Midnight at SCOTUS: Roberts v. Kavanaugh

[It is Supreme Court related, but separate, and also was reported earlier so will note this here.  Checking to see if the Twitter related executive order, previously referenced, I saw that Virginia Thomas was nominated  to the Library of Congress Trust Fund Board.  Did not see it referenced by various Supreme Court reporters I keep track of, but did send a notice to the SCOTUSBlog morning wrap-up person.  Don't know if other justices' wives had such a role in the past.  Seems notable at least.  More so her role in personally associating with Trump to try to get rid of "snakes" not appropriately loyal to his Administration.] 

I started a thing in the middle of last year where I take off from tweeting during the weekend so signed off shortly before midnight.  Supreme Court orders/opinions on Monday, set of primaries (if not quite enough to get Biden over the hump) on Tuesday and likely some other stuff.

Well, apparently, could have just kept on.  The protests touched upon previously continued to have new wrinkles.  And, the Supreme Court decided to drop another order involving a request to allow a California church this Sunday to not follow limits in place -- to quote the summary, "to hold services, as long as they limit attendance to 25 percent of their building capacity or a maximum of 100 people and practice social distancing."  The Supreme Court early evening rejected another Illinois request, noting the rules had change and they could challenge them.  Likewise, it rejected a prisoner request, noting that there was a grievance system in place that should be processed promptly.

The Supreme Court only dealing with one of the church challenges might have been a red flag to those who keep careful track of such things. The whole thing here has inside the cathedral flavor to it.  The late order isn't on the "orders page" but only the lesser known "opinions related to orders."  Yes, here there were opinions related to the denial, but there tends to be a regular order (such an order list but also some stand alone denial) and separate separate order in that section.  I have seen, for some reason, not done some in the last year or so.  Not doing a "deep dive," it is not clear to me if this is just a new policy or some message is being sent. 

More importantly, Roberts concurring separately at all is notable, more so here.  He was not only the fifth vote to block the injunction, but was making a point regarding providing discretion during the pandemic (note how he consistently rejected special dispensation in cases involving voting rights, prisoners and churches).  The citation of the 1980s Garcia case might be telling too --  that is a federalist battle cry and he cited the majority as a sign that the courts should give states discretion to make policy.  This would be especially case as governments were addressing ever changing facts on the ground, highlighting the lethal nature of the virus etc. (he did not quite RBG's dissent in the Wisconsin case though).*  Let's see how he votes in June cases.

Alito did not join the Kavanaugh dissent though dissented from the denial.  Alito has over the years shown some consistency regarding free exercise claims, even giving a religious angle to a stun gun case (less lethal/can appeal to people on morally; I actually send him a letter to thank him though unlike Sotomayor, he didn't reply).  And, Alito was wise to do so since the dissent was based on this assertion: "The  Church has agreed to abide by the State’s rules that apply to  comparable  secular  businesses."

This has been addressed a couple times on this blog and one wonders if  Kentucky, e.g., will have grounds get a second bite of the apple.  SCOTUSBlog summarizes how the state here pointed out that a church service is not like a store:

California (along with San Diego County) and Illinois urged the justices to deny the churches’ requests. They began by explaining that indoor worship services are different from retail stores or businesses because people are more likely to gather in close proximity for longer periods of time. Moreover, they added, the singing and speaking at worship services “increases the danger” that people who are infected with the COVID-19 virus will “project respiratory droplets that contain the virus,” passing the infection on to others. Indeed, they noted, there have been several examples of significant COVID-19 outbreaks linked to worship services.

The Trump Administration has been reported to be especially concerned about singling out religious services here for understandable reasons given their base. The concerns for choirs specially were flagged in a recent article.  Religious liberty does at times require care but that is a two-way street as well.  To quote the end of Roberts' concurrence: "The  notion  that  it  is  “indisputably clear”  that  the  Government’s limitations are  unconstitutional  seems quite improbable."

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* Roberts cited the Jacobson v. Massachusetts case as well as one from 1970s, involving denying a drug rehabilitation alternative if the person was guilty of two felonies. That opinion had three dissenters but this quite quotable bit, which Roberts took the first part of:

When Congress undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad, and courts should be cautious not to rewrite legislation, even assuming, arguendo, that judges with more direct exposure to the problem might make wiser choices.

The provision there was thus upheld in each of the courts for which a challenge was brought. The dissent has some bite on the facts though this part also shows it was coming from a mindset just not prevalent at the time: "we must be mindful that the growing concern with treatment of narcotics addicts has not arisen in a legal vacuum, but has paralleled a growing awareness of the Eighth Amendment questions raised when criminal punishment is imposed for activities which are the symptom or direct product of the disease of narcotics addiction." The oral argument also flagged that prisoners also received some drug treatment too. 

It should be noted all cases here are not the same. The Wisconsin voting rights case was not necessarily rightly decided because Roberts was consistent.  And, applying the rules there with special actions taken given the situation, is different too since here we have state rules that are being challenged.  There, we had a claim a federal judge overreached by providing special actions to deal with the situation. 

George Floyd Death / Protests

Update: The MN AG, who once was the deputy head of the DNC,  was put in charge of the Floyd investigation and had an update on the charges.  He now announced there is evidence warranting a second degree murder charge (if so, fine enough) and charges for the other officers.  As referenced here, the local investigation at first had issues.  A basic necessity is a quick and careful process, one that if done here might have led to a different reaction. An important factor here is a more above the fray person in charge.  Early charges that can be changed/removed later also is possible.  It all is a reminder of how far we have to go that in 2020, over a half-century since the height of the civil rights movement, we are still here with so much more to do.

There are reports NYC is ten days away from the first step of "re-opening" (though this still includes various limits, including masks and from what I can tell no regular restaurant service -- for me personally, it won't change too much.  This is far from "normal" and there is a lot of lack of clarity and possibility of much more death and suffering in these times.

The focus of the nation now is one particular death, one made only more symbolic as new details come out.  For instance, reports are that the police officer and arrestee (one fired and then arrested; the other dead) worked as security in the same club.  George Floyd, dead by being knelt on the neck for eight minutes, had an up/down life but was recently was a security guard who lost his job ... well, you know why.  He was arrested for allegedly passing a bad $20 and accused of "resisting arrest."

This was on Monday evening, and as these things do, was filmed by observers  (a recent event when a bird watcher asked a white woman to leash her dog in an area especially for birds was as well; turns out the guy she called the police on, emphasizing a black man was hassling her, was Chris Cooper of Gay USA!).  The next day the officers involved were put on leave (this being in Minneapolis) and then fired.  So, it is not like "black lives had no meaning." Firing police officers isn't a minor thing.  The mayor supported the move. Both local and federal authorities started to investigate.  But, George Floyd is still dead.

(A lawyer I follow on Twitter argues that if some average person did what was done here, killed a man and it was on tape, the person would have been arrested the next day. Probable cause to arrest. Arrest, no protests.  I simply don't know, and yes, some people are treated differently here. He was fired almost immediately.  I get that isn't enough.  But, this whole thing is a matter of days.  Arrest of a police officer, even of the average person, is not just some mild discretionary act.  The case below is telling in that regard.) 

In March, a twenty-something black woman  (Breonna Taylor)  was killed during a no knock raid related to a drug investigation. Various developments, including the announced resignation of the police chief and release from detention of her boyfriend because of corona virus concerns have occurred since then.  Taylor's house alleged received illegal drugs. She herself was an emergency medical technician. and once worked for Louisville, Kentucky, which is where the shooting took place.  This Twitter feed, from a journalist who had rubber bullets shot near her at one point, provides some reports and video of the protests yesterday. 

There has been various protests, including in my city, largely focused on the George Floyd case but clearly he is but a representative of a wider problem.  There was a statement by a union that city bus drivers would not assist with transporting arrested protesters. The mayor was criticized for not doing more to address excesses by police on the ground, one more example of criticism of him in recent months.  I have little direct cause to find fault with the guy really but the evidence it is time for a change is increasing.  It also seems that the protests are a sort of release from a nation partially under lockdown ("partially" since the limits are in no way akin to actual lockdown; the DOJ choosing last night to announce -- in caps on Twitter -- this lawsuit because of alleged overreaching involving car washes and such is moronic).  There are also reports that it is being used by third parties for disreputable anarchist and disorder reasons.

I am a white guy from a middle class area where there is nearly no police presence.  So, I know my lane.  Don't find the protests and rioting shocking really but there is a mixture of things here. Don't find looting Target or setting fire to McDonalds a sane approach here, even if we can in some wider sense see it as a response to society's basic violation of basic responsibilities. Take to the streets. Block traffic. I can even see (though rooting for police stations to be burned since you know -- okay, privileged white professor type -- cops are just all fascists anyway -- is to me sort of an asshole move)  targeting police cars or whatever.  Very wary of that shit, but that is logical reaction.  A Target?  Burning McDonalds, and probably hurting members of the community who work there?  OTOH, talking "logical" is probably also a bit misguided too. Levels though. Levels.

Various snapshots. Those rubber bullets. A camera crew being arrested, after the reporter calmly started to report in a way that if anything made the police on the scene seem organized.  They were let go within a few hours, the charge being that they were asked to move and refused.  A white woman police chief (another fascist cop, I assume) in Georgia calmly listening to protesters and reassuring them she understands and agrees Floyd was not how police should operate.  Note she isn't wearing a mask. Mixed bag there, looking at the photos. A final thing is that there was a thing where various people referenced the Boston Tea Party, since that too was a "riot" and involved a lot of property damage. Yes, a lot of property was destroyed, but it wasn't a riot. They had riots back then. They tar and feathered people.  They broke into the homes and looted government officials.  But, the Boston Tea Party was an organized act of protest, led by people of fairly high standing.  It was not akin to looting a Target.

George Floyd's killer was arrested, charged with third degree murder (lack of premeditation; the work connection is curious, but beyond reasonable doubt proof available? doubtful) and manslaughter (lack of depraved mind).  He had a record of excessive force violations, including one that came near the end of Amy Klobuchar's term as prosecutor.  Some flagged this and how she did not bring a prosecution in this and other cases.  But, it is not like she did nothing.  She carried out a far from atypical policy of sending things to the grand jury, which here did not indict.  She later said she changed her mind on that policy, showing that things have changed  over the last 15 years on race as much as #MeToo.

Joe Biden provided an empathetic statement for George Floyd and how we have a responsibility to address racism and police overreaching. He does that well.  One hopes we shall see him in action.  Trump responded to the protesters as "thugs," tossed in a partisan attack and used a 1960s dogwhistle.  The Obama Justice Department had multiple reviews and consent agreements arising from police overreaching.  The Trump/Sessions Department went another way.  As with criminal justice matters generally, some were upset Obama did not go further.  I found that a tad unrealistic but let's not (like the Sentencing Law and Policy Blog guy) lose perspective on the differences between the two administrations.

(Note the first link there speaks of Twitter flagging Trump's tweets, a follow-up from an action regarding him promoting some conspiracy theory involving the long ago death of a congressional employee of "Morning Joe" leading to action too.  This pissed off Trump and he responded with an executive order that is largely bluster bs, but as noted there, still is problematic.  As I underline in a comment, AG Barr being there as it was announced shows the taint in the Justice Department.  Multiple people also flagged him defaming Rep. Adam Schiff by name there.  Not in a tweet.  In an official executive order.)

We continue along in our tainted ways.  A man dies because police use excessive force while arresting him for allegedly passing a $20.  It is unclear why such a person was not just given a ticket and told he had to show up for an appearance.  The talk of resisting arrest appears to be dubious.  A medical tech dies in a drug raid where at best allegedly there were drugs present; it wasn't as if drugs were being allegedly sold there from my reading. The abuses in such raids have been detailed for years.  New York still has not decriminalized marijuana.  "Defund the police." Yeah right.  We will have crimes.  We will have arrests.  But, there is a way to limit the damage.  I still wonder about the citizen militia concept, using members of the community while arresting people etc.  Handling protesters and reporters respectably also is possible, and as noted, many did. Also, some of the mishandling of the press came from civilians.

This essay regarding letting felons vote -- to the degree we should keep a mark of Cain on people after they serve their time -- is germane here too. I have been keeping track of this issue for at least twenty years, felony disenfranchisement, including mistakenly depriving people of their right to vote, factoring into the mess in Florida.  Significant progress, including in Florida, has occurred in this area.  We even had a major presidential candidate say even convicted people in prison should vote -- something done nearly nowhere in the U.S. now.  The problem lingers with special wealth and race implications that to me makes it unconstitutional as a whole as well as lousy policy.  A few tragic cases of people mistakenly voting and getting prosecuted only is a small part of it. 

The protests continue.  It is likely the case we should had more, including in response to Trump.  One loses track; so instead of addressing George Floyd or something, he announces breaking off our relationship with the World Health Organization in the midst of a pandemic.

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* Years ago, I was wrongly arrested, put in a little cage with about twenty people and needing to spend two days in court for allegedly not paying $2.75 in an outside bus kiosk -- I shoved the tiny slip in my front pocket and forgot about it ... I only checked my back pockets as four police officers stood over me & only found it after leaving ... they put handcuffs on me etc. ... nice trip to feed a relative's cat.

It's a petty thing but my little personal experience with the crudeness of the criminal justice system.  When I wrote a letter about it to some criminal justice group, they weren't interested.  Someone else could have lost a job for missing two days of work or something.  Someone died in prison of the virus, being arrested for some petty shit.  We can't "end prisons" but there is a lot of room to cut back there. 

Various TV/Film/Book Thoughts

I saw that "Cathy" -- who we last saw married and pregnant ("Ack) -- is back in single panel segments for the Big V era.  Also, there is talk of consideration of "grab and go" (hey, it works for food at schools) books at NYPL (closed since mid-March), which is something I was thinking about too.  In lieu of libraries, I have been buying a few books and re-reading.

The latest was Charles Beard's famous defense of judicial review as a matter of original understanding (intent maybe back then), this version a 1962 edition with an interesting introduction by Alan Westin.  Beard's book itself is more of long law article, under 100 pages long, and is fairly readalbe though at times a bit tedious. It also is fairly convincing and he even notes that he is not saying it is somehow now binding. It is just an exercise to show that it is as we would now say "originalist" and at the time of the first publication (1912), that was somewhat controversial for the left leaning crowd he was appealing to in other writings.

Now, I'm reading Holly Hope's 1980s reminiscences about growing up in Kansas (born in 1950s) with the second half a collection of interviews.  The book was recommended as a way to understand the era, as I recall in a book about Harper Lee and her assistance in writing In Cold Blood.  I could not find much on the book itself or what she has been doing after writing Garden City: Dreams in A Kansas Time.  The book itself was probably received via Amazon (the owner reportedly might be a trillionaire too but sorry it is still rather convenient; plus someone told me one "alternative" -- AbeBooks was owned by them too!) and does provide a window at a run of the mill girl growing up in a Kansas town.  As the review suggests, it is not comprehensive or anything though maybe that wasn't the point.

One thing that was noted here over recent years is that I have been less inclined to watch television than in the past, even though there are lots of new shows (even without other platforms, which I do not have) on various cable channels that are available. One thing I do sometimes watch are old syndicated shows, including as noted Friends.  Without access to NYPL, I bought the last season cheaply on Ebay, buying the first there because the NYPL for some reason doesn't have that one.  Meanwhile, no one (tried lots of times) seems to want to spend $5 total for that first season DVD set.  Also, I'm watching a bit more of The Big Bang Theory, which is on repeatedly (including at night 11-12) on syndicated channels. 

Anyways, even with Hulu no longer providing free stuff like when I saw the run of Major Dad there, online does provide a lot of free video too.  I saw Madchen in Uniform, the classic German lesbian themed girls school film on YouTube.  Not all of it, but much of it (the version I saw was split the video into like six parts), and it is rather good -- very good performances, insights at the girl school experience and not the sort of too slow/boring quality of some 1930s films.  I checked out a bit of the 1950s remake and it really didn't seem as good, including the main girl looking more "movie star student" and the teacher not as good either.

The Supreme Court (6-3) recently determined unanimous juries are constitutionally required for state courts (Puerto Rico is starting to apply the new rule).  In the 1970s, the Supreme Court allowed six person juries in state cases (is that rule next up?) including for purposes of the 7A. The case that first upheld that in passing noted that the right to a jury (to be specific, an impartial jury) from the beginning did not consistently have all the common aspects of a federal jury (twelve, unanimous and so forth).

As with other various cases, the case that drew the line at five had other non-criminal process implications.  This often included equal protection and First Amendment issues, which thus fits into the general tenor of this blog entry.  The case concerned a prosecution for the airing of the well known porn film Beyond the Green Door.  Georgia had a few of such cases.  The Supreme Court said that it was a bridge too far to prosecute Carnal Knowledge.  OTOH, they left stand a prosecution of Deep Throat.  Prosecuting all three is ridiculous.  As to me was a prosecution summarized thusly:

The Illustrated Presidential Report of the Commission on Obscenity and Pornography, and an obscene advertisement, which gave information as to where, how, and from whom and by what means the Illustrated Report might be obtained.

I guess the advertisement could be considered a form of pandering, a factor used to determine obscenity.  But, though maybe this wasn't directly involved in the issues presented (Justice Douglas in his separate dissent referenced it but the other dissent relied on other matters), illustrating a major national report seems to meet the "whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value" prong of the then new and so-called improved obscenity test.  The other movies might have had prurient material that some find patently offensive, but why one could not go to a closed off public movie theater to see them -- home movies not quite a thing in the early 1970s -- is a tad clear, let's say.

The opinion of the Court here noted: "application of the community's standards and common sense is important in obscenity trials where juries must define and apply local standard." But, an argument that the 1A made special rules required here was not taken up specifically (four justices made clear they felt obscenity prosecutions are generally unconstitutional; four didn't join all the discussion, three in particular calling out Blackmun for "heavy reliance on numerology" and "studies relied on merely represent examined findings of persons interested in the jury system."  Rather harsh.  Justice White briefly concurred as is sometimes his wont. Only Stevens fully joined his opinion, himself referencing his earlier opinion against obscenity prosecutions.  Why not have one of the other three write the opinion then? This business where they can manage to find something that five agree on is a bit annoying, especially when it is down to an opinion of two or three people. 

One more thing: Last Week Tonight a few weeks back had a good segment on the post office, which is at risk now, especially with board members now leaning Trump.  The US Post Office provides a means to order specialized stamps and the show has a sheet with stamps related to the show.  I bought a sheet (20 stamps -- .55 each with a $3 S/H charge). 

Virtual SCOTUS Update

And Also: This article discusses how thought there is a shortage of blood that only Manhattan and Staten Island have permanent blood donation locations.  I'm with the woman -- speak as a blood donor for many years -- who doesn't think an extended subway trip is a good cost/benefit equation.  Put aside that on top of that, there will be another better part of an hour spent with a mask.  If blood is in so high demand, have more places to give them!  It's stupid as a rule that the Bronx (or even Brooklyn!) does not have a permanent center and Manhattan has several. 

Since the last Order List, we had three miscellaneous orders (note that separately things happen like requests for briefing from certain justices, relisting orders for conference discussion and other stuff that might just be on the case docket page).  Each are fairly important in their own ways though putting aside the execution matter there is still battles to be fought.

A troubling execution, as previously flagged, was allowed to go on without comment.  A battle between the House and DOJ over Mueller Grand Jury materials (taken up about two weeks before) continued with a cert petition due June 1 (the House as a back-up asked for an accelerated deadline).  And, a divided 9CA request from Idaho prison officials to block court-ordered sex reassignment surgery for a transgender prisoner was rejected though Alito/Thomas (without comment) dissented.

The scheduled Order List day for this week, delayed a day because of the holiday, was mostly a "see ya in June" affair.  Few things of passing note. Alito/Breyer ddn't take part in a denial for unstated financial conflict reasons.  A pending House bill would require notice unless there is a clear reason not to do so.  The wife of a deceased trans challenger replaced her though it might be notable that "wife" or "spouse" is not referenced, but "Trustee of the Aimee A. and Donna Stephens Trust" used instead.

And, the no comment passing of a California Voting Rights Act case was notable over at Election Law Blog.  I didn't note it, but a past order list not taking up any qualified immunity cases even regarding a blatant injustice was of some note to various court watchers.  OTOH, the Court held up deciding multiple gun disputes; to recall, we have two very tainted people having a key role in all these cases, including pending major disputes that were first heard in October and November.  #ButGorsuch  One major dispute that is a live controversy is the lines of delegation, which this article notes is perfectly fine as an "originalist" matter. 

But, who knows what that word even means. There is a conference scheduled on Thursday and June 1st (it's June!)  will at the very least have an update on the grand jury controversy and probably more orders.  Be unsurprising if we also have opinions that week too.  As noted, there are some major cases from last fall left though finishing the May bunch by the end of June might be unlikely.  We did have July opinions in the past.

I held from posting this since there often is -- for some reason that seems suggestive but it is not like they explain themselves -- some other separate order later in the day.  And, yes, from Kimberly Robinson: "#SCOTUS rejects Trump administration's request to halt court order requiring certain safety measures for covid-vulnerable inmates. But it's really a procedural ruling, noting that the administration hadn't appealed newest order."  The three most conservative justices still dissented (without comment), which is a tad gratuitous.  The order going out of its way to hedge is suggestive and is often the sort of thing you settle with when dealing with Roberts and/or Kavanaugh.  I hope Kagan has some outlet from always battling.

(SCOTUSBlog with more details. Seriously, TAG?)  

Also saw that among the graduation speakers this year was Chief Justice Roberts for his son's high school graduation (not the first time he spoke to one of his children's class).  He had a message of humility and compassion. Me personally, I think it would have been nice if Roberts made a statement before the telephonic arguments (saw one Chief Justice of a state court doing this), taking notice of the times and thanking all for dealing with it.

But, they went another way, basically trying to stay above the fray.  We even have to hear indirectly, from the Court's spokeswoman, that they are in good health though RBG does provide press releases regarding her medical condition from time to time.  As to the telephonic arguments, I noted in the past that SCOTUS vet Lyle Denninston was not really fan. Think he had some good points but was too critical.  For whatever reason, he had been more actively (he retired in his 80s a few years back) commenting lately.  See, here, a sort of general reaction.  One issue I had was that it did not cite the long practice of video in other supreme courts.  Leah Litman had a report that suggested some gender discrimination.

I appreciate criticism of the telephonic arguments though as a whole did think they went fairly well, especially given their novelty. Think live broadcast also worked.  The "seriatem" approach has its ups/downs, including providing a path for some justices (especially Thomas) who might otherwise be crowded out.  I'm basically fine with Breyer's long-winded old slightly befuddled law professor questions but if they need to be pared back some to give other justices time, fine.  The issue of cutting justices off too in an unfair way can be addressed, but it is not like the normal approach is so much more ideal in that area.  The concern for more crosstalk to allow justices to push against each other is valid though again I think there is some way to do that here too even without some probable behind the scenes communication between some justices.

Again, multiple supreme courts, including in these times, used video and that helps some of these things.  Anyway, more might come but I'll post now.  Like with primaries, there is more to say than one might think. 

Friends: The Last One

This was the season that at first was not planned to occur (there were enough episodes for a good syndication run) and one that not each cast member was that gung ho about. They were already starting to get new post-show roles and their new schedules also had to be worked around. It was decided to make only eighteen episodes though multiple ones were extended, so there was the same amount of content over twenty.  Thus, there was some additional cutting to fit into syndication.  DVD episodes already has extras bits and syndication often cut off final credit scenes as is.  There is a new set, I think, that found a bit more material. 

Each season has something of a "reason" for it, such as the previous two being largely focused on Rachel being pregnant and having the baby with other subplots. So, e.g., we had the risky but fairly successful plot of Joey falling for Rachel. What was left open here really? Two basic things: Chandler/Monica for a while wanted a baby and that was not addressed. The other matter was Mike, who it was flagged was someone serious for Phoebe. The second could have been addressed if Season Nine was the final one. A couple episodes were Phoebe focused there including one of the best episodes of S10 (her wedding) but not much time was spent there really. Mike/Phoebe seemed times less of a concern than even Chandler/Janice though Mike seems nice enough. A bit bland.

One common thread here is the absence of Ben Geller though he is referenced at the hospital when Emma is born but afterwards basically disappears. It would not have been hard to at least mention him more often.  Have the child actor with his baby half-sister at least once.   Rachel's mother not being around at the hospital is clearly a matter of casting a name actress, but addressing Ross' son -- hey, maybe even reference the moms moving away which is how one explained it years later -- could have been easier. Rachel's dad does pop up in S10 in a pretty good episode. Ross continues to shine in this season. In the last few episodes, it is apparent "Monica" (who in a commentary it was noted had her own pregnancy issues) is pregnant in real life. Monica and Rachel are the ones who clearly aged, especially since Courtney Cox is older than her character anyways.

This review looks pretty good.  It references the now standard case of Janice popping up.  Always fun but yeah there seems a bit recycled here, even pretending Chandler still wants her to keep her away.  Janice in an earlier season had a serious moment when she met Rachel, talking about her marriages.  I think they could have gone another way here too. It is almost forgotten that once Chandler was stricken breaking up with her, their break-up scene other than the questionable ending (going for comedy) rather touching. I think now that they all matured some more that a different approach that touches upon that some would have worked better here.  It adds to some plot laziness though that pops up (at times late in the season) in past seasons too.

Basically, I think as originally planned, it was possible to make things work with nine seasons though (with some lame aspects) it worked fairly well.  S9 was good as a whole.  The Rachel likes Joey subplot, which even the actors didn't care too much for, easily could have been removed.  The Charlie subplot was okay enough, with some amusing moments, but that too was disposable (as were some other moments; even the Rachel/Paris subplot though the last night episode was especially touching) to fit things into one season.  The Phoebe break-up/back with Mike stuff wasn't really necessary though it did allow one more David moment.  S10 did have some good moments, all which might not have fit.  Rachel/Phoebe's siblings had nice returns. One more flashback and Thanksgiving (the first half was mostly filler), plus Emma's birthday.   And, the surrogacy handled in a bit of an abrupt manner, though Chandler shined in the episode where they were picked and the meeting of another adoptee couple was amusing.* 

Series Finale has various callbacks including a reference to Ben that was nice too but it really would have been nice if we actually saw Ben and/or his moms one last time.  The twin surprise in the commentary was as with some other moments admitted to be "because the funny" and yeah the thing that comes to mind is that Monica would have wanted to see the ultrasound pictures where that would have come out as well as other medical materials.  It is suitable that one of the people in the commentary was emotional at the end since the cast was as well.

We have the usual three episodes (the Thanksgiving episode and finale is expected; the stripper one too really with the flashback material and it being a favorite of one of the producers) of  commentary.  There are also bloopers (including the first four seasons) and interviews of some guest stars (Charlie, Amy and Mike).  Christiana Applegate was one of the three guest stars who was in that segment but she did not note that she worked with "Joey" in Married ... with Children. Time goes on -- she is basically my age and I first saw her as Kelly and she aged a lot there, in a series that ran even longer (somehow) than this one. 

There is a also a documentary with talk from not only the producers but also the stars. "Joey" as the others say goodbye (the segments taped before the last episode aired) notes more was to come, probably in reference to his spin-off.  Other than one special documentary of producing an episode on one DVD, we get very little of the cast [bloopers give us a sense] as such in these DVDs extras so this is notable.  For instance, "Ross" directed several episodes (two of Joey), and it would have been interesting to at least get a comment.  More so to get him to do a commentary track of one of the ten he directed!

As with the first season -- which is not in NYPL -- it was worth to pay about $5, this time since the library was closed.  Nice box too.  Anyway, need to find a new series. This was fun.  A reunion was scheduled this year though its release has been delayed because of ... you know. 

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* Anna Faris played the surrogate here and it is sort of an in joke since she was in a parodies franchise significantly about the films Courtney Cox were in.  She had a few appearances here, but was not too notable.  The potential here is seen in the surrogate arc in Rules of Engagement, including Audrey wanting to be part of the process and being jealous at times of the surrogate.  We get more in past seasons too, back to S1 where Monica's desire for a child was first seen, including signs (before the writers thought it would be a thing) of a special connection between her and Chandler.  The two simply work. I'm Team Chandler/Monica.

Opening Schools in the Fall and Big V Constitutional Liberty Issues

I agree that the linked piece regarding the perils of returning to school [specifically college and so forth but the concerns are largely applicable to lower grades] in the fall and the conservative views on certain subjects helps provide common ground.  In the comments, it was noted that special concerns should be given to return of schoolchildren.  I agree since we are dealing not just with the needs of parents but children, who have more of a need for education at that age for different reasons.  Relatedly, though the complaints at times seem a bit exaggerated, there are grounds to worry about Zoom teaching:

For reasons I describe here, in-person teaching has important advantages over online instruction. Among other things, in-person teaching makes it easier for faculty to make eye contact and otherwise gauge the reactions of students, and to make sure that the latter are "getting" what the instructor is saying. Being in class also makes it easier for students to stay focused and effectively interact with each other.

A Trump supporter complained about "moral panic" and "overreaction" of what something (other than New York and maybe a few bad apples) was basically "a bad flu season." Mark Field in a later comment noted something like 12x (in May) normal net deaths is a tad worse than that.  Also, the person failed to (as is his wont) be evenhanded both selectively citing information and in apportioning blame. He alleges there is "Trump Law" that selectively targets Trump.  I think he practices the reverse.  Anyway, as I note there, such complaints are overblown and 100K (so far) etc. if anything warranted more action though the various things done including social distancing and isolation followed standard protocols.

Another person went back/forth with someone even less worthy of reply (though for years people have, with a mixture of vitriol and facts) regarding how government regulation here overlapped with traditional methods. The usual cases here involved regulating transit points, particularly quarantining or blocking entry totally of ships and people.  The broad sweep of such principles (see New York v. Miln) was limited somewhat in Edwards v. California, which barred blocking entry merely to keep out paupers.  Nonetheless, the basic principle appears to be good law.

There is, of course, a sphere within which the individual may assert the supremacy of his own will and rightfully dispute the authority of any human government, especially of any free government existing under a written constitution. But it is equally true that in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.

Not that we have many recent precedents that appear on directly on point. If so, it is unclear why Jacobson v. Massachusetts (1905) is quoted so much.  That case involved a state compulsory vaccination ($5 fine, which was notable but not confiscatory at that point) that was used during a smallpox epidemic. And, there was a process set up to determine if the vaccination was necessary, which was met there. Finally, the opinion left open a special case where the vaccination would case special harm to the person in question.  The link shows that there was some allegation of particular harm, but apparently was not strong enough for this exception.  Likewise, the law was not applied in an "unreasonable, arbitrary or oppressive manner."  Note two justices did dissent.

So, it was not a compulsory vaccination of a baby, let's say, as an absolute rule.  The opinion has various quotable language such as how the minority protected by a locality could not in such cases allege a right to be excepted from a general law passed in protection of the community.  In Prince v. Massachusetts, a 1940s case allowing applying child labor laws even if the behavior is religious in nature, the case was cited to show general applicable laws are valid in such a case.  The cases that grant exemptions to my knowledge was in applying statutory exemptions and maybe RFRA type laws. That question is still somewhat open. 

And, in Planned Parenthood v. Casey, the law still was cited in good law, but that the general state interest in protecting life was not strong enough to meet the test to justify a general abortion ban. This would be a useful citation against various attempts to severely limit abortion rights without good cause during the pandemic.  As noted here, in general, modern day views of liberty would in various cases be more stringent than in 1905.  It is unclear, putting aside ability to send children to school or something, if a compulsory vaccination program of adults would be allowable. Various cases against compulsory medical procedures can be cited. OTOH, one can be detained in a mental institution if one endangers others.

Though dealing with the breadth of action present today has no exact recent precedent, over the years there were general principles that could be applied.  A prime case here would be the well being of those in state run institutions, which includes certain due process protections for safe conduct.  Various cases, imperfectly applied in recent days, also protect voting rights and guide how the laws should be applied in this case.  Broad executive power should be carefully analyzed, but emergency situations repeatedly have been shown to justify it, especially if the legislature provides guidelines.  Religion is of special concern but general rules still apply.  Emergencies do not provide "anything goes," but that hasn't been the case now, even in places like New York City.

A value of our system of law is the ability to reason and apply, a form of common law within constitutional and statutory guidelines.  A final word can be said about an interesting precedent, noting that new times bring new practices, so I'm not saying it just means we can apply what they did. But, it still is helpful and informative. I speak of the 1793 yellow fever epidemic, yellow fever being what led to a few cases of the Supreme Court (and lower court judges in some cases) closing shop temporarily. Over the years, plague, yellow fever and related instances led to broad social and legal implications that do provide some help to our current affair.

Various things stand out in the discussion, putting aside disputes (at times having a partisan tinge) over proper medical techniques. The government had the power to close ports, block scheduled coach schedules, require private religious burials (and hold church bells) and had special cleaning regimes put in place.  Quarantines were enforced including limiting the movement of refugees.  And, in general, limits on normal business were allowed.  This is a time with less population and government in general. Overall, though it's a fool's game to rely on this in many cases, a conservative legal mind could find the current methods "originalist."

A basic thing in my own comments in the opening link is care. It is unclear what will happen and given the scope of the harm to life and well being, we should be careful.  This can be difficult -- it seems that the New York City schools should have been closed sooner, but that had a range of difficulties that led me to be wary about it early March.  And, there is a national need here, as noted by one who cited how the mismanaged travel ban probably worsened the situation.  It's May, so it's unclear to me what exactly should be done regarding colleges in September. The article is helpful as we figure how to handle this, any solution a balance of costs/benefits.

This is will also apply to sports -- Gov. Cuomo has reportedly welcomed the opening of training facilities and efforts are being made to do so also in Florida regarding the Mets.  This sign of  restarting of Spring Training suggests that it is more likely than before that there will be a baseball season of some sort perhaps starting in July.  More so a football season. I'm wary about the scope necessary to do this, including the more close nature of football (with more people close together on the field).

But, we shall see.

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* I think this should be separated as a bit of a footnote. 

The Trump supporter I clashed with tends to latch on to certain things, one thing there being nursing homes.  It is hard to keep up with all these details, so it is best to try to keep on track with general principles. Generally, it is logical that many would die at nursing homes given that older people are especially at risk here and they would be a logical place where at risk people would be or would be place.  There still are about 70K who did not die there.

The implication was that somehow people were wrongly sent to nursing homes and this negligently infected people there. But, nursing homes would seem like a logical place to send people to be cared for though ideally we would have independent areas, perhaps, set up as have been to isolate people without the means to do so on their own .  The person in question argued in a previous comment that ventilators should be distributed based on means to pay, so he might not be a good advocate here. It seems on a basic level, see the numbers, more dust.

And, we have this:

The Centers for Medicare and Medicaid Services issued a memorandum on March 13 stating, in part, "Nursing homes should admit any individuals that they would normally admit to their facility, including individuals from hospitals where a case of COVID-19 was/is present."

I didn't look that up at time but thus what is the argument? Many people died at nursing homes?  What does this tell us?  The concern here was to avoid overwhelming hospitals with those who were not in immediate need of medical care.  Perhaps, this is also a sign of where truth arises from collision of error to the extent I looked it up after reading his bs.

Some Books

I have been finding it hard to get into books since March, which overlaps with the Big V, though it is dubious to just blame that.  There has been a general practice over the years with so much more reading online for it to crowd out book reading. I still have read some books (at least around 15-20 a season) though back in the day read more. In the midst of the Internet Age, did read the novels of Jane Austen, except for most of her stories written as a teen.  One useful approach here is finding set times to read, which used to be during traveling on the train or during meal breaks.  More recently, found it helpful to read some when I first get up.

In the last few months, many books didn't take. An Unsuitable Job for a Woman was the most recent.  I watched a televised version years back, so far back that I do not think it was version that was part of a series that starred "Emily" from Friends* so it seems to be the 1982 version.  But, I just remember seeing it and basically nothing else. Anyway, the first seventy pages or so was okay, but got tired of it.  In part, it was a matter of being tired of the usual citation of background details present in many mysteries.  But, the story itself annoyed me and skipped ahead didn't improve things.  The 7% solution Holmes book was easier in that respect.

After reading a biography by her daughter (though her daughter's book on her world-wide travels during WWII was too overwhelming for me), I tried a book on the Curie women particularly.  I didn't like it either -- in part, it was because it only tells part of the story, particularly focused on the coming to the U.S. and years afterward.  The incomplete account was not helped by the writing style.  So, Marie Curie and Her Daughters was another pass though I would like to read more on the subject.

Starting with the mid-nineteenth-century campaign by the American Female Moral Reform Society to criminalize seduction and moving forward to the late twentieth-century conservative effort to codify a national abstinence-only education policy, Regulating Desire explores the legal regulation of young women's sexuality in the United States. The book covers five distinct time periods in which changing social conditions generated considerable public anxiety about youthful female sexuality and examines how successive generations of reformers sought to revise the law in an effort to manage unruly desires and restore a gendered social order.

This is sort of a collection of essays in a fashion, only 150 pages, dealing with five specific case studies.  It is not a complete analysis of the subject matter; after all, there was a free love movement in the 19th Century.  But, overall, I found it interesting and well written.  She more recently co-wrote a book on "abortion regret" (many accounts speak of childbirth regret)  and wrote on on teen choice regarding abortion that she summaries here. She cites a book that came after that one, Girls on the Stand, which I spoke about on this blog.

With the libraries closed, though I did have multiple books out to read, re-reading some stuff I have and purchase have filled the gap. Some failed too, including The Amendment That Failed To Die (14A; a somewhat rambling book). Others including The Color of Rain worked better. Another was a little book by someone whose brother was murdered that later because an advocate of forgiveness.  Coffee Shop God was followed by a documentary about her experience, including meeting the murderer.  A short video on her website is probably suggestive of the wider effort. She continues to speak out from flags that come up of her recent experience, the book in question published in 2009.

Next up is Goodbye, Mr. Chips, the version having extra material including from the author and illustrations.  That should be safe.  I watched the original movie years ago as well as a lesser t.v. movie version with the guy who perhaps best know as Doc Martin but also did various other stuff.

(Starting to read it, there is a lot of overlap, but some differences including the sort of details used to fill in an extended film. His wife did help promote his popularity and sense of humor, e.g., but their meeting was different as was the use of a foreign born professor. A bit about him being ill at ease in punishment was generally referenced but not the keeping them from a key sports event that was highlighted in the film.) 

===

*  Season 10 of Friends is later dealt with separately. 

Primary Update

I only saw the very end of their debate but apparently the opponent of AOC (two or three times, I received texts on my phone for polls that turned into what looked like an anti-AOC push poll) is laying it on thick.  The most important thing is, glitches and all, we did get a debate between the primary candidates.  It was on BronxNet, one of various public/community access type channels for which FIOS provides no guide information so I do not know when things are on ahead of time. I did notice among the channels I now get (Bronx) News 12 though it would be more helpful if it was on Channel 12 as it is on another provider.

Some people in a safe seats, especially now, rather not debate so again it's appreciated.  As is the news that the federal court of appeals, with NY not planning to appeal, upheld the district court ruling requiring a presidential primary election.  Simply cancelling in midstream, especially with mail-in balloting and 2/3 of the counties (including NYC counties) already having races, was in bad form.  The limited amount of extra resources necessary to send and process mail-in ballots -- which push comes to shove it could have done like other states if in person voting in any area was problematic -- still does not seem to be worth it balancing other interests.  And, the lag time for the failed litigation cuts short prep time to meet deadlines.

This ruling also influenced Puerto Rico, with a similar law as NY originally had, to set a primary in early July.  The court said it deciding mostly for the reasons of the district court but a full opinion would come later.  Meanwhile, this state court of appeals opinion regarding two candidates kept off the ballot for reasons connected to the Big V seems petty and not compelled (see dissents).  OTOH, this does seem like there is something real there and it isn't the first time.   Recall that in New York, the "Supreme Court" is actually the lowest court in the chain. 

Two primaries this week.  First, we had Oregon on Tuesday with sixty-one delegates and then Hawaii on Friday with twenty-four.  Sanders always had enough to break the 15% floor in Oregon but edged a little bit higher near the end.  Then, it held around 85% of the vote cast.  Warren has around 10% and Gabbard and sign-in both are around two percent each. It might suggest the left-leaning nature of the state that even at this late date a third voted against Biden.  Though there is still more votes to count, both AP and 270 to Win estimates a split of 46/15 delegate-wise between the two candidates. A strict population apportionment without the fifteen percent floor would give Warren about six delegates and even Gabbard might get one.  Now, each get nothing and one can debate at least if 10% of the vote makes the just.  Again, one can see how all this can matter in an actual election with more bite.

Shades of some late 2016 states that gave anti-Trump support in the twenties or something. There is no sign of that now, suggesting the need for a real protest Republican candidate like Pat Buchanan in the days of yore.  It is misunderstood by some, saw this myself, that the reason is that there really aren't Republican presidential primaries.  One problem is that there is no candidate likely to obtain a floor, the usual being 15%, which is the rule in many states. New York cancelled it because no candidate could get signatures in all the districts.  But, we still are having many Republican presidential primaries.

Take Nebraska, a small but Republican friendly state. Bill Weld, who couldn't get on the ballot in NY, received 8.5% of the vote.  Not bad for someone who basically stopped running even his kinda campaign months ago.  Imagine some big name with the resources and drive to give it a go the whole way? It is a blot on the party no one did.  And, even Oregon, which I see only has Trump on the ballot, there was over six percent write-ins, which is a pretty large number as to that method. Over twenty-four thousand people felt it obligatory to go out of their way to vote Republican and vote for someone other than Trump. I think that matters.  The write-in for the Democratic senator race is less than two percent.

Hawaii had its primary on Friday, and apparently because the primary was originally April 4th, not just the "final four" (Biden/Sanders/Warren/Gabbard) were on the ballot this time.  The results came out early evening on Saturday and the AP with less than 35K voting (over 500K voted in Oregon, again we aren't just talking presidential races), the split is 16/8, again fairly not surprising in a liberal leaning state.  That would be 63/37 percentage-wise with ranked choice run-off voting to eliminate the other candidates.  Just by mail but the later date did leave more time to register.   The turnout is a tad disappointing when you note that there are over one millionaire people in Hawaii compared to over four million in Oregon. Even if you factor in the population differential, Oregon did better voting.  OTOH, Oregon had some state elections too. 

Meanwhile, some have a "vote by mail" mantra. As with the "vice presidents don't matter at all in elections" line, this raises my "no absolutes" spider sense. And, experts do say that voting by mail plus is the way to go.  This includes drop boxes, which is a good idea -- you can track the ballot (if you have computer access) if it is set like media mail and the like, but some would actually want to drop off. But, in person methods also would be useful, including to ask questions and so forth.  In some cases, at least in a limited form (Rick Hasen is against unlimited means to collect ballots), having third parties pick up your ballot and deliver them also might be a good idea.  Anyway, the experts also say we have a ways to go to be fully ready and the asshole isn't helping with his ranting.

Oh well.  That's all they wrote primary-wise until June.

ETA: In a past entry, third parties were referenced and 2016 suggests this addendum is warranted.  Jo Jorgenson, a past vice presidential candidate (1996) and Clemson psychology lecturer (not quite Gary Johnson) was nominated to be the Libertarian candidate.  There was some concern with Justin Amash's run but he decided the time wasn't right.  They went another way.

"Trump Is Failing at Governing But Winning at Authoritarianism"

Joe Biden was on Colbert the other night (the at home format is pretty charming, including the often low rent, low romance -- some guests go all casual -- remote interviews) and came off pretty well. You get the idea why people are reassured by the guy. Colbert liked him in 2016; at least, when he came on, Colbert seemed to emotionally ask him to run. Now, Colbert does his Joe Cool shtick involving Biden. It's a bit lame. It seems maybe Colbert supported someone else. Well, I did too.

But, he's basically the nominee in all but name, even if I'll vote Warren in the NY primary on principle. It's about time to move on with the grumbling, which was acceptable. Now, it's not. He's not "just better than Trump," though serious people would realize that is enough. Latching on to a rather dubious allegation (even before more info came out to make it more so) and pretending like dropping out is even possible was stupid. Or, latching on to some gaffe "gotcha." GTFU. We need to win and win big.

The subject article provides some more details of the stakes. As if we don't have enough. Emoluments, blocking oversight, firing inspector generals, interfering in criminal investigations, "can you do me a favor, though?" And, now trying to badmouth voting by mail. Since we aren't like some third world country with knocks on the door, there is some ability to handwave. But, we should not. Move beyond the policy stuff. Judges. etc. Sigh.

"A Feud in Wolf-Kink Erotica Raises a Deep Legal Question"

There are a range of things worthy of discussion in the news beyond the usual suspects and the subject article flags this. The idea that the Internet is generally used for porn has been well cited. But, it is not just visual. There was and continues to be a great outpouring of erotic/pornographic writing, including chat rooms.

The copyright conflict here arises is some part of this -- the similarities of two erotic writings seem at least partially because they were inspired and got material from online erotica. I'm curious what sort of "research" was done by Kitty Bennett and Susan Beachy, the first at least sounds like a pen name. I sorta kid though the legal work here sounds somewhat interesting. The efforts, some quite skillful if done for subjects that some find distasteful, of Omegaverse & others also is noteworthy. Plus, the overall dispute can arise outside of this one area.

SCOTUS Order/Opinion Day: Not Much Happens

There were more time with May arguments and many cases pending, but nothing much this morning. This includes regarding dealing with a bunch of pending 2A issues other than declaring one moot. Thomas flagged a circuit split apparently to deal with too many prisoners gaining relief once they are released. The one opinion was unanimous per Gorsuch and held against Sudan regarding punitive damages under the relevant law.

Update: Texas has put off multiple executions but Missouri decided to push ahead with a problematic case though at first it looked a federal judge would hold up. But, the court of appeals overturned and (without comment) the Supreme Court let that stand on Tuesday. He was executed. I'm glad I don't "deep dive" these things like last year. Depressing.

Virtual SCOTUS News

The Supreme Court had telephonic arguments from Monday to Wednesday on various major issues (tribal sovereignty, rules for discrimination claims for teachers at religious schools, Trump financials and faithless electors). Roberts seemed a bit stressed on Monday, but things ended on a good note, perhaps because the justices as a whole wanted to avoid problems in the last case. If anything, more state power over elections can be applied to help Trump.

No orders on Monday, one unanimous trademark decision on Thursday and a conference today. Sotomayor's opinion there however was overshadowed by a "statement" (more like a dissent) joined by RBG to an appeal from the 5CA (which overturned a district judge's ruling for the prisoners) involving the needs of older prisoners in these times. As she notes: "May we hope that our country’s facilities serve rather than cautionary tales." The Supreme Court rejected the appeal without comment. Maybe, a bit of comment as they stay at home would have been appropriate. OTOH, see its Wisconsin primary opinion.

Also, Michigan plans to settle the literacy case, so the lower court stands for now.

One Woman's Fight

With libraries closed, I'm spending some time rereading books and referenced this book here some time ago. Turned out around the time when she died, her not only around in the 1990s for a reprint first published in the 1950s, but living into the 20th Century. It is part of a wider whole of books that are basically case studies, of which I read many.

She was behind the McCollum "release-time" decision, the first time the Supreme Court struck down a law on Establishment Clause grounds. She notes another state case involving "release time" not on the premises, suggesting her own case might be decided differently. The U.S. Supreme Court so decided though the book itself doesn't add a footnote to say so. The first case had four opinions: a blithe one by Justice Black, a more detailed account with history but basically as separatist by Frankfurter, one by Jackson wary of too many cases (and noting religion will still be taught in a variety of ways) and a solo dissent by Reed.

All have something useful to say. It is suggested by two justices that not much harm is present here. The abuse inflicted on the child here suggests otherwise (the mother's obit adds a macabre detail about a cat that the book merely notes was lost). Some "free" exercise. And, the net result favors some sects who run the programs in place. No wonder the author notes many religious believers supported her cause. Worthy rereading.

Primary Update: Nebraska etc.

Twenty-nine Nebraska convention delegates were at stake in yesterday's primary. I will use this entry to cover various electoral related matters.

For instance, today the finale of the telephonic Supreme Court arguments (no orders on Monday even though there was a conference on the previous Friday) involved faithless electors. As one might recall, Bush won in 2000 with four more electoral votes (really three but a D.C. elector submitted a null vote to call attention to something or other, nothing if the vote mattered, it would have gone to Gore). The two cases were split because Sotomayor recused in one because she is friendly with a party.  The tenor of the arguments suggest a majority will find a way to avoid denying the states power here though a few justices might disagree somewhat.

[Somewhat relatedly, Aimee Stephens, a party in one of the GLBT employment cases has died though like a religious liberty case argued this week, I gather her spouse still has standing regarding damages or the like.]

Also, for now, New York will have a presidential primary pursuant to a district court ruling overturning its cancellation.  The state is appealing though the opinion (basically resting on First Amendment grounds) seems sound.  As noted, even if the candidate is a given, the election is “also serves to determine the party’s principles and goals through the adoption of a platform.”  Either way, by some measure, Sanders would get some sort of fraction of New York delegates by agreement, but here the voters decide.  Even if allegations of specific anti-Sanders (or primary challengers) bias is overblown, refuting that sort of thing is also helpful.

The decision seems to leave open in-person voting but not sure if that is compelled -- Andrew Yang surely seems to think mail-in voting would be acceptable.  OTOH, even if the same number of regular polling places need not be open if it is unsafe, some in person locations is likely important.  And, showing that the technicalities of New York elections still has some ability to pop up (if not quite like one person who might have had her name kept off the Democratic ballot) in inane ways -- AOC had too few signatures to get on the Working Family Party line.  She really should have made sure to have a few extra, given how these things go, but as her campaign notes, it doesn't really matter.  After all, we are talking a new limit of fifteen.  But, it still is rather silly, especially since there are no other candidates for that line.

(Here is another picayune ruling by a lower court  that turns on a filing a day late in the middle of a pandemic, the person in the hospital and clashing with a law that changed in midstream.  There are going to be asinine applications of the law but New York seems to have this happen too often. The legislature might want to clarify things some more.)

Indiana was due to vote on May 5th but postponed. Wyoming also voted for various Republican races, causing some controversy.  It is to be noted again that though presidential races might be handled separately, especially this year, there is usually more races than the now mostly sealed (again except for convention delegates and the chance to vote) presidential races.  This would also include Nebraska, which has in person voting if with special rules for social distancing, not using rest rooms or providing voting stickers.  Recall again that Nebraska is the one state with a unicameral (one house) legislature with each member called "senator."

Nebraska ran a caucus system in 2016 but per party pressure was one that shifted to a primary.  Wyoming did so for Big V purposes, having a mail-in primary.  Iowa, Nevada, North Dakota and some territories did or plan for now to have caucuses.  Puerto Rico has not re-scheduled its primary and if there isn't any, Biden would likely get most of them though some agreement might be made to provide some to Sanders.  The rules originally would strip Sanders of lots of delegates for suspending but Biden agreed not to have that occur. So, even if New York has no primary, it is unlikely in the end that all 200+ delegates would go to Biden.

Results. Again, there were other elections (and a vote on a bond issue) with Kara Eastman, e.g., getting a second chance to beat the Republican House candidate (she lost in a close race last time).  She is the more left leaning candidate though I have seen some suggestion she compromised a bit to gain support.  This is Nebraska.  Sanders won Nebraska in 2016; this time it does not appear he even met the 15% floor (there is no instant run-off voting, so Warren's six percent and Gabbard's 3% was key -- Sanders received 14% so surely could have received around four delegates in another system -- a small matter here but suggestive of how election procedures do matter).  So, 29 more delegates for Biden.

Next Tuesday: Oregon.  Kentucky postponed. West Virginia was also originally  yesterday but postponed. 

A Question of Choice

Sometime in the past, I read Sarah Weddington's (who argued Roe v. Wade) original account, A Question of Choice. I found a 40th anniversary edition (2013).  One of many books on the subject (e.g., read one by Laurence Tribe) I have read throughout the years.  Be interesting if I found one that covers other efforts (Liberty and Sexuality briefly covers this ground) of the many other cases, including Doe v. Bolton also lead by women advocates.  The charm of the copy I found was that not only did she sign it, but the previous head of Planned Parenthood who wrote a new introduction (Cecile Richards) did as well.

On some level, this is suitable Mother's Day reading -- the basic question of choice regarding motherhood is at stake. Weddington herself had an illegal (if safe) Mexican abortion in the 1960s but never did have children (yes, some might disagree). Many others who had abortions were already or later on did. The author of the ruling had three daughters.  One good book I found that summarizes the history of abortion and includes many first person accounts of women who had them (Abortion and Life) has a woman pregnant (the author) on the cover.  Motherhood includes a mix of things, including in a plurality of the total cases, abortions.

A previous entry referenced this book, but will add a few words now that it is completed. It is best for the details on leading up to (including winning state office) and after (she worked in the Carter Administration though she didn't provide her role in RBG being appointed judge, even though now she is justice -- the original was written twenty years before). She slips up (you can listen and read along her arguments and you might catch a couple mistakes) there but overall good.  At times, you wish she added a bit more -- Linda Coffee basically disappears though then briefly pops up when the t.v. movie is referenced (one I saw back in the day) -- but good.  Also, she is not clear that basically after Carter lost re-election she went into academia.

The update is a tad disappointing. The original appears to have ended with Thomas being appointed including her testimony against and then you'd think we would move on to Planned Parenthood v. Casey. Nope. It is briefly referenced near the end (with the stupid mistake that O'Connor alone wrote the opinion). Instead, we basically get boilerplate on her anti-abortion forces increased, general statements about the opposition and the importance of choice and then a list of things to do.  The things that happened since 1993 were somewhat touched upon, yes, but in a way that left something to be desired. For instance, a snapshot of RBG being appointed (again, she was "there" when Carter appointed her the first time) would have been nice.  Instead, RBG is briefly mentioned a few times.

So, get the book for completeness, but the original is basically as good. One little quirk -- the author, like the author (Marvella Bayh) of another book recently read knew Lady Bird Johnson.  Her husband died the day Roe v. Wade was decided, but she lived until 2007.  I checked, and her real name was Claudia, though her nickname (Wikipedia says it basically became her official name) allowed repeated use of the "LBJ" initials (even the dog).  Perhaps, there will a fiftieth anniversary edition in a few years. 

6th Circuit Enjoins Ban On In-Person Worship Services Reprise

We have a follow-up in which the 6CA stands its ground regarding an injunction barring enforcement pending appeal of Kentucky Governor Andrew Beshear's COVID-19 order banning in-person church services. It makes clear that it accepts the action is not a matter of animus or singling out churches specifically. But, the exceptions does show it is not a general applicable rule (this is often a stickler -- few things are totally absolute, so we have an all/nothing problem unless exceptions are upheld using strict requirements).  And, the general told holds via a per curiam without dissent or concurrence to at least give a hint more supportive of the other side.

"Keep in mind that the Church and its congregants just want to be treated equally."  By getting special dispensation from rules. The rejoinder is that there are exceptions and we get this with a Gorsuch type tone:

Come to think of it, aren’t the two groups of people often the same people—going to work on one day and going to worship on another?  How can the same person be trusted to comply with social-distancing and other health guidelines in secular settings but not be trusted to do the same in religious settings?  The distinction defies explanation, or at least the Governor has not provided one.

Well, the lower court, as I said last time, did provide one:

Plaintiffs seek to compare in-person attendance at church services with presence at a liquor store or “supercenter store[].” The latter, however, is a singular and transitory experience: individuals enter the store at various times to purchase various items; they move around the store individually—subject to strict social-distancing guidelines...—and they leave when they have achieved their purpose. Plaintiffs’ desired church service, in contrast, is by design a communal experience, one for which a large group of individuals come together at the same time in the same place for the same purpose.

The court of appeals is not impressed at such logic:

The Governor suggests that the explanation for these groups of people to be in the same area—intentional  worship—creates  greater  risks  of  contagion  than  groups  of  people,  say,  in  an  office setting or an airport.  But the reason a group of people go to one place has nothing to do with it.  Risks of contagion turn on social interaction in close quarters; the virus does not care why they are there.  So long as that is the case, why do the orders permit people who practice social distancing and good hygiene in one place but not another for similar lengths of time?  It’s not as if law firm office meetings and gatherings at airport terminals always take less time than worship.

The opinion notes that the people involved promise to follow social distancing rules and not do things like share chalices or the like.  As noted last time, there is evidence that the rules were not followed in various cases already.  They are violated generally (see, e.g., people in my area not wearing masks in public places though they are required).  It to me is ridiculous to say that the "reason a group of people go to one place has nothing to do with it."  See the previous paragraph. The specifics factor in here and it is just silly that there is not more chance of extended interaction at a damn church service than the likes of an airport terminal.

Various exceptions are not likely in practice, and general rules are logically formulated that way, to ever have the same type of gathering than church services.  A laundromat a place with limited people where you stay for limited periods of time.  I have gone to one repeatedly the last couple months and say this from inexperience.  Question that law office meetings will have the time and numbers (including more likely older people) of a service.  Many will likely be by phone or video chat. And, airports will have less tendency of interaction, generally being atomistic locations. Plus, there is more chance there to use blunt social distancing rules.

Again, religion is an important part of human existence, especially in these times, and the Constitution and our laws do specifically protect it.  So, if possible, I understand the concern over allowing in-person services which are seen as fundamental to many to practice their religion.  But, there is good reason to apply social distancing rules to religious services even if certain life sustaining matters are allowed. If anything, the exceptions already are probably somewhat too broad. Religious services have aspects that also make them more concerning, aspects which in other ways are benign and go to the heart of their nature.

As  individuals,  we  have  some  sympathy  for  Governor  DeWine’s  approach—to  allow  places of worship in Ohio to hold services but then to admonish all of them (we assume) that it’s “not  Christian”  to  hold  in-person  services  during  a  pandemic.    Doral  Chenoweth  III,  Video: Dewine says it’s “not Christian” to hold church during coronavirus, Columbus Dispatch, April 1, 2020.  But the Free Exercise Clause does not protect sympathetic religious practices alone.  And that’s exactly what the federal courts are not to judge—how individuals comply with their own faith as they see it.

I rather not have judges provide asides like this in official opinions regarding what their "sympathies" are respecting how to be a good Christian.  If we want to provide a full accounting of what religious liberty entails, it is likely not having what amounts to quasi-official endorsements of not only Christianity (there are other types of worship) but sectarian suggestions on top of that. Basically, religious liberty includes following certain general rules, and contra to the analysis provided (with limited hints of the state side), that if anything goes against the claims here.

Anyway, it's a bit of a have your cake and eat it too approach that is of limited value.  I still think drive-in services might work, but as a matter of allowable discretion, without more, inclined to support the governor here. But, given the rules of the game these days, who is to know?  Still, especially given the district court opinion, I rather hear more than what is provided here.

Virtual SCOTUS Week Continues

Yet another pandemic-related emergency filing reached the Supreme Court tonight. A group of Pennsylvania businesses led by the Friends of Danny DeVito, a committee formed to support a candidate for a seat in the state’s legislature (and no relation to the famous actor), asked the justices to temporarily block the enforcement of the executive order entered last month by the state’s governor, telling them that the order and others like it are doing “substantial, unprecedented damage to the economy.”

Busy week for Virtual SCOTUS. Monday -- Orders, Mon-Wed -- Arguments (four total), Thursday -- Opinions and Friday -- Conference with odds and ends mixed in.  (The odds and ends including rejecting, without comment, a request to override a stay it home order; the lawsuit not related to the actor).  This includes RBG dealing with a benign gall bladder (though giving some stress) issue, taking part in the  Wednesday conference call argument to call out threats to the birth control mandate from her hospital room.  She sounded feisty, let's say.

The second argument involving robocalls was a less controversial issue but had a bit of a bump when a toilet flushed. The Court delayed release of the audio and transcript; looking into it (comparing the audio posted on Twitter), they edited out the unscheduled sound effect.  The first week of live streaming of telephonic arguments overall was fine with many appreciating them, including law professor types.  The glitches were minor -- Breyer, e.g., accidentally got cut off, Thomas for some reason wasn't ready the first time he was called and we had that little toilet thing that amused a lot of people. But, we had a lot of this in the Age of Zoom, be it companion animals, children or whatever.  The justices seem to take things in stride and basically are pretending like nothing much special is happening. If this little silly toilet thing is latched on as some excuse to restrict livestreaming, it is stupid. 

The informative live-streaming of arguments followed up by special discussion (both on C-SPAN and SCOTUSBlog & likely other places) will continue next week, including with an issue involving faithless electors. Imagine if that was a thing (besides one who submitted a null vote since nothing turned on it) in 2000 when a handful of electoral votes determined things.  Or, in 1877 -- what if some faithless elector complicated things there?  Like the Third Amendment, these constitutional debates seem largely theoretical until suddenly they are a thing.

Anyways, opinions.  (There was an important district court ruling, but it might be short-lived and also seems best for next week's primary entry.) First, from the oral argument not too surprising, the Supreme Court via Kagan said the Bridge-gate prosecutions at issue was a misapplication of the relevant federal statute.  As the opinion notes, this doesn't erase the abuse of power.  Plus, not only were three people fired, but a person not covered by the litigation pled guilty to other charges.  And. Gov. Christie's national hopes were seriously hurt by the whole thing.  Finally, there have been many local (the persons here might have been guilty of local crimes) and federal prosecutions of government officials over recent years.  Things are not all hopeless though a few responded as if things are.

Let me toss in yet again that ideally we would have audio from the Supreme Court for these opinion announcements, but with the Big V., it doesn't even look like we will get a lot of them even (months later) on the Oyez.com website.  The usual practice is to announce them in court with the justice providing an opinion announcement and more rarely dissenting from the bench.  They could have done a livestream of that too.  When talking about livestream or video of oral arguments comes up, this subject often isn't even raised though it is even less defensible not to post it than video (which lots of appeals courts do now without difficulty). 

Anyway, the second opinion appears to be something of a surprise except for Thomas also concurring separately to find one more area of law he wants to do away with, because a conflict that seemed to be over the free speech overbreadth of a federal statute was a slam-down (in another unanimous opinion, this time by RBG) on the appeals court for reaching out to decide things in a certain fashion.  Guess adding new arguments is SCOTUS' job. Seriously, this seems like a somewhat curious opinion.

And, thus we come to the virtual conference. The results will be provided on Monday.  Meanwhile, CJ Roberts held up the release of grand jury materials from the Mueller Investigation for a response, due within ten days.  The House accepted that beforehand though maybe not for that long.  Meanwhile, the independence of said investigation is being screwed over by the Barr Justice Department, clearly not free from bias but not recusing, changing its mind regarding the Flynn prosecution.  The guy pled guilty over two years ago, so that delay alone pissed me off.  And, now this.

Oral arguments for the Trump financials will be heard next week.

ETA:  I thought things were over for the week, but one additional thing occurred arising from an allegation that the seat (soon to be filled, confirmation recently accomplished, by Judge Justin Walker, an under 40 Trump troll type) that opened up on the D.C. Court of Appeals might have done so because of undue influence of Sen. McConnell.  Judge Thomas Griffith, a conservative judge, is retiring in September, apparently because he has fifteen years of service time and thus gets full benefits.  Note the link -- he is sixty-five, so that  adds up to "80." 

The current Chief Judge (who recently replaced Merrick Garland and was also on the short list to replace Scalia) asked to have the complaint handled by another circuit to avoid claims of bias.  On the merits, I think the allegation as applied to this specific person probably was dubious, but seemed sound to at least investigate.  I saw a reference by a member of the Strict Scrutiny Podcast (liberals) that she respected Judge Griffith and was sorry to see him go.  I will grant that he is a respectable sort etc., but appearance of bias is important too. 

Well, it was reported today that Chief Justice Roberts rejected the move on procedural grounds.  As with tossing out the complaints against Kavanaugh once he became a justice, which btw was done per rules that Sen. Warren proposed changing, maybe this is sound application of the rules.  I'm not going to pretend to know otherwise.  But, if there was any reasonable chance to have the matter investigated, and I'll bet my nonexistent farm that there probably was reasonable grounds to go the other way, it would have been good to do so.