SCOTUS Watch: Grants

SCOTUS granted a bunch of cases for oral argument, including one that will threaten public service unions. This all part of the Republican leaning policy approach of the courts. An article discusses some more a lower court nominee covered by this blog, focusing on her religious associations. This is somewhat interesting but think the coverage is focusing too much on that as compared to her overall conservative views. Big reason she in particular was picked. Her religious views probably factored in and if done right can be explored.

SCOTUS Watch

The year continues to be bad but it is starting to fade -- we are almost ready for a new term. "Long conference" time! Time for a few more '16 term orders. Just in time, Trump has a new travel order, which might moot the current case. SCOTUS is going it slow on gerrymandering. Meanwhile, Gorsuch is ratcheting [McConnell] up [Trump] the impropriety.

ETA: I have not read a full analysis, but unclear how much the "new" travel ban really changes anything, at least to make it less offensively both arbitrary and broad (as to those covered). As the link notes, its effect on North Korea is trivial. Venezuela is also a limited thing. So, Chad? I foresee more litigation in its future. [Execution held up, 6-3.]

Sports Update

A few things watched/read recently but nothing really wanting too much comment -- the books as a whole were somewhat blah if okay. The Mets (and likely Jets; the Giants isn't starting off that well -- two losses, less offense than the Jets) wish "somewhat blah" fit their performance. Dolphins next for Jets -- sorta winnable; then two of the best bests for wins. Killer schedule most of the rest of the way. Eagles for Giants; both a should and must win. Few slots not quite there for MLB playoffs. Hope the Twins hang on.

Primary Day

People are already talking about 2020 but first let us deal with 2017. There is after all various national and state races going on.

It is time for New York City elections.  Though the NY Daily News doesn't like him (recently sold; the editorial board made clear to note they were upset he had no serious competition yesterday), the mayor has a lot to be proud about.  The ID card alone is impressive.  He received about 3/4 of the votes.  I gave Robert Gangi, the lefty dreamer sort in the race, one of his few votes.  But, hey, more power to you big guy.

The other races did not have much competition in general. The Brooklyn DA, who replaced a newcomer who died, got some serious competition but won comfortably.  The comptroller had to competition. The public advocate won comfortably.  The main battles were a few council races, including my own -- the lucky 13th.  To me, the wrong person won, the one with a job already (state assembly), who (he says its for the public service) I think was influenced by the pay raise (which is a bit backward). 

The article above notes: "Marjorie Velazquez, a district leader who had the support of Vacca (incumbent) and Mark-Viverito (outgoing city council speaker, may get a second, more difficult shot in November on the Working Families Party line." You'd think such support would get you the job, but the winner seems to have had support of many party leaders including one who is a leader of the faction that caucuses with the Republicans in the state senate (that alone pisses me off).  I kept on seeing his damn campaign sign in store windows and even two big freestanding signs on primary day.  In the same long row of stores, I caught a single of one her signs.  We are not talking a lot of money either.

Mark Gjonaj: 38.6%
Marjorie Velazquez: 34.4%
John Doyle: 19.1%
Victor Ortiz: 4.8%
Egidio Sementilli: 3.0%

The NY Daily News supported Doyle. I thought that this was in effect a good result because of some forty percent threshold to prevent a runoff.  de Blasio, e.g., avoided one the first time around by a fraction of a percent.  But, apparently it does not work that way.  Anyway, with all that money and face recognition (after all, he is the state assemblyman of the district, which I guess means if he wins in November that I'll have to vote for a new one), the fact he won by what amounted to a few hundred votes is not surprising.  If a tad depressing.  I particularly do not like people resigning from their seats for reasons other than something like appointment as a member of the Cabinet.  Going down one level and denying someone else the position is to me both unfair and not appropriate. Serve out the term you were voted to fill. 

If she is not running on that line in November, I will vote for whomever is or write in someone.  He got my vote for assembly.  There will also be ballot measures. Oh well. Got my sticker.

[Found this coverage. Can you be more depressing?]

Responding to 2016 Elections: Supreme Court

[And Also: Congress passed a joint resolution regarding the white supremacist events, which means the ball is now in Trump's Court. This is a footnote of sorts to Art. I, sec. 7.  A single house of Congress can simply pass resolutions, but a joint resolution goes another route.]
 
Some SCOTUS orders going on, including no dissent to not intervening in an execution and staying a 9CA judgment involving the travel ban.  Four justices (guess what four) did publicly (if without comment) dissent to a stay an ongoing Texas voting rights case.  Analysis with Gorsuch photo.

One comment wondered what we should do regarding the Supreme Court. I'll post what I said.  It's depressing but we have been down this road before. Unfortunately, conservative justices are not as old as they were in the early 1930s. And, the one that is ... well, we don't want him to retire.

A major thing to do is to wait them out. Hard but was done in the past with let's say segregationist justices. Second, reduce the harm as much as possible, including finding ways to get wins at least in limited ways. So, e.g., privacy rights are a concern of some conservative justices as seen in the cell phone case. Third, protect as much as possible by other means, including state courts and legislation. This clearly will require getting more political control such as in the House of Representatives.

Impeachment is not really a credible approach and there is a concern it will be used against you (see the original "Justice Chase" precedent). The Kennedy (assumed) replacement process will be a major act of war here & Democrats must find some means to get something to hold over Republicans to try to get at least a half-way decent replacement. The same with lower court judges.

Finally, there is already thought of adding seats to the Supreme Court if Democrats regain control after 2020. I'm not sure that will work out though it might be something to think about when the time comes. Overall, I'm really concerned about this especially if RBG or Breyer are forced to retire.

Seventh Circuit nominee Amy Coney Barrett & Religious Questions

[This article used her hearing -- not this issue specifically --  to criticize the lack of openness about the candidates' views.  The video provided includes a new Republican senator being upset.  One low point is a nominee not wanting to cite an opinion she had problems with since a litigant might later question her ability to apply them.  We can discuss how we got to this point, and it's understandable, but the point is still a problem.

Seriously?  The senator there needs to find something, there must be something, where she actually did criticize an opinion. Or, ask if a critic of Plessy should not have been nominated to the lower courts in the 1930s. Of particular annoyance is that some senator is not going to suddenly change their vote because she criticized some case five years back and cops to it now.  There has to be a bipartisan push for openness or no confirmation.

As basically suggested by Sen. Kennedy there -- no not that one -- we are dealing with humans here.  And, they have opinions and experiences that in some way will influence their judging. This need not be some special "gotcha" though sure everyone won't simply be bland ciphers lacking opposition.  That happens too. And, you can still vote for people you find fault with somewhat. They are human.  A "no" vote in confirmations usually means a special extra concern, not just favoring someone else given your druthers.  They were nominated in part for this and it is perfectly appropriate for senators -- at least up to a point -- ask them about it.  And, yes, both sides' nominees play this game.

This is so even if you think the questioning as to religious beliefs below was done wrongly.  At some point this is a sham. If a senator in the majority, who is going to vote for you, cannot get decent answers here ... ]


ETA: This Daily Caller, yes the source is used advisedly, piece is informative.  Take Sen. Durbin, a Catholic, explaining his position with inclusion of a three minute video (better than some thirty second clip).  The video shows the context of his question to him if she is an "Orthodox" Catholic, which some have been outraged about, as some crude "religious test."  She used the term in the infamous article and it for some reason confused him.  He asks for a definition and then asks if she is one, partially since there is some debate over what "orthodox" means.  

I'm still not really supportive of the question -- it really opens up a can of worms -- but it wasn't some reprehensible moment.  Finally, find it hard to believe her faith really doesn't affect her judging at all.  In some fashion, at least along the edges, these things will influence you. But, overall, her article shows to me an appropriate approach.  We should be honest about this and senators like Whitehouse and Franken being upset at nominees trying to pretend they are in effect blank slates, it's law all the way down (to reference something Kagan said), have a point.  

But, unless there is a very good reason to think a person's religion is going to interfere with their job, a senator should be wary about bringing it up.

Plus: NYT op-ed sympathetic to the questioning.

I'm depressed at the number of conservative judges that will come as a result of Trump, especially at the top.  But, I have seen some of the "Legal Resistance" -- including liberals -- supportive of some of the nominees to the lower courts.  I gather the same would be true if Hillary Clinton won but suffice to say it's possible that the above can be true and also that on the merits the picks in various cases are good to the extent we are stuck with conservatives.  Also, it is best not to rely on false issues.

I think a major concern with Amy Coney Barrett is that -- contra the concern here, which I address in one of the latest comments -- is that. Reading over the now infamous article, didn't find it really problematic. The basic idea is that being Catholic leads one to be against the death penalty, but a Catholic judge should not stretch the law (even if there is room to make it look okay) to avoid applying it as a matter of constitutional law.  At worst, and the article suggests line drawing might be complicated, the judge should sit out if they are unable to do so. This should appeal to liberals, especially if the same principle applies to abortion.

Anyway, it's just one article, so who knows how much weight should be given to such things.  I think it is okay for senators to ask her about it, fleshing out her understanding of constitutional interpretation. As discussed here -- added comments there as well -- a couple Democratic senators might have made something of a botch of it all.  I'm not going to rely on some thirty second clip where Sen. Feinstein said "dogma" or anything, but along with the Sanders thing (which was covered by a link referenced; I'm wary of his stance and it received some push-back, including from some otherwise sympathetic to him generally), it really upset certain religious people.  Should be careful there.

Without trying to watch a few hours of testimony, part of this care should be to understand what is being argued. A confirmation hearing isn't necessarily the best place to clarify, but there is room for understanding and that should ideally be the place (along with behind the scenes questioning and questionnaires/responses to questions in writing)  to put this sort of thing out in the open.  Of course, it is all going to be an imperfect process.  But, at times, it is going to involve religious issues as noted by the professor writing the discussion in the previous link.

By prohibiting religious tests, the Constitution makes it impermissible to deny any person a national, state, or local office on the basis of their religious convictions or lack thereof. Because religious belief is constitutionally irrelevant to the qualifications for a federal judgeship, the Senate should not interrogate any nominee about those beliefs. I believe, more specifically, that the questions directed to Professor Barrett about her faith were not consistent with the principle set forth in the Constitution’s “no religious test” clause.

If so, not asking questions about "religious or spiritual foundations of their jurisprudential views" might be too broad of a test.  The professor there is sure to say that he thinks the nominee is overall commendable even taking into consideration the stance of that article.  But, let's say a person's religious belief holds that you have a right and duty to stretch the law as much as it is reasonably possible if otherwise it would violate natural law?  Is this possibly religious belief truly "irrelevant" to qualifications?  Free exercise rights are not absolute.  Finally, if religion plays an important part in one's worldview here, why not cover it? OTOH, certain questions might have gone too far, including asking her about her faith in a way not closely tied to the requirements of the specific position. 

A more strict view of the Art. VI rule to me is too extreme: the summary here suggests the clause "would require them to avow or disavow, under oath, allegiance to a particular faith or set of religious doctrines."  Under that test, Congress could pass a law stating the no Catholics, but as long as nominees did not "under oath" (presume affirmation too) have to swear they were not Catholics to execute the rule, it would be okay.  Along with the First Amendment generally, think things are a bit stronger than that. And, the spirit of the provision warrants special care before one's religious beliefs should matter. Again, in narrow cases, they might.   But, my concern is their overall beliefs on positions as compared to specific religious beliefs. That sort of thing can be misleading too at times.

Overall, I think this discussion has much going for it, putting aside my wariness about certain aspects of a long discussion.  Special care should be taken to questions regarding her faith and when it overlaps with judicial ideology, the senators had a special duty to tread carefully.  They probably didn't in certain instances, but overall, I'm not going to be very upset since on balance they have earned some good faith.  (If I can use that term.)  And, even there, we are only talking about part of extending Q&A.

The nominees repeatedly are going to have religious beliefs some do not like, but we can focus on their non-religious beliefs and qualifications (or lack thereof) when opposing them all the same.  Finally, I'm sure the specific nominee here has judicial ideological beliefs I oppose -- Trump's legal nomination team aren't aiming to pick neutrals.  But, this specific approach is misguided and will make some look bad to those not already convinced.  I would try to avoid such unforced errors.

Endorsement Test / Racist Symbols

A bit repetitive, but to underline the endorsement point:

There is little doubt that the Klan's main objective is to establish a racist white government in the United States. In Klan ceremony, the cross is a symbol of white supremacy and a tool for the intimidation and harassment of racial minorities, Catholics, Jews, Communists, and any other groups hated by the Klan.

As I noted, it is suggested in one article that perhaps Justice Thomas was interested in reading a reply (it takes just one justice for the Court as a whole to request according to the article; guess a majority can overrule if desired?).  The opinion cited above is one of multiple cases where Thomas was particularly concerned about white supremacists, particularly usages of crosses, including a separate dissenting opinion regarding membership of an Aryan gang being relevant in a capital sentencing case. 

This includes even then rare questioning from the bench such as in the case excerpted which was a mixed free speech and Establishment Clause matter.  A state wished to deny stand alone religious displays in an area deemed a public forum.  In this case, the desired display was a cross offered by a white supremacist group since other holiday displays were allowed. The Supreme Court held that since there was not a constitutional establishment problem, this was a violation of free speech.  A majority of justices still was concerned about endorsement of religion even in this context (a private display on public land) though only two justices specifically thought the state was correct as applied.

The basic rule in place was that an illegitimate state endorsement of religion was one where (to cite O'Connor's opinion) the government makes adherence to a religion relevant to a person's standing in the political community.  So, basically a stand alone creche that honors a Christian view of the winter holidays (as compared to a mixture of displays) might be illegitimate.  The changing membership of the Supreme Court makes the particular rule now in place more unclear (though the Court has yet to specifically overrule the old test), but the basic concept is sound. It is especially a concern when minors are involved, Justice Kennedy's vote in particular. This case involves a minor. 

As I noted, people have had standing to sue to address the constitutionality of such religious displays.  It isn't seen as an inadequate "stigmatic" injury.  Plus, the general concern is not merely stigma. When specific religions are favored or religion in general matters in ways it should not [see, e.g., religious oaths], it is a general problem.  It has real life effects other than hurt feelings, including affecting real policy.  The mere usage of "God" all over the place (on coins, courtroom walls, in our Pledge of Allegiance etc.) alone has implications. The more sectarian endorsements surely do as seen by our abortion funding policy where one view is in effect established.

I refer again to the article I cited about how state confederate flags affect trials.  But, racist symbols, including Confederate war memorials, have a general purpose and effect. A subheading in the district case is telling: "Keeping the Spirit of the Confederacy Alive." The district court did not take seriously the lawyers claimed concern of physical safety or stress from the Mississippi Confederate Battle Flag.  But, if thankfully less so now (but see recent events), can we really say it is totally without merit for a black person in this country?  Thomas spoke of the "intimidation" of the KKK cross.  Does not these racist symbols also have that character?  It's not a burning cross, but frigid weather not being sub-zero is only so different.

Heritage is appealed to by some in respect to government endorsement of these symbols.  Examination of the history shows that it is somewhat fatuous to take that on face value -- if heritage is honored, it is a selective one. But, as with usage of religious symbols, the fact that there might be some sort of legitimate state purposes promoted does not alone make state action acceptable.  A permanent Christian cross on top of a statehouse is broadly seen as a step too far, even by Justice Kennedy, who did not go along with O'Connor in the Allegheny creche case.  Why should a big Confederate cross, also honoring a racist message, okay? 

Both are in effect violations of equal protection, both have their special constitutional concerns.  A religious display is specifically addressed by the First Amendment.  A racist display goes to the heart of equal protection, which is a general right but clearly race was and remains a special concern. Finally, the Thirteenth Amendment adds a final gloss -- it is a "badge of slavery," even if an open-ended security there is left to congressional legislation.  I think the bar against slavery, which obviously has a special racial context in our country, might by nature have a penumbra protected here.  Again, the lawyer should have standing to make the case.

"Brief amici curiae of Members of the Congressional Black Caucus, et al. filed. (Distributed)"

Again, I don't want to assume too much regarding this matter though wish it wasn't buried in the docket page -- even if one justice has a problem and dissents to an order, it is upfront on the Order Page. Here, if I didn't happen to see an article about the matter, which is obviously quite topical, I would not have known about it. There are lots of cases simply being examined, some having some sort of action like this. I would add as well that while I do appreciate what SCOTUS does provide (simply by typing in "Moore" in the search box on the docket page, I found the page), more can easily be provided. This includes link to opinions below, amicus briefs and so first.

For instance, the Congressional Black Caucus brief, which is one of those already noted on the docket page.  Note that the docket page of the case provides a minor window into the proceedings of the Supreme Court that in certain cases might be more revealing than others, especially if there are signs that an informed observer might catch. For instance, for some reason, a month after this brief was distributed, the state is requested to reply.  Since the two courts below was dismissive (though again the district court judge took time to spell out the racist history of the flag, which amounts to an extended advisory aside), such a brief can be useful to show a different view.  Things often are more complicated.

The brief challenges the citation [the appellate opinion is here] of Allen v. Wright to hold that mere exposure of a discriminatory message is not enough for standing purposes. Granting that holding, as one must, the situation here is at least somewhat different. The case there involved parents who argued tax benefits to private schools with allegedly discriminatory polices burdened them because it affected their ability to send their children to non-racist schools.  The Supreme Court closely split (if Marshall participated, would have been 5-4), but the harm was not as direct as here -- the lawyer and his child directly is exposed to the flag.

Still, the court below says the specific harm being alleged is not enough to be denial of equal treatment as such.  It is not a matter of denial of schooling or marriage (even if a license is arguably merely "symbolic").  As the Supreme Court noted in that case: "Neither do they have standing to litigate their claims based on the stigmatizing injury often caused by racial discrimination."  The brief cites a case about a candidate on a ballot challenging a law that required statement of race; perhaps closer but still a concrete harm -- the right to be on the ballot without expressing one's race. The dignitary harm here is broader and more open-ended as to scope, even if I'm trying to limit it some to specific lawyers or students. 

But, the opinion is not about parents who actually have students in schools having some sort "stigmatic harm," so it seems to leave open this specific situation.  The problem remains that a "stigma" harm alone does not seem to be enough for equal protection purposes.  The brief points to various opinions where a dignity harm seems to be a core concern of the courts, something particularly appealing to Justice Kennedy.  The standing issue remains.  A marriage license very well for some might largely be a matter of dignity (though it's more than that for most).  It still is a concrete thing. 

The brief ends with a concern about "endorsing" racism. This goes back to the comparison to an endorsement/religious liberty claim.  It is a core problem with these racist symbols and very well might be appropriate for standing purposes.  At least, I'm not sure what makes it different from religious symbols in this respect as long as there is some standing hook such as a person whose very livelihood involves regular exposure.  This isn't some general taxpayer standing claim though it is true that the flag affects us all.  But, if a religious symbol can be challenged, not sure what the point is there.  The two things might not have been treated the same; current events suggest if anything this is a stronger case.  

Just to toss it out there, also issues for defendants.

Mississippi’s Flag Goes to Washington

ETA: One of my regular reads to keep track of court news covered this action and suggests maybe Thomas was involved. Intriguing.  Remember, e.g., Thomas was the fifth vote in allowing a state to refuse a Confederate themed license plate, even when they had a low threshold to supply vanity plates.  Back when he spoke, he also had an extended colloquy in more than one cross related case.  So, she might be right.

According to the petition, “The message in Mississippi’s flag has always been one of racial hostility and insult and it is pervasive and unavoidable by both children and adults, with the flag flying ‘atop the state capitol, on state property, in all state office buildings, . . . at or near all public school property’ and in state courtrooms. The state’s continued expression of its message of racial disparagement sends a message to African-American citizens of Mississippi that they are second-class citizens and ‘encourages or incites private citizens to commit acts of racial violence.’”

I saw a reference about a request by the US Supreme Court to Mississippi to "defend Confederate emblem" on its flag, the last state flag with that Confederate battle flag.  There was no separate order on the page for that sort of thing. Doing some digging, found the docket page (can do a search by litigant).  The lawyer who made the claim lost at the first two levels and the state originally waived a response.  Justices want one.

It is likely a mixture of thinking his claim (a sympathetic district judge, a black Obama appointee who in details discussed the racist origins of the flag, still dismissed his standing claim fairly strongly*) a long-shot and not wanting to make too much of an attempt in these times to defend things. The appellate court skipped the history and in a shorter opinion reaffirmed that his "stigma harm" was not enough for standing purposes. It didn't accept a sort of reasonable observer endorsement test approach ala religious displays.  And, his daughter doesn't have standing either from the honoring the flag at school. So, the state doesn't really need to defend the flag as much of the lack of standing to make an equal protection argument.

The district opinion briefly referenced a Thirteenth Amendment argument, which you can find some outlier arguments made (badge of slavery) but the district court judge leaves that to Congress: "Congress alone has the right to pass legislation regarding the Thirteenth Amendment." States cannot do so to enforce the barrier in place?  That seems overboard though the second second does specifically provide it special power to enforce. Anyway, specifically, the Thirteenth Amendment on its own was not enough to provide standing here.  And, though arguably it could, Congress didn't act.  (See a discussion here for some ideas on using the 13A in a school context.) 

I would not put too much notice on the Supreme Court simply requesting a reply, especially if it turns out that it rarely is the case that the state does not offer one in such cases.  Also, again, the problem below was standing. Maybe, a few justices at least are concerned about that.  Then, they need to actually grant the case.  But, we can think about things academically here.  I do think there is a case to be made that state action is present here regarding a racist symbol that violates the Thirteenth and Fourteenth Amendment. Someone who regularly faces it should have standing if someone who does so regarding a Ten Commandment display does. This isn't merely a citizen.  He and his child have special cause to be exposed.  But, even this sympathetic article highlighted congressional legislation.

If the Supreme Court actually took the case, of course, maybe it would push the state to change the flag on its own.  Sometimes, the point is that something is a constitutional wrong, not that it necessarily is something the courts will or even should be the ones to fix. Still, at least for the purposes of standing, probably would grant him a hearing on the merits. 

---

* For instance: "Moore also claims a right to "equal dignity" based on the Supreme Court's recent same-sex marriage decision, Obergefell v. Hodges.138 [lot of footnotes] "Prior to Obergefell," he said at oral argument, "I had no knowledge that I had a right to equal dignity under the law."  I wouldn't be surprised that such overheated stuff doesn't have a "really?" implied.  I would hope as  a lawyer that he is aware that the Supreme Court protected the "equal dignity" of everyone before 2015.

The district court judge did not buy that somehow the flag makes the lawyer fear for his life or affected his livelihood since he has to face it when he goes to court.  No specific concrete injuries were found and unlike viewing a religious display, purely emotional harm or "stigma" isn't enough.

The Supreme Court from Taft to Warren

A reference to a Chief Justice Stone biography by the author led me to this work, the 1968 update not really adding much new material; there is another published in 1980. The book focuses specifically on Taft/Hughes/Stone [not comprehensively] though generally supportive of the Warren Court's judicial activism choices. And, that is a major theme (if at some point rather repetitive; this book needed an editor): judges make choices, guided by changing times and rightly so. Judicial review is appropriate, but the details are important. Pretending otherwise (just saying what the law is!) is misguided and often hypocritical..

National Day of Prayer

Past entries spell out my opposition to national days of prayers "established" by federal law or executive proclamation. This includes (as they often were) in the face of national emergencies. With a 14A gloss, I'm with Thomas Jefferson on this point. These things tend to have a sectarian cast and this one is no different, especially without the extra effort by Obama to be exclusive to non-deistic traditions (if badly phrased at times as having no "faith" or "religion" as such). If tainted [general concern] by the author, a more open-ended inclusive proclamation, not tied to "prayer," was possible.

Hopscotch

Watched this amusing Walter Matthau movie again with some other familiar faces (some might miss Herbert Lom as the Russian, looking quite different from the actor's role in the Pink Panther films) about a disgruntled CIA agent writing a book. It is based on a book, which is somewhat darker. Some busted attempts though Phoenix seemed to have some potential.

ETA: Speaking of book/movies, read the book the film Breakfast with Scot is based on. The movie overall is better, including viewing things thru more than one person. Book largely skipped over the "we might lose Scot" mandatory film conflict but the film added some good stuff, including the powerful scene where Scot quietly talks about his mom's drug use.