitary (probably male) person defending hearth and home. But, the Second Amendment is about the "militia," which like the jury is more of a group effort.  

I would get to the same basic place in another fashion. First, the "dangerous and unusual" exception would provide a narrow means.  Second, more broadly, personal ownership would be seen as part of a wider whole, just as free speech and other rights would be. There is a general right to keep and bear arms to advance the interests of the well-regulated militia.  This involves regulation, more so than religious belief or speech; we don't read of "well-regulated churches" or the like. This alone seems notable, including as a partial reply to Justice Thomas' recent dissents that argue that the Second Amendment is getting second class treatment.  Guns here are different.  It's in the text alone. This is so even if you think "well-regulated" is self-regulation to "make regular." Still not present for religion and speech, which can be rather irregular. Disorder is more encouraged in those contexts. 

All rights will be regulated somehow. Specifically, the regulations here are appropriate for the items ("dangerous and unusual") and overall ends. The ends here being self-defense, certain types of firearms can be banned, just as certain types of speech is deemed too dangerous or not worthwhile enough to allow (libel, child porn, threats etc.).  The home is special here as it is for various rights.  Thus, yes, possession in the home would get special protection, but like Lawrence v. Texas, don't think the right is limited to the home. This would not really for me be a "Second Amendment" purpose.  Personal self-defense is a separate liberty.

Heller does focus on personal self-defense and there is a general understanding that agrees with that point of view. So be it. There is a means to connect it all together. The government can very well decide that machine guns are necessary for militia service.  There also might be other weapons that are "dangerous and unusual" in some fashion that for the limited purpose of professional militia use would be appropriate. It might even be constitutionally impermissible for the federal government to deny specific states the power to do so.  But, for the specific personal individual right at issue, it very well might be different. The qualifiers are added advisedly since, like jury service, I think there is an "individual right" to membership in the professional militia, which again might have arms different than those individuals themselves can for home use.  

Since Heller was so originalist in nature, it seems notable that the idea of two categories of arms would probably seem curious to the Founders. The weapons they took to the field were akin to the ones they had at home. There weren't "militia" and "personal use" weapons to the extent the "two classes" discussion seems to establish. The approach here seems somewhat artificial, even if handguns might be a form of military sidearm or whatever.  Now, personal weapons are front and center, their connection to the militia somewhat happenstance. Why not simply accept that personal ownership is a separate liberty and militia use can be regulated separately? Even if the second part of the Second Amendment is not a clean overlap of the first, there is more of a connection than the current rule says.

I think the Second Amendment applies to "both" types of weapons but their different purposes and effects allows different rules.  

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* Defined here as a gun where one pull of the trigger fires more than one shot.  Per Wikipedia, a "semi-automatic" is a weapon where the gun is ready to fire after the first shot but it requires another pull to do so.

** "Congress added bombs to the list of weapons for which unregistered possession was a crime in 1968. Congress expanded the scope of the National Firearms Act in this manner because of its "specific declaration and finding that destructive devices (such as bazookas, mortars, antitank guns, bombs, missiles, etc.,) machine guns, short-barreled shotguns, and short-barreled rifles are primarily weapons of war and have no appropriate sporting use or use for personal protection." 

SCOTUS End of Term Watch

[I will be back Tuesday, so here is a holiday link.]

Twitter provides constant legal news (among other things) with Chris Geidner (Buzzfeed) and Kimberly Robinson (Bloomberg)  favorites.  Geidner comes off as a bit of a nut at times (e.g., his Hamilton and Good Wife fixations) but has an impressive resume as a lawyer and journalist.  Robinson's SCOTUS end of term numbers wrap-up (less than 70 opinions from cases with full argument).

The big news this term was the surprise (in hindsight, a guy in his late seventies dying is not really but other than Rehnquist -- who had fought cancer for around a year already at the time -- dying in office was just not something that really happened; it really shocked me at the time) eight justice Court.  The Republicans simply didn't want to do their job and have Garland hearings, even though he's basically the best they could hope for in this position.  The odds of a Trump presidency is low.  This alone was a "fu" to the country and shows they should lose the Senate.

The Robinson article notes that Thomas has thirty-eight opinions in argued cases (figure a few of these, if he was alive, Scalia would handle; but many of these were Thomas solo jobs regardless). Thomas also spoke during oral argument, for those in the know, about as remarkable as "Garbo talks" was back in the day.  The "Thomas Constitution" (my "Joe's Constitution" is still available online!)  theme was addressed by a few commentators.  

He is so convinced of the wisdom of his approach to the law that he rejects practically the whole canon of constitutional law. It’s an act of startling self-confidence, but a deeply isolating one as well. Even his ideological allies, who mostly come out the same way on cases, recognize that they must dwell within the world that their colleagues and predecessors created. Thomas, in contrast, has his own constitutional law, which he alone honors and applies.

It has been noted that Justice Alito (though in this case Roberts joined in, repeatedly it was Alito/Thomas, often in relation to orders)  has shown some annoyance (strong disagreement would be a nicer way to put it) with how the Court has been deciding various issues.  Highlights include his separate stun gun concurrence, his snarky dissent in a federal statutory criminal case (the one where includes a "dialogue" at sentencing) and dissents from the bench in both the affirmative action and abortion cases. Some of these were joined by Roberts.  It has been noted that there appears to be a new "center" -- Kagan, Breyer and Kennedy.  Toss in Garland,* you might truly have a Breyer/Kagan Court.

[Deepak Gupta in the ACS term review at one point argued that multiple opinions this term were a sort of a compromise pablum that avoided the Court needing to admit they were more split than the few 4-4 opinions suggested. Some like this approach to reduce the power of the Court though it has its limitations regarding clarity of national law and we are going to get a ninth justice eventually.  If you like minimalism, Garland might be the best bet there.  Anyway, this involved various compromises, like the contraceptives ruling, and those three seem to have had a large role, often Roberts going along without comment.]

Thomas is not a big one on stare decisis or the limitations of multi-member institutions that require some degree of moderation and compromise. As seen in the medicinal marijuana case, this doesn't always have a necessarily conservative result.  But, this isn't that off (though find the guy a tad excessive):

One final word about hubris before I go. Randy Barnett goes out of his way to praise Justice Thomas for willing to overturn generations of Supreme Court precedent if text and history so demand. But that precedent is the result of a complex combination of prior Justices' calculations of law, politics, social reactions, counter-reactions and values. Certainly times change and with those changes so should Court decisions. But it takes a special insight, a special intelligence, and a special feeling of superiority to think that one's own perspective on the complex relationships between vague text, contested history, and the rights and privileges of our people and the our governments can be resolved neutrally through an originalist methodology, and then end up with the political platform of the 1992 Republican Party. I envy that kind of insight.

The important part of this is probably the "complex combination" part that explains (and on certain blogs etc., this is something that some liberals at times miss) the nature of various opinions. They are imperfect compromises, not ideal on the facts or the law in certain respects.  It is fine to critique them, if one realizes the reasons that went into them.  Sometimes, the opinions are imperfect given the imperfections of the justices (though that's part of reality too).  But, it's more than that.

If things go as they have in recent years, there will be scheduled order days during the summer as well as any ad hoc orders necessary. The future of the Court is coming. Not quite here yet.

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* I stick to my overall belief that Garland, taking everything into consideration, was a very good choice.  It is a failure that those who care about civics have a strong reason to find quite depressing if (as it seems likely) he won't be confirmed during the Obama presidency.  If things worked as they should, we should have had a nine justice bench by October. Plus, the Republicans got a true moderate, apparently something of a minimalist and one who won't be there as long as others. Win win. 

But, if he does not get confirmed, I really hope Clinton (as it seems would be necessary) does not re-nominate him. (Knock on wood that sanity will prevail there regarding the Clinton part.  If the Republicans retain the Senate -- which is depressingly quite possible -- it's a tougher call.  But even there, I'd at best use him as a back-up.)  You bet, often the house (or White House) wins.  Tough luck.  Let her pick a younger woman and/or minority who is somewhat more liberal.  Screw you assholes.