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

Sunday, June 30, 2019

"Royal Wedding Collection" [Meghan Markle]

The Meghan Markle story is not quite Hallmark -- she is an actress who falls for a royal, not some average sort -- but it is definitely made for t.v.  This includes her mixed family background and early signs of being a feminist voice.  And, the Lifetime movie as well as the DVD put out of the wedding itself were both very good.  I also liked one of the books that went back and forth covering their story.  I talked about some of this in the past. 

She was in various things though her major role was on the television show Suits as a paralegal/lawyer.  I know a couple people who like that show though did not really get into when checking out the first season. Her character, however, seemed to be appealing as was the person imitating a lawyer.  The other lawyer was more blah and did not find it worth my time to watch more episodes.  The plots did not seem that interesting though they had some flavor at times.  Still, I can see why people like the show.

This entry was a result of checking out a Hallmark DVD featuring her with a royal themed movie tossed it to complete the "royal" theme.  She herself was not in royal movies, but they called it the "Royal Wedding Collection" for obvious reasons. In each movie, she has white parents (Dater's Handbook has her dad dead, so it isn't clear about him -- in real life her mother is black -- though her sister and mom is white; if a picture of the dad was around, didn't see it).  I have noted my concern about lack of diversity in these movies (we have the usual non-white supporting players here too).  (I saw part of the third movie on Hallmark and it was okay.)

Given her real life experiences (including a lifestyle blog), it a bit ironic both movies portray her as a down to earth type whose doomed boyfriend options are the ones more classy about things.  Both are probably best seen as middle of the road Hallmark movies; she is the best thing in both of them. She is particularly cute in Dater's Handbook, doing things like playfully taking food off her date's plates. Markle realistically gets into both of her characters, including the serious moments.  She is an appealing actress. The men are a bit boring in both.  The moms in both are nice.  And, the best friend in When Sparks Fly adds some interest as well. 

I like Dater's Handbook in part because she runs a marketing business and does so well. It's a nice touch and not just a cutesy type thing (like a family fireworks business).  She has problems with dating so decides to follow a self-help book, needing to decide between two guys (obvious choice: the fun one).  Pleasant enough but somewhat forced.  The second one has her leaving her small town to be a reporter in Chicago, coming back to do an article and be the maid of honor for her best friend. Who decided to marry the guy she broke off with when she left seven years earlier.  She has a July Fourth fetish.  That won't go well.  The family biz is also in trouble. I would say the same if more busy.

Hallmark often has a theme where someone reunites with a past love, who were separated often because someone left a small town to try success in the big city.  And, somehow, they usually come back and find small town life better.  The complicated here was the best friend relationship and it is not surprising -- he's a nice guy, she's pleasant enough and they both have a connection to a third person.  Plus, in real life, that can work.  People move on and all that.  OTOH, sometimes, it can cause problems, I gather.  The other movie was more about being true to yourself.  Good theme.

She tells more than one guy not for her in the first movie just that.  In the second, her best friend admits that she was more into the idea of the wedding than the guy.  That fit the plot, but we don't see enough of the relationship to know how true it is.  Other movies did a better job showing an expected wedding breaking up being not the best path while the losing partner comes off as a decent person.  Markle's boyfriend here himself breaks it off with her when he sees what is happening, letting her know that he realized they were different and didn't see their own relationship as too serious anyway.  And, again, real life is like that sometimes.

Hallmark is not meant to be serious business most of the time though there are some serious touches in some flicks. But, the content still can have charm.  These two had some though again were mild overall.  If one is in the mood.

Mets OF

It did not make the days more productive but am actually in the middle of a weekend break from posting tweets (did favor some) though not all online comments. Baby steps.

One more Mets update. Carlos Gomez is DFA to make room for Noah S. He was brought back to provide a bit of OF defense (surely would be helpful) and team speed but his defense has been questionable and offense negligible. And, with Nimmo (poor Smiley) gone so long, Conforto was shifted to CF. Some want Lagares gone instead but it is not like he has been worse. It is not just some money deal; he is not making that much.

Also: McNeil and Alonso (home run derby too), properly, made the All Star Game as reserves; position-wise, others have been better. DeGrom also is going. Hasn't quite been All Star Quality at times. Mets play tonight on ESPN. Eighth time the charm? [Yes. The bats finally out hit the bullpen. Will they play okay now -- like last year -- and nothing really will change?]

Saturday, June 29, 2019

Baseball: Fun Times

After Meghan and Harry made an appearance, the first baseball game in London traded six run innings (twice). Orioles blanked the Indians 13-0, again. Second day in a row a former Met pitcher who struggled in his last year (to be fair, he had good years) got out of a jam and Mets scored nothing. "In the ninth, the Mets put the potential tying run on second and winning run on third with nobody out. Michael Conforto, Todd Frazier and Dominic Smith went down in order to end it." And, no wonder no NYC resident wants him to run for POTUS: Bill de Blasio thanked the Wilpons “for all you do for this city and for this great franchise.”

ETA: Cut/pasted that quote from the article yesterday, but now it says: "In the ninth, the Mets put the potential tying run on second and winning run on first with nobody out."

Mets: Too Much Mediocre and Bad Mixed With the Good

The Mets are honoring the 1969 team today. It is unfortunate I was not a fan until the mid-90s since I missed 1986 (they were good for a few years there, but some hard luck). Stat: "Since the start of last season, the Mets' record in... June: 14-38 (.269) All other months: 100-93 (.518)." A bit over .500 (last year, the swoon started in May) is not good enough on its own. Definitely not good enough with those June numbers. Yesterday's sixth loss was telling: DeGrom only went six/three runs. The bats only gave them two. And, Gsellman (after an ex-Met got out of a bases loaded jam) gave up three key runs in the eighth. Group effort.

ETA: The Mets are in Groundhog's Day hell -- game after game the pen blows it. This time Lugo blew a lead after some call-up went four innings, one run, after a rain delay. But, it isn't just the pen as noted. The pen is horrendous. Rather somehow someone blows it on any given day. Some of the newbies actually show something. Thing is the bats have to pick them up. Some teams win by out hitting their pitching. Mets hitting isn't doing this now.

Florida Cross Case (with an aside on Dems Border Bill)

These days, the Supreme Court only fully decides around seventy cases as seen in the opinions of the Court section of its website. This is somewhat misleading though because they do take action on many more, including similar lower court opinions that are returned to be re-examined pursuant to an opinion.  So, e.g., a cross case from Florida was sent back this week.

Given the reluctance of the lower court opinion, more so the concurrences, I'm sure the judges will with relief rule the other way.  This is rather likely the correct path given the current Supreme Court majority though it is not clear to me that the two cases are the same.  I say this accepting there are similarities and the dissimilarities probably do not matter to this Supreme Court.  This is part of judging: unless you are Justice Thomas, perhaps, you deal with the hand in place and work off that.  Legislating is somewhat comparable in its own way, working off the art of the possible and its own limits.*

The cross involved in the Supreme Court case was erected as a memorial to WWI dead and this was of significant note to the majority opinion. There was other details that was flagged by the other side, such as a religious ceremony that suggested sectarian characteristics. But, the alleged secular symbolism of a cross to honor the dead, particularly WWI dead (cf. dissent) was of singular importance here.  The longstanding nature of the display was relevant overall, yes, including in making it clear (while questioning the whole affair) the old tests did not apply.
The pertinent facts are undisputed.  In 1941, the National Youth Administration erected a wooden cross in the eastern corner of Pensacola’s Bayview Park to be the “focal point” of what would become an annual Easter sunrise program.  The program itself was organized by the Pensacola Junior Chamber of Commerce (a/k/a the “Jaycees”) and soon became a tradition, with people gathering for Easter services during World War II to pray, among other things, for “the divine guidance of our nation’s leaders” and for faith to “see through the present dark days of war.”
Is this really the same thing?  You have the time element, yes, but it also suggests that all displays of that caliber are not the same.  The cross was the "focal point" to what amounts to a clear sectarian ceremony.  It was not just a memorial for war dead that can be opposed on grounds that a cross is inherently a Christian symbol.  There is more to it than that.  The ceremony continues. Yes, it was also eventually also used to honor war dead.  So, the opening to apply the Supreme Court case is right there.  Plus, the state funds used for upkeep is smaller.  Nonetheless, the purpose and ongoing effects are different than a cross monument itself. 

OTOH, the majority opinion really didn't offer much to suggest an invitation to parse specific instances in a class of cases that "involve the use, for ceremonial, celebratory, or commemorative purposes, of words or symbols with religious association."  If the displays have some blatant discriminatory character that targets certain groups, an exception might be found.  As noted in the last entry, the general rule supporting felony disenfranchisement was not applied to a state law with a blatant racial purpose.  But, this was a small exception to the general rule.

BTW, the Supreme Court opinion helpfully classifies the various religious liberty cases into various categories. It also calls into question the application of the Lemon Test (including as channeled into the reasonable observer test, apparently)  in actual cases.  Doctrinal tests tend to be flexible as compared to general principles.  Fine enough.  And, even those are not applied totally literally. For instance, basically theistic endorsements of a certain caliber have been accepted though similar things even as state mottoes and the like would be questioned (Scalia himself noted this in oral argument) if we said things like "In Jesus We Trust."

How far to take this in this area is surely debatable -- as seen by the splits in the very case.  Ultimately, you will weigh various things in the context of the situation. And, a gigantic cross on public land that is used for Easter ceremonies to me seems problematic.  


* This arose recently regarding a border emergency aid bill when the Senate (final vote 84-8 though a 92-8 vote was referenced I cannot find) basically tied the hands of the House.  Leadership really wanted to put in a stronger response to address treatment of immigrants detained, which has received lots of "this is HORRIBLE" reactions. One particularly horrible image is a father and daughter face down dead while trying to cross. The Trump Administration's actions here are severely lacking, worsening a problem that was already a humanitarian crisis before him.

The votes weren't there. The "problem solving" Dems particularly didn't want to go too far. Thus, AOC and other more progressive Democrats cried foul.  Rightly so.  Only so much could be done with the Republicans in control of the Senate, but a good argument can be made that the Senate Democrats made it too easy for them.  A push to end the session for the summer recess and appeals to "compromise" when dead children are involved also rankles.

There is a limit here but within those limits more can be done.  One more thing.  That link to the vote was found by my own research. Article after f-ing article cited the greatly bipartisan Senate vote without linking to it or saying who voted against it.  It is bad enough that online media apparently found a way to stop workarounds to their paywalls more completely lately.  Why cannot they link to or cite such information?  Turns out SEVEN of the eight who didn't vote are Democrats who are running for POTUS. Why didn't any (including Sen. Kirsten Gillibrand) vote "no" on the record?  The eight that voted against the final vote are a few liberals and Lee and Paul. Useful information to cite, people.

Item: Florida Limits Recently Restored Voting Rights to Ex-Felons, Drawing Lawsuit

On November 6, 2018 Florida voters approved a constitutional amendment automatically restoring the right to vote to 1.4 million individuals with felony convictions in their past. The amendment restores the right to vote for people with felony convictions, except individuals convicted of murder or felony sexual offenses, once they have completed the terms of their sentence, including probation and parole. The amendment went into effect on January 8, 2019.
Over the years, one issue that I have been paying attention to is denial of voting rights because of conviction of a crime. Given the system in place, this in practice has a racial cast as well as one that burdens on class as well.  This would seem to have constitutional concerns, but except when blatantly so intended, the Supreme Court has not seen to deem it so.  An exception to a never used penalty in the second section of the Fourteenth Amendment ("other crime") was cited.  The dissent to me was correct, more so as applied in various cases.  See, e.g., John Oliver's piece on the arbitrariness of the process to restore voting rights in Florida.

A question posed to some Democratic presidential candidates at town halls referenced people still in prison.  Maine, Vermont and Puerto Rico (as well as many countries, international practice of interest to Justice Alito, as seen in his census opinion)  do allow that.  And, that would be fine with me, especially if there was some exception (crimes like public corruption to me is more suitable here really than violent felonies).  But, it is more realistic and of immediate concern to address those who served their time.  And, a period of "probation and parole" again adds a sort of compromise there.  A person might think once you are out of prison or after a year's time might be more appropriate.  And, if the probation period is too long, especially.

Advancement in this area is likely to come as in many ways via compromises. The Fifteenth Amendment was itself a compromise, some wanting to include other things (such as literacy or property) that have a discriminatory character. A federal poll tax amendment was eventually ratified with state poll taxes deemed unconstitutional under the Fourteenth Amendment.  Backdoor poll taxes continued, including what is cited in the first link -- Florida Republicans (with the governor in his signing statement deeming the popular referendum as "wrong" for going too far) required full payment of fines and court costs. Again, John Oliver had a segment on the breadth of such things, including arising from traffic offenses.  Race and class issues blatantly involved.

Voter identification laws in practice often have been shown to have this character given the costs involved.  It is conceivable to think of (though their necessity for electoral security would remain dubious) a system of free id that would net be beneficial, including an extended rollout with generous exceptions and workarounds (on site photo ids come to mind).  But, in practice, these things tend to be inequitable. It is especially problematic when elections are often close. Florida went Republican in 2000 by a minuscule fraction and something like one percent in 2016. 

The governor's signing statement is interesting (among other things).  It notes the "curious" fact that the measure only applied to voting, not to other civil rights such as  jury service or running for office (I might add RKBA).  But, that is understandable -- again, it was a compromise measure aimed to receive the most support, and voting rights should be the basic floor here.  Jury service itself is a form of voting, but the ballot box is the core.  And, even with the exceptions (overbroad ones as seen by looking at some sexual offender measures alone) left open various violent crimes. Yes. They too, after they serve their time, re-enter society as full citizens.  So said a supermajority by their vote.

The statement also notes that voting rights are restored without regard to the wishes of the victims.  That's an outrageous statement on a basic level. First off, how does one judge who "the victims" are in these cases?  The people who directly were harmed?  What of the spouses and children etc.?  And, what if the crime affects a broad range of people such as let's say poisoning a river, resulting in possibly thousands getting sick?  Do such people ever get some direct say (as compared to be representing by some parole board or such in charge of making the call) in restoration of civil liberties in these case?  No. It doesn't work that way.  The government prosecutes and the government determines the breadth of the penalty.

The statement also says that he will think about restoring other civil rights to offenders here. Which is fine (ha) -- the problem at issue is broad and the amendment (like multiple amendments to the federal Constitution) addressed a particularly blatant issue, leaving open other actions with more nuanced action.  As with state poll taxes, perhaps the Florida Constitution itself can be used to address other matters. For instance, the RKBA might wrongly be denied if a person serves their time for a bar fight or whatever and ten years later, though they have shown themselves as a good citizen, they are still denied the right to possess a firearm.  Not knowing the rules here, I cite this as a possibility. 

The interests here are not merely of a partisan nature. Florida is known generally to be a state full of (ahem) eccentrics who break the law, sometimes in serious ways.  But, once they serve their time, all should recognize the justice of allowing them to vote. And, the measure was supported by over sixty percent of the vote.  The current Republican controlled government might think this too generous.  They would be wrong.

Friday, June 28, 2019

Venus, Voting and Vale (Mets)

Only a few NYPL libraries have DVDs now, but Kingsbridge Library has a bunch. I enjoyed this Canadian GLBTQ (emphasis on the "T") friendly film. After noting it would have mattered in this month's key primary election, I see a ranked choice measure might be on the ballot soon. After ANOTHER blown game, got just amusing, this "put a fork in them" article might be right.

SCOTUS Watch: Final Orders

Here is a summary of the end of term orders, including taking DACA cases, a funding to religious schools and Bridgegate (might continue to narrow political corruption law) case as well as others. A second trimester procedure abortion case (Thomas concurs aiming for bigger game) not taken; count two cases still pending. Sotomayor with her occasional solo criminal justice dissent, including a section on the value of a strong appeals process including in non-capital cases. Summer usually has three days set aside to dispose of various matters.

Democratic Debates

For me, the first Democratic debates were mainly a time to snark and read snark online, but to the degree it mattered: Booker was combative, Warren was pretty good, Castro shone, O'Rourke looked unprepared, Buttigieg was decent, Harris slayed and Biden (who Harris targeted, especially on busing) looked rather bad. Various others should, along with "Beto," just go. Klobuchar and Gillibrand didn't move the needle. And, Chuck Todd was an ass.

We have the "tsk tsk" about debating busing, how unpopular it was etc., but BIDEN is the one who got us here both for his record and bringing up good times with segregationists. Doh! The spin is a broad group likes him, but the controversy is rather expected and he handled it lousy. He repeatedly does. People like me are strongly against him for a reason. And, repeatedly, there is a feeling he is kinda tired. Old. Sanders should go too but he is at this like a lively old radical full time, basically. Biden is basically in semi-retirement.

Thursday, June 27, 2019

SCOTUS Watch: Census/Gerrymandering

The tribal dispute first argued in November with more briefing asked for was held over; Stolen Seat Guy didn't take part, so it still might be decided 4-4.  We still have some important orders to hand down tomorrow, including abortion stuff.

The other case basically no one but the participants cared about involved a rule where unconscious drivers by law were deemed to have consented to blood draws.  A majority (with Breyer going along with Alito, again not really having a key "conservative special" to write for the Court this month) reached out to decide that "exigent circumstances" generally allows this.  SSG didn't think that was the question and would "DIG."  Sotomayor for the ladies thought so too but provided a full dissent.
The solution, he would suggest, lies in state courts, constitutional amendments, state redistricting commissions (which he has deemed unconstitutional in the past), Congress, and state legislatures, which is a tiny bit like putting the looters in charge of the looting problem.
Each side here said the matter was "narrow," but the other two cases were of some more importance.  Both are covered by Rick Hasen at Election Law Blog, Dahlia Lithwick has a thing to say over at Slate and so on.  Basically, Kavanaugh provides a fifth vote to firmly say partisan gerrymandering is a political question, both because it's something allowed and because there aren't clear standards for federal courts to handle it.  Let state courts (unless they find something wrong with their approach?), independent commissions (ideal if a state manages to have them and Roberts in a 5-4 opinion -- maybe it's different now? -- already thought there were constitutional problems with them) or maybe bills (sic) proposed in gerrymandered legislatures handle the situation.

Kagan dissented from the bench (her three such dissents were in election cases) noting, yeah, "As I relate what happened in those two States, ask yourself: Is this how American democracy is supposed to work?”  The basic problem here was that for years the liberals said partisan gerrymandering was a problem, Kennedy agreed in principle, but he never provided a fifth vote (he had one more shot last term) to a majority opinion. The opinion is a Kagan special; she helped craft some liberal wins, not this time.

[She dissented from the bench and it took a while. Of course, we did not see it.  This is wrong.  Oyez.com will release it some months down the road.]

Roberts denies there is a constitutional provision violated [as compared to one person, one vote?*]  but equal protection, First Amendment concerns and probably something else (right to vote?) can and has been cited.  As to prudence, I respect the concern up to a point, but the problem is rather egregious to say "not our problem, dude." Cf. Alito's concern in the trademark case: "At  a  time  when  free  speech  is  under  attack,  it  is  especially  important  for  this  Court  to  remain  firm  on  the  principle  that  the  First Amendment  does  not  tolerate  viewpoint  discrimination."  Let's see how those alternative methods work.

The census ruling, which gave various liberals angina the last few weeks worrying about how horrible it would be, was "okay for now." The headnotes suggests as much with various aspects of Roberts' opinion.  The opinion as a whole blessed the use of a citizen question in theory, but that it was done here in an illegitimate matter.  Chris Hayes cynically replied: "Come back and lie to us about your motives more convincingly, please.” Rick Hasen basically figures there is a decent chance this is fair enough.  The Trump crew have until October, it seems, to figure something out. 

As noted at that link, there is clear evidence (with someone who pops up in the partisan gerrymandering dissent too)  that the point of the census opinion is to advance Republican electoral ends.  Justice Alito in partial dissent is all "they call it racism, but a citizenship question is fine policy, just look at international experience and everything!"  Thomas (joined by the Trump guys -- this case again turning on two tainted seats)  is more "there is nothing to see here!"  Gorsuch not worrying about administrative agencies going amuck here. So, even Roberts' limited bowing to the obvious was too much for four of them.

Breyer for the liberals would avoid sending it back, holding it invalid on administrative law grounds now.  He notes the question clearly will inhibit a fair count, the very point of the census provision.  Doesn't say as much, but this appears to violate the Enumeration Clause as applied as well.  The partial dissent was fairly temperate, perhaps realizing they got the most one could hope for. No (cf. travel ban) Sotomayor dissent to call out the racism involved here.  But, this case might be back.

[The updated SCOTUSBlog entry helps clarify who joined what section and it turns out the liberals didn't join the Enumeration Clause section. My reading of Breyer's opinion doesn't suggest he directly says the question was used in away that violated that clause but that does leave it open.] 

Meanwhile, some more Internet links including a screen grab.


* To the degree the minimalism here clashes with racial discrimination, remember this is the guy who wrote Shelby v. Holder and while in the Reagan/Bush Administrations was no fan of a strong usage of judicial power in this area to enforce black voting rights. Also, there is going to be overlap -- partisan and racial gerrymanders tend to go hand and hand given party splits.  Toss in state courts, districting battles will still be around.

The liberal judicial minimalism argument is that the result is ideal, putting aside concerns (perhaps) that Roberts et. al. won't be consistent.  But, as noted, judges will still be involved. Plus, even if many of the federal judges will be Republican nominees, they all won't be, and even so, there will be various cases the facts are clear.  The constitutional rule will also apply to state actors, including providing pressure to encourage independent commissions and so forth.

At times, judges might only select certain types of gerrymandering (see Thomas in his census opinion suggesting the district judge was biased for finding problems), but net, what will that give you?  A narrow number of cases.  Some simply will deny evenhandedly.  There still are some liberal judges and friendly appellate courts and we can also play the long game. 

One conservative wondered what liberals were concerned about since both sides gerrymander. Rick Hasen (Election Law Blog) replied: "It has become a partisan issue because Democrats have looked for ways to end the practice without unilateral disarmament (as in H.R. 1) but Republicans have looked for ways to keep doing it. Only Rs supporting redistricting reform in places like CA, where Dems have leg lock."  Maybe election reformists know what they are talking about?

(Also: "It is easier for the more rural and exurban party to engineer extreme gerrymanders, so the Court’s abdication will overwhelmingly favor the party of all five members of the majority.")

Women's Human Rights and Migration: Sex-Selective Abortion Laws in the United States and India

This was cited in a discussion of the ruling; the author herself discussed things here. The author argues human rights should be applied within the context of one's society, sex-specific abortions [can be determined early] not a problem in the U.S. (the few times it occurs, it often is gender balancing, one boy/one girl) but causing harms to women in India. Starts with some in the weeds legal theory but then deals with the facts on the ground in a more interesting fashion. Also, notes sex selection comes pre-pregnancy, including sperm sorting!

Wednesday, June 26, 2019

SCOTUS Watch: Agency Deference

A divided Supreme Court issued a major opinion on administrative law today. The justices declined to overrule a longstanding line of cases instructing courts to defer to an agency’s interpretation of its own regulation – a doctrine sometimes known as “Auer deference.” But in an opinion by Justice Elena Kagan, the court made clear that the doctrine has limits, and it will not apply in every scenario in which an agency is interpreting its own rules.
I don't know how "shocking" this opinion is at the end of the day.

As Roberts notes in his concurrence (unlike the other conservatives, he concurred with the opinion itself if not certain sections; the rest concurred in judgment), the subject at hand is different from (to quote SCOTUSBlog again) "Chevron deference, which generally requires courts to defer to an agency’s interpretation of ambiguous statutes enacted by Congress."  Justice Kagan summarized and tinkered with the doctrine, “not quite so tame as some might hope, but not nearly so menacing as they might fear.”  I personally thought retaining the doctrine in a somewhat weaker form was possible.

Kavanaugh (with Alito) is likely right to agree with Roberts that at the end of the day there is not too much distance between Kagan and Gorsuch's positions.  If a lower court judge wants to show less deference, it is likely that in most cases they probably can find a reason.  But, Kagan's opinion (partially a plurality -- more can be done to clarify this) probably still has some bite, including the discussion on the importance of deference here where agencies are deciding various very technical policy questions.  As the "shocking" article notes: "the outcome in Kisor suggests that there is a meaningful distance between Roberts and the more nihilistic members of the court’s conservative majority."

Besides, Kagan is a good wordsmith and it is pleasure to read the opinion.  Justice Alito has his own charms, repeatedly in high snark.  Dissenting in the Gorsuch's (Stolen Seat) opinion [Breyer concurred on narrower grounds]: "Today’s decision is based in part on an opinion that is unpardonably vague and suggestive in dangerous ways." Given Gorsuch is so concerned about vagueness, that might have left a mark. Also, says Gorsuch is not "originalist" and references a bad "trip."*  He challenges Gorsuch's history in the wine regulation case as well, including at one point basically asking him "really?"  Alito writes for a 7-2 Court (Thomas also dissented), leading one to wonder how he suddenly became Mr. Unity.

It was noted that Alito did not have many opinions so that he would be busy in June, but so far, his  opinions for the Court lacked much "conservative special"  (like Hobby Lobby).  The fact Gorsuch (finding another time to split with the other tainted Trumpite) joined the liberals again today should not lead one to forget he is not TOO big of a friend of criminal defendants.  As to his concern for "liberty" in general, see his votes in the travel ban case.   To toss it in there, a lawyer who will work on a podcast with the author of that article wrote this good article on women lawyers using social media.  One more opinion day.


* Justice Alito's dissent is rather strong because he thinks Gorsuch has bigger game on what constitutional rules are required for supervised release, which covers a lot of people. As a general rule, when a matter is in doubt, I support the due process friendly opinion.  But, unsure how wrong Alito is though Breyer's opinion probably is correct. Do find Alito's repeated appeals to originalism a bit much except as good rejoinder to Gorsuch laying it on too thick.  Which seems to annoy Alito too at times.

Gorsuch (like Kavanaugh in the Flowers peremptory challenge opinion, the one Mr. Liberty dissented from) has a paean to juries.  Something not around much in the day of plea bargains though history suggests such worship is a bit over the top in general.  Like when I listen to him in oral argument, you get the idea Gorsuch is really into his role.  Just loves fighting the good fight, in his chuckling way, in a stolen seat.  Grr. 

Tuesday, June 25, 2019

Primary Day: Tiffany Cabán

A new law simplifies NY primaries (one day in June for both federal/state) but it has yet to really promote turnout if the key race where an AOC type upstart appears to have won (after a long term incumbent died in office) as Queens prosecutor (more people than 15 states) is suggestive. Like 10% of registered voters took part, which along with no instant run-off voting (she barely won a plurality; the third place candidate got over 10% and was endorsed by police unions and such) very well might have helped the winner here. No Bronx races, but kept a close look at her returns online as she kept on holding on to a thin lead. Reform possible.

Same Old Mets Alert (LolMets)

After the manager and Vargas were fined 10K (notable if less so for guy making 8M a year; really should be suspended for a game/start) ... and it took to press conferences for Callaway to actually apologize, the Mets blew it again. It was close, but after another mostly reliable bullpen piece gave up a lead, they stopped scoring. After the spot starter fell quickly last time, a good five innings arguably was enough. Got greedy and it burned ya.

Monday, June 24, 2019

SCOTUS Watch: The "FUCT" you say ...

And Also: With DeGrom starting, it looked like the Mets might win three of four vs. one of the teams basically among the beatable non-Dodgers leaders in the NL. But, usually reliable Lugo had a bad day and Callaway (and Vargas) acted like clowns. The inability to win that extra game helps explain the "they are done" talk even if stands-wise that isn't really true given the parity in the league as a whole. Same old injury issues helps deja vu.

And then there were eight.

First orders.  The big news there is probably taking a trio of "risk corridor" cases, a result of one of many conservative moves to weaken ACA.  One can wade into the details at the link, but looks like the challengers have a good argument.  Long term, the way out here is for the Democrats to win in 2020 and having legislation to deal with the situation.  Health insurance policy is not a one moment move.  It requires ongoing action and follow-up legislation (including budgets) to deal with the situation. The inability thanks to McCain and the two women senators to severely weak ACA when Republicans had united government underlines the basic support of that legislation's goals. But, we are still in flux.

The first link provides a summary of other orders. One notable one, at least given my own concerns: "NPR argued that the complete version of the briefs should be available to the public, and today the justices agreed."  Actions on abortion and DACA to come.  Likewise, two of the big opinions (as expected) were not handed down.  I would think there will be two more days (eight opinions in one day is unlikely) with Friday being another order day.  Maybe, the orders will be separated.  Anyway, to toss it in there, Kagan joined Alito's opinion denying punitive damages in a maritime case, the other liberals dissented. Another safe case for Alito.  He's getting in a lot of history these days with WWI crosses, 17th Century double jeopardy and now the history of maritime law.

Gorsuch (Stolen Seat Guy) had two opinions, basically being the swing guy today, though the liberals in one went along with him in part.  First, in another split with Kavanaugh (Rapey Partisan Liar Guy) he found a federal firearms regulation void for vagueness (this would be the second time in a week the liberals in a fashion protected gun rights*).  As noted there, if we recall his strong dissent last week in the delegation case, it suggests a certain strong consistent wariness about governmental power.  OTOH, recall he went along without comment in the travel ban case.  So.

Yes, his concerns are somewhat non-complete, but it does add complexity to the divisions on this Court.  The other opinion, with the liberals (minus Kagan) only joining in part this time,  blocks a FOIA request by a newspaper regarding SNAP related data.  I saw this case pop up in orders repeatedly, so it appears some justices were particularly interested.  The liberals would send the case back to determine if the material is truly protected under the rules.  Of mild interest, but might be of some concern. More here (including on "wooden" textual analysis); this is important in part because the overall issue is a matter of public concern.

The result in the final case -- the FUCT trademark ruling -- is expected. The only thing really in play was the possible breadth.  Kagan (helping to clarify an earlier opinion with two wings) bluntly deemed not allowing the mark as immoral or scandalous as viewpoint discrimination in a short opinion. Alito went along, flagging this as a time when free speech is being threatened (multiple people think this is a subtweet to college campus protests).** Roberts rather decide things more narrowly as does Breyer and Sotomayor, all (with Breyer joining Sotomayor's most extensive remarks).

[To add one more thing, the big picture issue here basically turns on the point of trademarks.  They are in place to help inform people a commercial item is tied to a certain individual or company. There repeatedly is some significant expressive content here. "FUCT," e.g., is supposed to send a certain message. Given traditional free speech rules, including unconstitutional conditions, viewpoint discrimination here is dubious.  This isn't government speech as such.  They don't "endorse" a Nike trademark.  It is a government benefit, but one -- like marriage or whatever -- that should be supplied neutrally.]

What this will amount to long term maybe is somewhat unclear -- the law at issue was around since the 1940s and only recently was this sort of thing deemed unconstitutional -- but it would not surprise if more commercial related regulations will fall by the way-side. At any rate, expect some people to submit claims for various offensive sounding trademarks.  More discussion of these cases can or eventually will be found at SCOTUBlog, Take Care and other such places.  More opinions on Wednesday.


*  Reading Kavanaugh's dissent, the point is even more striking. We have a concern an important gun regulation, necessary for public safety, is wrongly being struck down.  It's a strong dissent. I will remain agnostic on how strong it is on the merits.  But, it the sort of thing that can split ordinary ideological lines. Also, as Leah Litman notes in her discussions at the two blogs cited, the case is best seen as fitting into a wider whole of recent case law.

**  Justice Alito's concurrence warrants further comment:
Viewpoint discrimination  is  poison  to  a  free  society.  But  in  many countries  with  constitutions  or  legal  traditions  that  claim to protect freedom of speech, serious viewpoint discrimination is now tolerated, and such discrimination has become increasingly  prevalent  in  this  country.  At  a  time  when  free  speech  is  under  attack,  it  is  especially  important  for  this  Court  to  remain  firm  on  the  principle  that  the  First Amendment  does  not  tolerate  viewpoint  discrimination.  We reaffirm that principle today.
Tad strong there. He also shows, especially counting noses, a more narrowly drawn statute might be acceptable to a majority:
Our decision does not prevent Congress from adopting a more carefully focused statute that precludes the registration of marks containing vulgar terms that play no real part in the expression of ideas. The particular mark in question in this case could be denied registration under such a statute. The term suggested by that mark is not needed to express any idea and, in fact, as commonly used today, generally signifies nothing except emotion and a severely limited vocabulary.
A non-absolutist stance on free speech was the subject of one of Elena Kagan's few works of scholarship.  But, how sound is Alito's comment? The trivialization of the word "fuck" here  is directly challenged by a major First Amendment landmark (Cohen v. California, "fuck the draft" case). What exactly is a "real" part of the expression of ideas?  The concern of Breyer during oral argument is more racial epithet though since the last case in this area involved "the Slants," not sure where to take that. 

Sunday, June 23, 2019

Last Bridesmaid

The male love interest in this pleasant Hallmark film, Paul Campbell, is a familiar face. He favors flippant types, sometimes laying it on too thick. Pretty balanced here and the film has a nice message of finding what makes you happy while the love between the two develops. A few good camera/reaction shots that show how he feels for her. A late dramatic moment is believably handled -- he has a reason to be upset. Both leads also have done other things.

Drive Angry

Another good late nite pick. Nicholas Cage has played off kilter characters in various films, some pretty good trash fun. This would be one with AH showing some great kick ass moves too. Some good support. And, nice twist on the finding your bf fucking someone scene.

Saturday, June 22, 2019

After Hours

A sequel in the Emma Marx (sort of a "B" more explicit version of Fifty Shades) series where she herself mentors someone was on again this week. Not bad addition to the late nite cable soft porn cycle. Some style and sexiness. Anatomy of Sex, with a handful of sex, I mean set pieces (whatever) is amusing too. The two guys (doctor and patient) are so skeevy looking. The nurses all have a porn star look (especially the eyelashes and makeup) but not quite ridiculous so. I do prefer a more natural look (one series had a sexy episode, e.g., about a couple trying to conceive and the woman being normal looking to me added to the experience). Meanwhile, on Amazon Prime, Moments of Clarity was cute.

ETA: Sven movie this week was Beast From 20,000 Fathoms, which was fun though main monster stuff at the end seemed a tad rushed (think it was somewhat edited from what I can tell from summaries online). A few familiar faces including Roscoe from the Dukes.

Friday, June 21, 2019

SCOTUS Watch: Another Precedent Overturned

We are approaching the end of the first term of the Kavanaugh Court and perhaps it is apt that we have yet another woman (providing in depth details) accusing Trump of rape.  Note that Trump's reply, other than denying he met a woman for which there is a picture in the accounts showing just that, said that those who make such false allegations should "pay dearly."  We have been down this road before, including with the main allegation against Brett Kavanaugh (his statement referenced another woman, which sorta implies -- parsing the guy is somewhat dubious -- he finds Ford's claims more credible).  Republicans want this guy re-elected.

Kavanaugh was especially dubious during oral argument about the use of peremptory strikes in the Flowers case, so it is not surprising he wrote the opinion.  One that is pretty good though some flagged concerns that emphasis it is a uniquely bad case (Alito concurred for that very reason) will mean "run of the mill" racism will be ignored. The opinion (which repeatedly cites the race of people involved, this not being a conservative affirmative case where we are not supposed to see race) does have various statements of principle that will be helpful.  This including how jury service is next to voting the key way citizens participate in the democratic process. (I would toss in militia duty, but that isn't really a thing any more, the 2A now deemed an individual right).

Justice Thomas continues his Thomas on steroids term by writing a forty page dissent (longer than the majority) that has some charming aspects like yet again emotionally stating the details of the crime (due process rights don't disappear in such cases and there serious claims that the prosecution is flawed on multiple grounds including innocence).  He also suggests the Court is unfairly targeting the South.  And, add it to the list, Thomas thinks the thirty year old precedent Batson v. Kentucky probably should be tossed too.  Justice Gorsuch, his join somewhat of a surprise, did not join that section.  Thomas does note that Flowers can be prosecuted again. Seventh time the charm?

Justice Alito joined by Thomas dissented in 7-2 ruling, written by Breyer (there are 12 cases left, most of them will be written by non-Thomas conservatives.  The case held that the federal government under the law at issue "must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.”  While the Trump Administration continues to plan to up the targeting of migrant families, such cases the provide some protection for undocumented immigrants are of mild relief.  This is also the sort of case ignored by some people when the complain about the Supreme Court not caring about gun owners.  OTOH, perhaps the class here aren't "the people" cited by the Second Amendment.

Justice Sotomayor wrote what seems to my admittedly uneducated eye a sort of pinprick opinion that limits (as noted by the concurrence in a limited fashion) the ability to tax trust income.  Roberts wrote the second important opinion of the day, a 5-4 job with a strong Kagan dissent (with various reactions focused on stare decisis) overturning a 1980s opinion limiting the right to sue alleged Taking Clause claims in federal court.  A note: be careful about being too critical about overturning precedent because the worm is (though it might be a while) turn.  Down the road, and I might be commenting in whatever venue is around then, we might be trying to overturn the excesses of the Robert Court. 

Now, maybe there is a good case to be made, but the facts suggest the concern of the liberals -- it involved a regulation regarding access to cemeteries during daylight hours.  There is even some doubt if there is actually people buried on the property ("allegedly") in question.  Since property rights include the right of exclusion, this brought a takings claim. This is not quite the infamous Kelo case where someone's home was seized (with compensation) for an ultimately failed economic revival plan.  Thus, one conservative on Twitter was excited about this attack on "bureaucrats."  That is, agents of the people who carry out democratically passed policy.

The dissent argues that longstanding law holds that there is no violation of the Takings Clause immediately at the seizure of the property, but only after the end of a reasonable process in place to compensate the individual. Given the myriad of possible claims, helped by expansions of what "takings" means in recent decades, I can see the problems. Some picayune local regulation of this sort will be a federal case with various nuanced issues of state law arising.  As noted by Kagan, in an opinion in high snark, the result threatens "judicial federalism," which as usual is a selective thing. 

(Thomas, e.g., complained in his dissent the Flowers case was an outlier not apt for federal review, but then though it obvious they should deal with some minor abortion regulation they deemed a lower court handled wrongly. And, was okay with them summarily overturning it without full review though such laws have nuanced issues that might very well so warrant.) 

Anyway, to repeat myself, opinion announcements should be televised or at least transcripts and audio should be available at its website.  We are left to news coverage and (eventually) Oyez.com.

Thursday, June 20, 2019

Marion Wilson Execution

And Also: The Enchanted Hour: The Miraculous Power of Reading Aloud in the Age of Distraction is an interesting argument (by a children's book reviewer) for the practice.  Though it does not only benefit younger children, the benefit of engaged (not just audiobooks) reading in respect to them is the main focus. 

I thought we were going to get a break from executions, but Marion Wilson's execution (over twenty years after the crime) was scheduled by Georgia (second of year). He has the dubious honor to be the 1500th execution since the death penalty was rebooted in the 1970s. One summary of the crime:
It was the night of March 28, 1996. Donovan Corey Parks [black] had left the home he shared with his father and brother in Milledgeville, Georgia, to buy cat food. The 24-year-old worked full-time as a prison guard, but that day, he’d done a shift at the Winn-Dixie where he worked to make ends meet. As he exited the local Walmart, Parks was approached by 19-year-old Wilson and 18-year-old Robert Earl Butts Jr. Witnesses said Butts asked if Parks could give them a lift. “And the victim, being the nice guy he was, said, “Sure, I’ll give you a ride,” then-District Attorney Fred Bright told jurors in 1997. The pair had a sawed-off shotgun. Soon after that, Parks was dead from a blast to the head.
The article has some filler but the basic idea is that we don't know who pulled the trigger, he has a horrible childhood, questionable defense and others who committed similar crimes did not get a death sentence. The usual arbitrariness even among a case that normally seems straightforward. Note too he would overlap with recent claims to draw the line at 21. And, we have another long time on death row scenario.  Usual suspects.

The ill-named Robert Earl Butts Jr. has already been executed.  Looking at the final challenges, key is the argument that there is no clear evidence that Wilson was the one who specifically murdered Parks and the prosecutor lied when making the case in sentencing phase.  Thus, it is not clear the death sentence met the rules of due process in regard to properly determining if Wilson is one of the rare people who should be sentenced to die.  The execution was scheduled at 7PM and the the Supreme Court only handed down (without recorded dissents) a denial after 9PM.

Given the limited number of executions and the importance of the matter, I continue to think it would be helpful to summarize the final arguments and say why they were rejected.  It would be educational at least for the justices opposing the death penalty or repeatedly concerned (Sotomayor) to rotate here.  Realize this might be repetitive but see value in it. 

SCOTUS Watch: Crosses and Delegation etc.

And Also: I basically re-watched The Perfect Bride and enjoyed it again. It is pleasant, good cast and characterizations and has something to say about moving on etc. I would like one of these films to have a sequel where the putative love interest gets her (or his) own chance for happiness. Louisa On the Front Lines is a good book that focuses (though being so short, not only) about the author's time as a nurse during the Civil War. Nice book that almost seems like it is geared for young adult readers. But, many adults also would favor the writing style.

So we have the second of three opinion days scheduled for this week after the first two weeks only had one each. Four more down.  The major news involves delegation (to be continued) and public religious displays (somewhat expected limited opinion though perhaps not that part where a cynical progressive commentator finds various things -- up to a point -- to like about it).  You can also find a link there discussing the first opinion.
The specific issue in Gundy involves the Sex Offender Registration and Notification Act (SORNA), a 2006 federal law requiring certain sex offenders to register in the state where they reside. SORNA automatically imposes this registration requirement on sex offenders convicted after it was enacted, but it delegates to the attorney general the task of determining whether people who offended before SORNA became law must register.
Kagan for the liberals starts off by noting that there simply is no real dispute here -- the lower courts along with everyone else found this a legitimate delegation, the case was granted for review anyway (one can guess the four votes) and yet again we are going to uphold it.  It's notable that the references to the "dissent" was not to Gorsuch (in high Gorsuch form) who was joined not only by Thomas but Chief Justice Roberts (Kavanaugh not involved), but an earlier case.  It is as if she knows this is a "to be continued" since Alito only concurred (the very first time he was the deciding vote in such a situation) because he wanted a clean case to challenge the doctrine.  The modern regulatory state not being pin-pricked by lower courts is at stake here and she basically says so.

[After the morning business, the Supreme Court took a set of cases dealing with an Appointment Clause matter that could upend the work of the oversight board tasked with pulling Puerto Rico out of its record bankruptcy.] 

The other major ruling was also something of a limited affair though nose counting would suggest Lemon v. Kurtzman, the old 1970s Establishment Clause test is no longer good law.  This might involve going a bit more than Alito's opinion bluntly says and counting concurring justices (or whatever Gorsuch is) but is fairly realistic.  OTOH, it's unclear what exactly changes really.  Alito's opinion itself to me applies a sort of endorsement analysis without bluntly saying so.  The cross is a Christian symbol but is not being used to promote Christianity etc.  Justice Breyer joins in full while Kagan joins mostly except for some of the blunt anti-Lemon test language.  Only RBG (from the bench) and Sotomayor dissented. This is fairly unsurprising though at oral argument Kagan dissenting was possible. One wonders if the majority was tempered a bit to assure her and Breyer's votes.

(To be clear, for now, it is just tossed for longstanding displays. But, it amounts to a waiting game and how much of it is left for Roberts.  Alito surely will go as far as Roberts is willing to go.  Kavanaugh and Gorsuch already has basically buried it.) 

The opinion along with Kavanaugh and Breyer's concurrences emphasize the importance of a rule cited by the majority -- “an honest endeavor to achieve inclusivity and nondiscrimination."  Thomas goes his usual own way, tossing a footnote (3) that lays it on thick suggesting a strong separtist approach is really anti-Catholic. Gorsuch would deny standing in these sort of display cases where the injury is symbolic in nature.  He also is not too gung ho about going along with Alito's Breyer-esque grandfathering approach about old symbols.  How the Supreme Court will actually treat new (how new?) possible threats to the Establishment Clause is unclear. Another "to be continued."

Some found this litigation, though there was success in the lower courts and a gigantic cross with a big price tag of continual upkeep seems rather blatant, misguided.  This is somewhat understandable but there is value for the interest groups that bring such cases all the same.  Also, the net result is probably the best one could hope for.  Finally, I'm sympathetic with the majority up to a point, but think the dissent is correct.  Something like transferring it to private hands or putting up other religious symbols to honor the war dead of others (as RBG notes, headstones at military cemeteries honor personal beliefs, not one size fits all)  provide an alternative path.  This is not about keeping religious symbols out of the public square as much as not favoring one.  Also, history and tradition is cited as an important thing here, but who has the best reading of that?

Two other cases were disposed of -- one was a punt though other than Roberts, the conservatives would have handled it somewhat differently.  Another one in the minds of Thomas/Gorsuch/Kagan (the Court now is likely to have if anything more mixed results)  should have been one but Sotomayor for the rest went another way.  The link can be followed for the details, but again, doesn't seem that notable. Overall, the name of the game this term has been minimalism, perhaps in part with a look to the political branches and the public.  How will that work with the census case?

(I will deal with the death penalty case separately.) 

Wednesday, June 19, 2019

Some Films

The Car was a Svengoolie movie a few weeks back, but was not able to see it so borrowed it from the library. There was a sequel just released (familiar face Ronnie Cox pops up again, but in a different role) around thirty years later.  (There was also a sequel just released to I Spit on Your Grave ... clearly a must see.)  The original was critically panned, but as a whole, I liked it.  The acting, pacing and sense of dread all work pretty well. 

It involves a killer car that pops up suddenly and starts killing people. The film is rather dark for a midnight classic.  For instance, after a couple of college aged fresh faced kids are killed while riding bikes, a familiar face (hey! it's the Crazy Like the Fox son) sees a wife being smacked around by her husband.  Who never gets his comeuppance.  The old sheriff is killed, but it doesn't stop there -- multiple police officers are killed.  The spunky school teacher/love interest of Josh Brolin?  She's killed too!  They finally do beat the car but they use some explosives to bury it in some rocks. The end credits suggest "he" continues on.  Well, that's typical.
A Twitter thread recently covered films where women murder men. It was curious to me that Practical Magic was cited since to me it was a weak Alice Hoffman adaption. A few praised this French film though there is some English spoken (didn't realize it, but says here that the woman is an American socialite), which is a rape revenge flick.  One charm is that there isn't that much exploitation -- the rape is largely off screen and the nudity we see (including a quick shot, as usual notable, of a penis) is basically all of one guy. But, overall, not sure how much the film changes usually tropes (female revenge films are a thing too) as a whole. 

Can see why people like it -- she is a badass -- but had mixed feelings myself.  It took a bit too long to get her into the desert and she did seem to be portrayed as something of a tease, including when her boyfriend's (she is his mistress) two friends come over. Perhaps, this is where some woman says that is just my gloss, and what am I doing, justifying the rape? Well, no, but it does seem she was doing that.  Anyway, after the rape (one of the guys walks in when it is about to happen, we get a close shot of him chewing some food [ewww] and he walks out and turns the t.v. up to cover her screaming), she refuses to be bribed. And, runs into the desert. Socialite done; now she is action girl.

Then, she survives some fall off a cliff [her boyfriend pushes her off; this is where the guy who does the rape comes off as not the worse guy] where she is impaled and is able to go on the whole way (ditto the final conflict, after the guy is shot).  Okay, so we can use some poetic license, but that was a bit ridiculous.  Plus, to quote Wikipedia, this was cool: "hides in a cave and uses the peyote to numb herself before removing the branch and cauterizing the wound with an aluminum beer can, branding herself with the beer's phoenix logo."  You want to see this woman again.

The movie has some of the usual tropes. The guys repeatedly, even after one was killed for this very reason, separate.  This makes it easier for her, though not too easy (e.g., a piece of her ear was shot off).  A bit was made to show she isn't just you know a former military special forces person (though she knows how to load a rifle, she is thrown backward the first time she shoots one ... still, it all comes off as a bit of a fantasy, when other revenge flicks didn't lay that on as thick).  But, the woman was impaled on a stick and is trekking around in a way even someone in good shape would find rather taxing.  Anyways.  We have the usual final obligatory conflict that is drawn out, which I found a tad annoying too. 
Last Saturday on Svengoolie was the classic The Attack of the 50 Foot Woman, which was fun (some of these Svengoolie movies are somewhat dull) though we see very little of the actual woman (besides a big hand, she comes in the finale via some cheap special effects).  The Hallmark movie, Love Takes Two was enjoyable too (it also actually had African-American leads; these films usually toss in a POC as a friend or something).  The romance was fairly low key and we had something that occurs at times in these films -- a couple decides, in a friendly fashion, they aren't meant to be in particular because they have different goals in life.

One or more might be forthcoming. 

Monday, June 17, 2019

SCOTUS Watch: Liberals Have Pretty Good Day

And Also: I did not see the movie yet, but the book Welcome to Marwencol (sic) was very good though it doesn't go into too much detail about the events.  (The movie adds more details.) A man with a drinking problem is brutally attacked, losing his memory in the process. Having artistic talent in his past life, he sets up a fictional WWII alternative world using models.  The book provides a lot of photos.

The Supreme Court had twenty-four opinions left. It now has twenty.  Several important cases remain and one additional day (Thursday) so far was added to deal with them all.  (Toss in next Monday as a scheduled day.)  This back-loading is bad policy as is not providing even audio or transcripts of order/opinion days.  We are left to wait some months for Oyez.com to release them and rely on media reports.

First the orders.  Basically eight pages of nothing. A Masterpiece Cakeshop related case regarding the wedding cases was sent back to apply that precedent.  SCOTUS dealing with the breadth of the ruling post-Kennedy will wait for another day.  Among the mix of cases not taken was one regarding the NY ban on "gravity knives," which has been recently reversed.  The challenge was not on Second Amendment grounds, but vagueness, regarding how one determines if a knife is covered.  Various big issues pending.  Later in the day, an order was dropped to dispose of a case related to the racial gerrymandering matter.

Opinions.  Some interesting line-ups today but we started with a  standard 5-4 one in which the Supreme Court ruled that a private nonprofit corporation that runs a public-access TV channel is not a state actor and therefore cannot be sued for violating the First Amendment.  The channel airs among other things Gay USA, which I have watched for some time now, if mostly on different venues.  Don't know how important the matter is really but inclined to agree with Sotomayor's dissent.

After one tainted Trump judge (sic) handed down an opinion in a low stress case, it was time for the other.  Gorsuch (with Kavanaugh and Thomas in full; the women justices in result) upheld the power of a state uranium prohibition.  RBG thought he shouldn't have dwelt as much on questions of motive (though this was a major issue during oral argument) and provided a sort of alternative majority opinion.  Roberts (with Alito and Breyer -- who had a bad day, only joining the majority in one case) argued the majority was confused.  Net effect doesn't appear to be much.
"[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb..."
Justice Alito has a lot of cases left, but don't really mind him having the one upholding the rule that an "offence" for double jeopardy purposes can be the same action if two different sovereigns (state/federal) are involved.  Puerto Rico per an earlier case is not a different sovereign (Breyer/Sotomayor disagreed). I'm sympathetic with RBG (Gorsuch agreed, more pretentiously) arguing the the old rule is unjustified. But, stare decisis as well as really the limited reach in practice (which can work both ways; e.g., a violation of civil rights and an assault might be two separate crimes) does suggest overturning the rule on constitutional grounds is dubious.  Starting on a clean slate, I might think otherwise.  But, I can see arguments both ways.

[ETA: The case is also a close one because it is actually about both the state and federal government relying on a felon gun possession charge, if each to protect their own interests. This wasn't like someone shooting a mailman, let's say, and one is a state assault charge, the other  protecting the mails.  Again, it is unclear how much would really change if this opinion went the other way.  This helps both sides' position in a fashion.]

Justice Thomas seemed to lean the other way but said he determined history does not warrant that.  He did toss a gratuitous comment suggesting RBG was relying on her personal judgment of justice, not a reasonable alternative interpretation of all the evidence.  Gorsuch lays it on thick, including about governments over and over trying to convict until they can win.  This wasn't such a case.  A state prosecuted a felony gun possession and the federal govenrment (once) felt the punishment obtained was not enough to advance its own federal interests.  Something of a close case but one can see it being easier some other time.  Advancing democratically passed public policy is one way to promote "individual liberty" too.  This isn't just about federalism.

(Some liberals were concerned an opposite result would harm attempts to have a state backstop to address Trump and his crew in part if Trump pardoned Manafort or the like. Before now, said liberals might find RBG's position copacetic. It seems fairly unclear how much a ruling the other way will have affected things. For instance, even if pardons come, there probably will still be state crimes that don't overlap to prosecute.  These people committed enough crimes to go a long way there.) 

RBG had no dissenting jabot on today, one sign it was going to be an okay day.  In fact, she had the fourth and final case, the liberals (except for Breyer) and Thomas and Gorsuch providing a curious 5-4 majority to punt in the Virginia racial gerrymandering case on standing grounds. The net result helps the Democrats in a key election cycle later this year.  Alito's dissent might be convincing and one can see why Breyer would agree with him even if they split on the merits.  Why the other conservatives split is unclear and might have to wait for when the other gerrymander cases come down.  Might be a bad sign but who knows.

ETA: I read the opinion and it has two parts. The first part reasonably notes that Virginia is not a state that allows one party of a legislative body to represent the state's interests in court.  The second argues that it also does not have standing for constitutional purposes merely because a redistricting might change the membership with resulting policy changes. Something like changing the size of the body might be different.

The dissent reasonably challenges this though perhaps there are not precedents clearly on point.  Also, there is an idea that the justices wanted a way to avoid dealing with the merits and Breyer could dissent since there was enough to do so (of mixed ideology too!) without him.  Given his pragmatic tendencies, he might act differently if he was the fifth vote or something. 

Sunday, June 16, 2019

On-Going Chinese Feminist Activism Panel

I happened upon an unedited proof version of Betraying Big Brother about feminist activists in China, the author's earlier book discussing the "leftover women" (professional, educated, urban women, who allegedly should be worrying about marriage and having a child). The conservative authoritarian mindset feels a bit familiar these days. But, it is good on its own, a view into another culture and young women (including GLBT) fighting for equal justice and also finding their place in the world.
On Friday, she moderated a panel ("On-Going Chinese Feminist Activism") with three of the women covered in the first book, including the middle one in the cover photo (women in blood splashed wedding dresses, protesting domestic violence).  The book highlighted the "feminist five" (the picure can be found at the link)  and "Giant Rabbit" also was among the women that contributed here.  Her husband, a labor activist, was arrested this year and she runs each day as a means of protest and sending the message.  Her presence was apparently on the downlo since we were told not to take pictures or reference her on social media.  The third had the killer cat (since the government didn't want humans) anti-harassment shirt in a promotion photo of the event.

I tried to go to a few more events this year -- criminal justice, religious liberty, book talks, a Gillibrand rally and so forth -- and this one (free though they had a donation box) was interesting as well.  It was interesting, e.g., to have the first speaker give her presentation in Chinese (the audience was largely Asian women, a few Asian men and a few white people; it was scheduled to start 6:30 and like no one way there when I got there not much earlier -- um am I the right place? ... but it was a decent if smallish turnout)  with a translator on board. Thus, much of the audience laughed at some of her remarks before I knew what she said.

Took some rough notes.  The first presentation noted that the feminists in China used their body as means to promote their message in large part because it is cheap.  She noted that some challenged the idea that such "performance art" was even a form of "art" at all.  She spoke of the work, mobilizing and trouble-making involved.  The body is both fragile but also strong.  She referenced one means used to promote the cause: an armpit hair competition.  Both it and the feminist movement always was growing and thriving.

The second presentation focused on the #MeToo Movement in China.  She spoke of the over year attempt to have an authorized anti-harassment protest, including public posters and the like.  The government didn't want them to be "too scary" or have human photos. Ultimately, Chinese feminists had various public demonstrations, including at major pubic transportation locations.  She also spoke about efforts to deal with sexual harassment and abuse at universities (more than one major target was cited; the book also covers this).  She spoke of there being no leaders, just grassroots.  She spoke in English, if a bit roughly at times.

The third speaker also spoke in English, and though she joked that since this was her first time giving a presentation we should consider her like 20x better than she seems, her English was pretty good.  Each woman had a sense of humor, which helps most things, but she had the lightest touch and is pretty cute. One person on Twitter compared her to AOC.  Her presentation focused on labor rights, mixed with some feminism (in one effort involving sanitation workers, like 80% involvement was women, but they were not in the first photo). Recall her husband is a labor activist in prison. She spoke about the importance of telling stories and showing the humanity of the workers.

Each gave a presentation with a slideshow (around a hour plus) and then there was questions (after over a half hour, I left -- at 9).  Deeply respect what they are doing (the one in particular was imprisoned and the book covers multiple means of harassment by the government) and again the whole thing feels familiar with the #MeToo movement here as well.  It was nice to see such activists in person along with the person behind the book and Twitter feed.  

Friday, June 14, 2019

Flag Day

(Note: Two familiar names worked on the case -- the 1A scholar Zechariah Chafee and future justice Abe Fortas, also known for his work on Gideon v. Wainwright, the counsel for the poor case.)
There is no doubt that, in connection with the pledges, the flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind. Causes and nations, political parties, lodges and ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner, a color or design. The State announces rank, function, and authority through crowns and maces, uniforms and black robes; the church speaks through the Cross, the Crucifix, the altar and shrine, and clerical raiment. Symbols of State often convey political ideas just as religious symbols come to convey theological ones. Associated with many of these symbols are appropriate gestures of acceptance or respect: a salute, a bowed or bared head, a bended knee. A person gets from a symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's jest and scorn.
Today is Flag Day but it is also West Virginia Bd. of Education v. Barnette Day, since the Supreme Court decided on this day in 1943 (during WWII)  to hand down their 6-3 opinion striking down a state law requiring schoolchildren, even those wishing not to do so for religious reasons, to pledge allegiance to the flag.  The Supreme Court ruled the other way a few years before with but one (strong) dissent.  New personnel and changing opinion of three justices resulted in a switch here.  We have here, however, an example of the limits of stare decisis.
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
The opinion is eloquently written and is well cited. It is in part done so because it reaffirms that there are limits to legislative supremacy and the courts have a duty to defend constitutional limits even in the face of democratically enacted laws.  The main opinion is framed as a matter of coerced speech though the concurrences also reference the freedom of religion (also framed as "conscience").  It is also compared to a "test oath" in one opinion. One issue (the original case and dissent by Justice Frankfurter refutes this) is the determination that the unity and so forth furthered by the ceremony does not justify limiting liberty here.  Compare this to a new law in New York ending exemptions for vaccinations, which some claim is also a threat to liberty.

The opinion also touches upon the power of symbols. The flag is a powerful symbol.  A 1907 opinion (Halter v. Nebraska) that upheld a limitation on use of flags in advertising (imagine if such a limit was present today in an age patriotic messaging is used repeatedly):
From the earliest periods in the history of the human race, banners, standards, and ensigns have been adopted as symbols of the power and history of the peoples who bore them. It is not, then, remarkable that the American people, acting through the legislative branch of the government, early in their history, prescribed a flag as symbolical of the existence and sovereignty of the nation. Indeed, it would have been extraordinary if the government had started this country upon its marvelous career without giving it a flag to be recognized as the emblem of the American Republic. For that flag every true American has not simply an appreciation, but a deep affection.
Stromberg v. California (1931) was an important opening wedge on protecting freedom of speech, here accepting that peaceful expression of even possible revolution (symbolized by a red flag) is protected.  The flag salute case is a symbol itself of the breadth of what the flag stands for as seen years later when the issue was burning a flag in protest. Another relevant case would be Spence v. Washington (1974), which recognized the power of the flag and the legitimate governmental authority in various respects to honor it. Nonetheless, a law preventing altering it (here attachment of a peace symbol)  was illegitimate in part since doing that did not diminish the message of the flag.  One can say that even burning it is powerful largely because of its ultimate message.

One amusing case is Smith v. Goguen (1974) involving a flag sewn on the seat of one's pants been deemed to violate a rule prosecuting those "contemptuous" of the flag.  This was deemed too vague though Justice White separately explicitly relied on the problem being it was viewpoint based. Three justices actually dissented. Likewise, in Schact v. U.S. (1970), the Supreme Court struck down a regulation that allowed civilians to wear army uniforms in skits if done in a way that does not tend to discredit the military. Note Justice Stevens was among the dissenters in the flag burning cases. Street v. N.Y. (1969)  showed the sensitive nature of that matter, the Court closely divided in a case involving burning of the flag after a civil rights hero was killed; the case turned on the possibility that the person's words alone led to prosecution.

Flags of various kinds (even putting aside such things like those seen at NYPL branches) are very important to people. It what the object represents that is ultimately important as seen by something like a wedding ring or other symbol.  It is very appropriate, however, that an important civil liberty case was decided on this day since what our own flag represents is in a special way the constitutional system that governs us. 

Monday, June 10, 2019

After Roe: The Lost History of the Abortion Debate

As a book, this is a mixed bag regarding putting so many different things together into a cohesive whole on developments on both sides of the abortion debate in the decade or so after Roe. But, it's important to show the complicated moving parts, how the Supreme Court itself didn't cause the ultimate path and how changing events guided decisions (now criticized by various people) made. All very complicated.

SCOTUS Watch: zzzzz

SCOTUS is shoving twenty-four opinions in the last two weeks, which is asinine (Alito only wrote two opinions so far. Yeah.) Today dealt with three low drama cases (as a footnote, Sotomayor wrote for the conservatives vs. liberals in a statutory case). Orders also low drama. Somewhat interesting, but not that notable, grants. Breyer with a good statement regarding it being about time to deal with the open-ended detention of enemy combatants under an over fifteen year old AUMF. Meanwhile, in the Kavanaugh supporter sweepstakes.

ETA: RBG posted her usual end of term remarks as 2CA justice. Some talked about all the "hints" in it, but don't see that many myself. Upcoming closely divided cases at the end of June is not much of one. Her census case summary is a bit bitey.

Sunday, June 09, 2019

Becks (Not the Beer)

Saw this listed as a late nite movie and it turned out to be a lesbian musician film with nice supporting work by Christine Lahti (wait, she was in a film 30 years ago already playing a mom?) and Mena Suvari (Sugar & Spice). The star, Lena Hall, did Broadway and has singing chops. A late ill-advised move by her was dubious but probably intentionally so on some level. Adrift (lost at sea) is pretty good too, especially the lead, but sort of got bored with it.

ETA: The opening is basically a four minute or so music video. Apt.