First Execution of 2019

(ORDER LIST: 586 U.S.) WEDNESDAY, JANUARY 30, 2019 CERTIORARI DENIED 18-6848 JENNINGS, ROBERT M. V. TEXAS (18A540) The application for stay of execution of sentence of death presented to Justice Alito and by him referred to the Court is denied. The petition for a writ of certiorari is denied.

As expected, two pro forma orders were posted last night at the SCOTUS website to smooth the way for the execution of a cop killer.  Like that old story, he is sort of like a lottery winner, one of a few people among the many murderers (including some who committed very heinous crimes) scheduled to be executed this year. To take a for instance, no one was executed for over five years in Mississippi, not exactly a liberal state. 

From what I can tell, there were various procedural concerns, but what stands out for me is the thirty year lag period.  Justice Breyer, such as in his dissent when he flagged the death penalty itself as probably unconstitutional, has repeatedly cited this as a specific problem. Justice Stevens and the courts of various nations also did so. I think it would be useful if a justice dissented in each case myself to touch upon the specific person being executed, but Breyer does not do this.  He has brought it up repeatedly though to point out the problems. Multiple reasons: delay of justice, harsh treatment on death row, trauma of such an open-ended extended limbo and the question of simple justice of executing someone for something they did so long ago.

(People are cynical about such claims since they largely blame the defendants themselves for extended appeals. As people have noted, this is a bit too glib. California has a large death row but only something like thirteen people has been executed in large part since there is no will from the top to help things out. The extended appeals repeatedly address real problems with the system. Realistically, however, it is hard to imagine due process alone is why it takes decades to execute someone.)

There are a few cases of crimes in prison, but it seems to me a bit dubious to not just let these people continue to be in prison as they have been for decades. And, thirty years? I think that is long enough even for killing a police officer.  It would not surprise me if there was something wrong with his case specifically that made executing him a due process problem. But, I'll grant that away. I also question the whole "worse of the worst" test here, comparing it to some of the real heinous examples. Again. I'll rest on principle here. This includes the fact a system is in place, not some cases that we might be willing to accept.

One criminal justice expert made it known that he thought too much emphasis was put on the death penalty given so many other people were being harmed in our criminal justice system. Plus, he thought in the worst cases that it was basically justified, though he would have it be a federal prosecution since they had more resources.  (I stopped going to the person's blog since he was in effect a Trump apologist, belittling how bad he was.) I question how bad the situation is -- there tends to be overlap between capital and non-capital crimes here. See, e.g., the treatment of those prosecuted as minors.

Plus, simply put, loss of life itself will matter more. The concern is fair though I'm not sure how bad the situation truly is -- e.g., the Supreme Court has taken numerous non-capital cases over the last few years. Other than debate along the edges, what has it really done in the capital punishment area?  Some raised the possibility of the end of capital punishment. I do not see it. There continues to be a desire for at least the possibility in special cases.  Two justices were willing to go further. I question if a Justice Garland would have went along. OTOH, he might have accepted more limits on the system in place. Well, that ship has sailed.

Next execution scheduled in February.

I Do Taxes

I did my and someone else's taxes recently.

We both have easy times of it but one other person I do it for is much more complicated (one thing involving pensions and such is truly confusing, the website giving you some sort of chart to fill out).  New York basically requires people to e-file except in certain circumstances though like declaring sales taxes, they don't really enforce it to my knowledge. And, for many, it won't be free using most services. TurboTax to me is pretty good.

A blog post* and the resulting comments led me to opine:

I just did my taxes as well as someone else's so this whole conversation is somewhat topical for me personally. It is striking how many different things pop up in the tax code, in my case three levels of government. Government itself is basically about taxes on some level -- the parliament at core about the power of the purse.

Some years ago, a progressive blog or something reminded us that rich people are rich on the back of us all. It's akin to someone I know upset about needing to pay for local services when he isn't living there. As if the roads etc. do not benefit him. Or, the idea people are paying for health insurance for "doing nothing." Patently absurd.

This talk about democracy underlines, as the House debates the "for the people" voting legislation (see Rick Hasen's piece in Slate), that we are again at a moment essential for the fight of democracy, comparable to the fight for voting rights of blacks and women. The power the rich have these days, ever more so given economic policy over the last few decades, is an important part of this. The discontent that helped elect Trump is real. The problem is to address it without further enriching the plutocracy.

What more attractive person ala Marty Ginsburg will play be in the movie?

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* Dorf on Law is an interesting blog with contributors with very different styles. The person here favors long, rather boring if erudite posts that often focus on economic issues. I like the style of Michael Dorf's posts the best. His wife tends to have more academic posts though her passion shines thru them as well, particularly about gender and animal issues. Eric Segall also comes off as more argumentative and less academic though when he goes into "academic mode," you remember he is a law professor too. 

The commenters are mixed too. One who used to occasionally provide argumentative conservative comments with a bit of venom is now in the Trump Administration. One of at least two I have engaged with online.

Constitutional Duty Without Courts

Indeed, the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise.

Justice Kennedy* saying this in his concurrence to Trump v. Hawaii (the travel ban case) is rightly sneered at but I hold to my remarks posted in response to a blog post. Ditto the reply, which seems to skip over the part where I'm not defending Kennedy and in fact added with emphasis that he was a bad messenger.  Why?  Well, a key part is that the message works a lot better when you do the job in clear cases.  I repeat:

Kennedy's concurrence matters to executive officials who give a shit.

The sanity in exile brigade -- see various former government officials on Twitter -- repeatedly cite how back in the day (pre-Trump Administration) some relevant agency had rules they followed that provided some limits and fair practices. Sham prevention.

The Constitution tends to be under-enforced especially since stuff isn't reviewed in the courts, it takes a long time when it is or some presumption of constitutionality often hides illicit behavior. Kennedy's preaching there is relevant.

But, judges also have a duty to deal with clear error.  Failed here.

Kennedy over the years has been pretentious in his civics lecturing, but the response upset about that ... was he upset when Brennan did it?  Judges repeatedly use separate opinions in particular to send messages.  "Talk is cheap."  Yeah.  Again, they "failed here."  Preaching about how officials have an independent responsibility that is and should be honored even when judges have a hands off policy works better when they do their jobs. It's a presumption of constitutionality.  It's a quid pro quo, so to speak. The concurrence itself leaves open further review of specific cases.

People inclined to follow his message know it already. Eh. I have repeatedly seen people focus on the courts alone to protect our rights as if a loss in court ends the matter, the rest just policy.  And, these remarks are partially meant for the general public in some fashion.  No one really is listening? Fine. Don't quote opinions of judges you like either then.

Anyway, it isn't black/white.  It is a continual complicated process and in our system there are loads of interrelated parts involved. The basic presumption of constitutionality principle entrusts democracy as a whole with its various parts (toss in the media, private organizations and so on) to protect our liberty as a whole.  We trust the responsibility of public personnell here, something to think about (over drinking beer or how you want to say "fu" to the man) at election time. The matter is especially such in special areas like presidential control of foreign policy or agencies.  Special red flags like animus [a Kennedy special] and violation of normal process are in place. And, other things, see various arguments over judicial review.

The core problem here is that TRUMP is the person ultimately involved here. Just look at the very caption.  That preaching is only so useful here, even if ultimately he isn't the one carrying out this policy. But, as the blog post referenced shows, that hasn't gone that well either.  It's like telling someone to be calm when they are yelling "fire" when the room is burning.

There is some truth there though.  This includes in local legislatures while the Supreme Court handles various constitutional things somewhat badly.

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* With Kavanaugh and all, one can imagine the general feeling about Kennedy in general at a liberal leaning blog, thus the overcompensation that leads to the unpleasant desire to defend the guy.  This is especially seen when people take potshots at his gay/lesbian jurisprudence, down to being mad that same sex marriage wasn't applied to the country at large quick enough and/or with a broad enough opinion. These types would have wanted Loving v. Virginia to be decided in the mid-1950s. 

Kamala Harris Has Her Formal Announcement Rally

I think Liz Warren is a better version of Bernie Sanders, but is too old, less appealing as a candidate (optics etc., which is cosmetic, I know, but her political savvy is also rougher) and best spent where she is. The main concern about Harris is some aspects of her prosecution record are dubious. Don't think that will be enough to doom her. Some will even like it as an example of her realistic playing within the system. Think she's the frontrunner with Gillibrand as an alternative. In fact, curious where Gillibrand will fit since she overlaps with Harris in various respects though she does have the most national experience at this point.

Also: AFC wins again in Pro Bowl. Not much of a game.

SCOTUS Watch

The big news is taking a 2A case for full review after nearly a decade [bound to happen, details up in the air] and letting Trump's trans military ban be applied during litigation. Kavanaugh is likely key here, both not to be decided this term either. The idea is this is a "no drama" term. They will be back mid-February though we might get an order regarding the first execution planned for this year. Red flag for me is the thirty year lag time.

ETA: The Court also set February and March calendars oral argument dates and (eventually) removed an advisory on their rarely used media page after taking the census case off.

"RBG is Kinda Hot ..."

Two people who came in uninitiated (sort of like me with "The Favourite") really liked this film but being so familiar and concerned with her current well being, I was more wary. [An example: given RBG's deep study of Swedish law, her husband's monologue at that party is a tad off.] Sorta was right to be on some level, especially since RBG is just too emotional here. But, on the whole, the film is pretty good and raises some interesting things including on the changing nature of the law. BTW, the opinion was handed down after Reed v. Reed.

ETA: Remember this "gotcha"? The reference is to the original Constitution and it is noted at one point that equal protection as applied to feds was handled by due process. But, to be honest, the line still open to confusion. The final court scene also is a bit much, from her early choking and final speech. Pure Lifetime.

2019 Baseball Hall of Fame (Two Yanks, One RIP and One DH)

I'm a Mets fan these days but props to two Yankees just voted into the Baseball Hall of Fame (not cheating should matter, so support continuing to keep certain people out): Mariano Rivera and Mike Mussina. Mussina (crossword fan) was one of those fairly few long contracts that turned out well and his quiet professionalism is a good model for us all.

Notable Dates ...

There is the ... "has that asshole really been here/only here two years" (1/20), MLK's Birthday (observed) (Robert E. Lee two places) [Kamala Harris announces] and Roe v. Wade day (1/22). Abortion is well trodden subject on this blog; this short article shows one theme (SCOTUS version): the unjust nature of regulations. I like Harris, Gilliband and Klobuchar best now.

ETA: New York passes the Reproductive Health Act.

Another Super Bowl To Skip ...

Didn't really care if the Rams or Saints won but the Rams winning after a late egregious blown call kinda is bad karma. The Pats winning in OT after KC tied it with only a little over a half minute to play with at the end of regulation to do so (won flip in OT, KC never got ball) added insult to injury. But, the Pats in the playoffs vs. Andy Reid ... stacked against ya.

Some Books

The Internet and the library reserve system only increases my ability to find out about and get books while having less time to read them (imagine the 1990s without hours online daily). I received A History of the World in 21 Women, however, just stopping by the library (to get a DVD, but now NYPL only provide them in "hub" libraries). Pretty interesting, if incomplete (most after 1800). This is also how I got The Dutch Wife, a good fictional account of a political prisoner during WWII who became a camp prostitute (she's Dutch and "Dutch wife" is slang for prostitute) as well as a 1970s man suffering that fate (without the prostitution) in Argentina. More to come -- have a pile and more in reserve.

And Also: The War Before the War: Fugitive Slaves and the Struggle for America’s Soul from the Revolution to the Civil War is a somewhat rambling affair that was really about slavery as a whole (which is fine) while being a good brisk read that gives an overall feel of the times. A basic thing to remember is that even if you thought the Fugitive Slave Clause was necessary, with "I really hate slavery, really" comments, it left open some protections, especially of FREE black PERSONS. The response was often a telling treatment of blacks as non-persons.

Religious Freedom Day

Today is Religious Freedom Day and for many that means protecting the rights of various religious believers. This is important and fundamental, but it can be taken too far, resulting in religious favoritism and harm to third parties. As the first link notes, the date is telling: it honors a law passed to protect separation of church and state. "Religious freedom" has various shades. It should cover us all in the process.

Alara Leaves "The Orville" With Her Lipstick Intact

Well, per the most recent episode -- another very good character rich plot from the new season -- she is leaving. Sounds like acting scheduling conflicts. Change is realistic if too bad here since she's a favorite of mine. Due to be replaced by another woman from her planet.

C.B. Strike: The Series [First Three Books]

I enjoyed the books though not being a Harry Potter fan and the t.v. adaption had its good points, especially the actress portraying Robin. Strike had somewhat less of an edge (and was more attractive) than in the book and the episodes as a whole seemed to be missing something. There were many good moments though the last book in particular seemed a bit too compressed here. DVD had three "making of" vignettes, one for each. Worthwhile.

Also: Others are much less gung ho, noting his team's record etc., but here's the argument that the Jets made a good choice for head coach.

New Year, Same Trump ... Will Drips Ever Crack Ceiling?!

Illegitimate "justice" writes a bland first opinion among other SCOTUS actions, released the day of Trump's b.s. speech regarding the wall and the continual shutdown which hurts our country day by day. The same day we learned about big news regarding Trump's campaign manager colluding with the Russians with campaign data used to interfere with our elections. More reason we need to impeach Trump; the alternative is de facto authorization of his actions, making it just politics. Understand the prudential arguments, but opinion holds.