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

Friday, June 23, 2017

Supreme Court: Gorsuch Dissents

Mr. Perry’s is an invitation I would run from fast. If a statute needs repair, there’s a constitutionally prescribed way to do it. It’s called legislation. To be sure, the demands of bicameralism and presentment are real and the process can be protracted. But the difficulty of making new laws isn’t some bug in the constitutional design: it’s the point of the design, the better to preserve liberty.”
Judge Gorsuch's first dissent. OTOH, seven justices, including Roberts and Alito, joined RBG's majority opinion that said certain "legislation" required something. The "process" brought forth it. etc.  Now, it is not that I am fully sure one way or the other of the correctness of the majority here, but do generally think that the seven justices at worst are merely interpreting the law wrongly. They are not legislating from the bench. In fact, repeatedly, RBG and Breyer are are the ones who are promoting restraint here.  This sort of patronizing b.s. will be in place for decades though.

There are six opinions left and all that will be handed down will be done on Monday.  So, it might be the case that we will have a couple 4-4 opinions, which might be held over for re-argument so the Trump judge can decide.  Meanwhile, the ones handed down today in a mild way advanced good results. The one cited upheld an employee right to bring his claim in a certain forum.  Another, 7-2, continued the Roberts Courts at least mild tempering of the excesses of immigration law.*  Here, the chance of staying in country, even in prison, was seen as reasonable judgment for plea reasons. And, Kennedy led a 5-3 Court for a reasonable regulatory takings case.  So, nothing profound, but overall okay.

Things might be a bit more complicated on Monday. Shall see.


*  This opinion might only marginally help the person, but the principle is appreciated and might in another case do more.  Also, as one summary notes, we get a sense of the type of people affected by such laws:
Jae Lee, the defendant in the case decided on Friday, moved from South Korea to the United States at age 13. He has lived here for nearly three decades and runs a lawful business; his parents became citizens, but he remains a lawful permanent resident.
This ultimately is going to turn on policy, but the courts, including in applying the laws on the books, have a role.  And, Gorsuch's patronizing (condescending?) platitudes aside, there is play in the joints and room for debate there.  Aim for as much justice as possible.

Thursday, June 22, 2017

SCOTUS: Criminal Justice Day

Three somewhat notable criminal justice opinions today, one continuing the Roberts Court practice of softening harsh immigration criminal law. Gorsuch concurred there ("respectfully"!) saying Kagan decided too much. Gorsuch basically joined with Alito/Thomas when he voted separately. Breyer/Kagan dissented here (defendant lost). They split on another lurid murder case. Meanwhile, nice obit on a lower court judge many probably might not know about. Nine cases and some important decisions (travel ban etc.) to make left.

Wednesday, June 21, 2017

Summer Begins ... Sigh

Summer begins and the year continues to be a bummer, including two special elections going the wrong way yesterday (Georgia/South Carolina) though them being close (usual very safe red) is of some value. Mets beaten 12-0. Older players, pitchers off injuries and second year slumps possibilities (Gsellman) made high expectations a bit overblown. But, especially with key injuries like to Thor, everything that can go wrong seems to be going wrong with little going right (Wheeler was very good for a time, but now had two horrible starts). Sigh.

Monday, June 19, 2017

SCOTUS: Trademarks and Sex Offenders on Amazon.com

Partisan gerrymandering does have First Amendment implications, particularly freedom of association, but two important opinions today. First, "disparaging" trademark prohibition (applied to "The Slant," who used it ironically) unanimously overruled (some dispute on details). Way to resist "Redskins" is private pressure. Also, split 5-3 on breadth of dicta (Alito probably right to be careful), broad online blockage of sex offenders overturned.

SCOTUS Watch (Part 1)

Busy day. First, good discussion -- with many reasons -- supporting cameras. Second, important partisan gerrymander case to be decided (though again, four justices dissent as to a stay and don't say why!), which some are saying means Kennedy will stick around. Sotomayor continues to go her own way to support liberal jurisdiction rules. First dissenting vote to written opinion by Gorsuch perfectly expected (criminal justice). (His first opinion challenged on style and substance here.) Another error correction per curiam. Pithy first paragraph makes me think Roberts wrote it. OTOH, not quite this good. 1A next.

ETA: Also, a "Bivens" case involving post-9/11 treatment that was a destined to be a lost cause with Sotomayor and Kagan was not involved. Breyer dissented from bench in 4-2 (3-1-2) restriction of civil litigation. One claim left open for now. See here for analysis, including my comment on Breyer's oral dissent. Will foreclose citing them but other opinions will be discussed in depth various places too. More opinions on Thursday.

Saturday, June 17, 2017

Police Reactions Early and Late Week: Quite Different

We honor the police who stopped the attack at a congressional baseball game from being more lethal ("well regulated militia"?) and then protest later with the not guilty verdict in the Philando Castile case. Situations quite different but still up/down. Some statistics: mentally ill and black victims stand out. Reading: Chris Hayes and The Hate U Give. As to rhetoric per the political attack, my baseline is human empathy with even "deplorables" a matter of humanity. Non-humans don't have the wherewithal to be deplorable.

ETA: Regarding the police killing, when the NY Daily News editorial staff says "simply madness" -- it's not some left leaning group -- it's a red flag. The case seems so gratutious. EVEN THIS? Come on. It's like waterboarding. Got to draw a line SOMEWHERE!

Friday, June 16, 2017

Formal Investiture of Judge Neil Gorsuch

The formal ceremony to insert the replacement for the stolen seat occurred yesterday, the "golly" Trump representative and various other deplorables present. This asshole will be on the Court for decades most likely. And, as seen by the beginning of the audio here, Trump's court of appeals nominees are starting to take their places too. How do RBG et. al. (including Sotomayor who has to sit next to the guy!) feel? Can all of them really treat Gorsuch merely as a colleague? Maybe, they can. I have my doubts I could. Imagine if Kennedy retires!

Monday, June 12, 2017


Still waiting on decisions regarding taking certain cases, but had a per curiam regarding geriatric release (and parole for juvenile offenders). Not sure the point of such pinpoint error correction. Important gender rights opinion (cites SSM cases/Alito and Thomas concurred separately) though party loses out for now in the end. It's an immigration case so query if usage of constitutional principle there (six votes at that) helps the travel ban challenges? One other opinion of note basically because (Golly! how folksy!) it's Gorsuch's first.

ETA: It's not exactly as exciting for many, but SCOTUS seems to be dealing with intellectual property issues in various cases of late and took a significant one for review. As to the immigration decision comment, the provision is differentiated from congressional “exceptionally broad power” to admit or exclude aliens. But, rational basis still must be met. OTOH, the litigant might still get relief though others might be hurt for time being.

Saturday, June 10, 2017

RIP Glenne Headly [plus Comey]

I remember her from two early roles and don't recall much else but this obit about "medium famous" (often the best kind) actress felt worth noting. Meanwhile, this is a powerful analysis of fired FBI director James Comey's written statement to Congress from a somewhat conservative source. Just would note not being personally investigated for "counter-intelligence investigation of his personal conduct" (and even there not let off the hook) doesn't amount to much. Sigh. This has been a crummy year.

Wednesday, June 07, 2017

Supreme Court lifts stay of Alabama execution

First saw this in a tweet from Chris Geidner (Buzzfeed). It seems gratutious (at least explain yourselves! both sides!) to not let the 11CA stay for now as they examine the question; not sure why Kagan didn't publicly join the other three dissenting. Was told already I should not assume vote of those not publicly noted but unclear why the presumption of silence = consent should not apply. The person is due to be executed tomorrow. [And, he is.]

ETA: The Hate U Give was very good, a sort of fiction companion to Chris Hayes' latest. It's about a teen straddlilng two worlds, a witness to a police shooting. Movie in works.

The Teacher Wars: A History of America's Most Embattled Profession

The first two thirds of this book was an interesting collection of basically snapshots through the ages (early 19th Century to 1970s). Then, it got (with a longish chapter) bogged down in recent disputes over teacher training and such. It didn't even really help me understand current disputes like "Common Core" and national standards that much. Not comprehensive, but a helpful look (supportive blurb by Chris Hayes suggests author's sentiments).

Monday, June 05, 2017


Low level opinion day as a whole though did take a notable cellphone case that raises 21st Century 4A concerns. Other hot button cases still up in the air. Unanimous opinions all around though Sotomayor concurred separately to flag a concern for an expansive application of a church plan exemption. Another case basically a punt notable for Gorsuch's [already putting himself out there] involvement. More. Action on a gerrymandering case and limiting reach of drug forfeitures. Unless Kennedy retires, might be a low key June overall.

Friday, June 02, 2017

Trump Withdrawal From Paris Agreement

The legal implications of Trump announcing his withdrawal from the Paris Climate Agreement is complicated.* But, the ultimate message is rather negative, though it is largely basic Republican in nature (if of the crude form that some rather not use).  It is sometimes noted that we are in bad company respecting the death penalty, especially certain applications.  Here, only Syria (civil war) and Nicaragua (thinks it too weak) didn't join.

When Chris Hayes live tweeted Trump's announcement (Pence later went on FOX to suck-up and continue the b.s.), he mentioned its voluntary nature. This led a few people to wonder why we should care.  Hayes in a somewhat belabored metaphor cited a hypo of someone who promised that they would quit smoking and would provide scheduled announcements of their progress. It was an incentive. It also is an agreement smoking is bad.

"addicted244" summarizes things nicely:
The Paris agreement didn’t do enough. But you cannot do enough by doing nothing.

Just the fact that they brought nearly every country in the world to agree on this was a HUGE step. Acknowledging the issue, and acknowledging that developed countries owed developing countries a debt because a lot of their growth was based on polluting the world for current and future generations was a massive step forward. It allowed countries like India and China to start making major steps towards improving their climate change stories, to the point that both countries have announced target far more stringent than the Paris accords requirements, and both are on pace to beat even those stringent requirements.

Just the fact that almost every country acknowledged that climate change was a problem that we need to solve together lays the groundwork to start solving that problem together.

That the Paris Accords didn’t achieve everything needed to be done is a feature, because if a few meetings could have solved the problem entirely, it wouldn’t really be a major problem in the first place.
And, since Republicans -- and some Democrats really -- would  not support something with more teeth, particularly something that required a supermajority passage as a treaty (the agreement worked within existing treaties to some extent and overall legally it is unclear just what Trump really could do right away*), Obama did what he could. Not enough, but something that helps things forward.  This is a step backward though how much is up to the parties.  For instance, localities are starting to pledge to work toward the goals of the agreement.

There has been some strong rebukes and it is deserved. But, it is left to the resistance yet again, the foreign flavor of that word fitting since the "leader of the free world" apparently is a woman -- the leader of Germany.  We also have the new president of France with his older wife.  And, local efforts too.


*  It is also unclear he knows what he is doing:
The President also announced his intention to renegotiate the Paris Agreement if possible, apparently after notice of the U.S.’s intended withdrawal. While perhaps reasonable in a context such as NAFTA, which has only two other parties, in the setting of the global climate negotiations such a proposal is a red herring. The Paris Agreement is the product of a quarter century of intense negotiations, including the Kyoto Protocol which the United States declined to ratify. To expect the entire world to commence yet a new round of negotiations at the request of one state—even one as important to the issue and politically powerful as the United States—is simply not a reasonable expectation.
Reasonable. If only.