Supreme Court Watch: Title 42 Edition

"Title 42" refers to a specific section of the federal code regarding the power to block immigrants for health reasons. The specific reference in recent years involves doing so with respect to COVID. It is controversial and argued to be basically an excuse to have a more strict entry policy.

The whole matter is complicated with various moving parts.  The question often came up during Psaki's press briefings and likely still does though I'm less interested in watching her successor.  It also is the subject of multiple lawsuits, which results in various complications with one court blocking it while another blocking an attempt to wind it down.  

Chief Justice Roberts earlier this month put in place an "administrative stay" regarding a court blocking it, on the petition of some states (yet more state usage of the courts to fight policy, which has gone in third gear or whatever the metaphor is in recent years).  Some carefully noted this was just a procedural move.  For instance, Sotomayor this week lifted her temporary stay in a more minor dispute involving public trial questions.  

[I will continue my campaign here regarding the importance of clarity. Sotomayor should have briefly explained what the case was about and why she chose to refuse the stay request.  If something is going to be in the lightly used "order list" page -- not some catchall order list or mere docket tick-off -- we should get some clarity on what is happening.]  

Nonetheless, the people might not be too surprised (to the degree they pay attention or are not just lost -- the number of moving parts, in this case, makes that quite possible) that the Supreme Court DID grant states' request for a hearing.  The net result might just be to kick the ball forward -- and cynics might argue [see the first link] that Biden is not overly in a rush here specifically -- but delays matter.  See, e.g., the Trump financials.  

The specific grant here is for "procedural questions" regarding the right of states (which critics argue have no real grounds to do so) to intervene in the lawsuit.  The question does not only affect this one case.  IF the states get to do so here, there will be an increased ability for states to intervene, and thus more policy disputes will be decided in key ways by court action, currently with more conservative judges in various circuits.  

The immediate effect (though the brief order is vague and critics argue misleading on the point) is to hold up the ending of Title 42 as applied.  Again, the presidential statement noting the time will give Republicans a chance to join with Democrats to formulate a sound immigration reform (good luck with that ideal result) doesn't change one's mind too much, it is unclear how much this really bothers the Biden Administration.  A few Democrats support keeping Title 42 as I understand it, and you only need two senators (coming up) to matter after all.   

There is a joker.  The vote was 5-4.  Now, the expectation there would be that Roberts would be the fifth vote since at times he opposed what he argued to be procedural or substantive (see Dobbs) overreaching.  Barrett was the fourth vote with liberals in a few cases with religious or death penalty aspects.  No, the fourth vote here was Gorsuch.

Gorsuch penned a short dissent joined by Jackson with Sotomayor and Kagan simply noting they would not grant the petition.  He ends with a statement that they are not "policymakers," which is a bit hard for me to take given the various things he did.  I'm inclined to agree with one analysis that notes that it seems on par with his general opposition to federal COVID policy. This includes by use of the policy-making "major questions" doctrine.  

The cert grant after all will block the carrying out of a D.C. court order to end the Title 42 policy.  Gorsuch notes the federal government terminated Title 42 orders because of a finding the health need elapsed.  So, any opposition would merely be based on concern for immigration generally.  But, that is not the grounds for Title 42.  So, the states have no case.

His position is tempered granting he is stating no opinion on the claim that the administration did not properly follow the rules in ending the policy. A telling point!  If the process was too slipshod, how do we know the determination that the health need is no longer in place was correctly obtained?  He also notes his sympathy for the disruptive consequences of ending the policy but that is not enough.  I'm not sure.  Maybe, the law factors that in when ending this specific policy.  

I am unsure if there simply is no argument for the states to make here though agree they should not have taken the case.  Some reason to doubt should not be enough here.  There should be a very clear case before you hold up actions of the lower courts that in this matter the Biden Administration did not oppose.  I do think besides selective Gorsuch sanctimoniousness, there are some dubious "merits" arguments mixed in.

I think Sotomayor and Kagan were correct not to join in though I understand why Jackson did give the overall effect.  Got to ally with those conservatives when you can -- you will be hanging with them for a long time. Still, I fear Gorsuches bearing gifts and as some note, his language might come back and bite ya in another case where we want to uphold administrative action.  And, I question if the two-page dissent adequately addressed the complexities of the case.   

One final tidbit.  The order and dissent are found in the lesser known "opinions related to orders" page (since Gorsuch wrote an opinion).  It is not in the more familiar (even to some court watchers) "orders" page.  The order is an important act that in a major way affects federal policy.  It should be clearly found on the website.  It actually probably should be announced in a press release.  One more bit of opaqueness.  

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There is an execution of a trans inmate scheduled next week unless things are held up.  I tossed in above the Sotomayor order.

ETA: The woman involved in that case has been found dead.

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I saw something interesting on C-SPAN involving a book (A Constitution For The Living) adapting Jefferson's idea that constitutions should be limited to a time period when statistically half living would no longer be around (19 years at the time). An interesting concept to have new constitutional conventions (1825, 1863, 1903, 1952, 2022), but I did not really find the writing and some of the choices that good.  Also, it seemed the author did not catch a few mistakes.  A worthwhile misstep as a whole. 

Chief Justice's Year-End Report

The other matter is the end-of-the-year report for the federal judiciary, put out each year as a sort of New Year's Eve present by the Chief Justice.  This tends to have a specific theme (a historical event provides a "cute" precedent) while ending with some statistics of cases tried and the like.  

The historical event in this report is not as quirky as sometimes used.  This time we are provided events arising from the 1950s Little Rock and the judicial protection of equal rights (did Breyer -- who sees Brown as the Supreme Court's greatest moment -- pick this?).  The reader can decide if this is any implicit response to the current controversy over the Supreme Court.

There is a bit about how the district judge was threatened and "the importance of rule by law instead of by mob."  Reference is made to a federal judge whose son was murdered.  "Congress enacted the Daniel Anderl Judicial Security and Privacy Act to help protect judges and their families."  Daniel was the murdered son.  

The end of the report is merely nine pages long (so it was last year) and by the chance results in a rare drop of something on Saturday.  The last five pages concern the workload of the federal courts.  As Amy Howe notes, nothing about the leak investigation or anything.  

[As House Democrats look toward losing control in a matter of days, some end-of-the-term stuff is dropping, including Trump's tax returns. These things will take a lot of time to fully process.  I surely haven't.  

This includes over a hundred-page transcript of Ginny Thomas answering questions for the 1/6 Committee.  As noted, it wasn't under oath, but it still was illegal for her to "deliberately provide false information to Congress."  I gather -- imagine this for the chuckles -- if this ever came in front of SCOTUS, her husband probably would recuse.  No promises there, however.]

One statistic is that "122,872 persons were under post-conviction supervision on September 30, 2022."  It is comical a release a presidential list of people fully pardoned that dropped yesterday had six names.  Something must be done to have an institutional system in place that provides much more than that!*

The year, if only part of the term, of the tainted court, thus ends.

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* At times, a few responses to my comments on the presidential pardon power argued it should not exist. 

This unnecessarily tosses the baby out with the bathwater.  Maximum sentences are not a great policy and facts arise that warrant commutations, pardons, and amnesty (a special category that includes something like taking away the threat of punishment of Vietnam protesters).

The "monarchial" to take one word used flaw is that there are not enough checks and balances.  The New York Constitution, for instance, allows for legislative limitations though it does not seem that the governor is blocked too much with the current procedures in place.  Other states have more strings as a constitutional rule.  

On the other hand, though you can find various "favorites" getting benefits here, I am not sure how much in practice that is a problem.  Still, as seen by the Trump pardons and various infamous ones over the years, problems arise.  A means to override a pardon (perhaps under set guidelines by some supermajority unless the guidelines are blatantly not met) might be a good idea.  As the link notes, there are already judicial alternatives and so forth. 

One op-ed accused President Biden of "cowardice" for not doing more to reform the pardon process. Congress could act here too, including putting in place a pardon board in a more independent location (there is a fear it now is too influenced by the prosecution side).  The president would have the final say, but the bureaucratic details matter.  

I think "cowardice" is somewhat unfair.  To me, it is more a matter of inertia and choice of political options. Also, it is in part that Biden is himself not fully concerned about change. That is not "cowardice," though you might oppose the weighing of values here.  Also, any citation of how horrible he is on criminal justice should factor in his judicial picks and what he did do, especially in the context of the median.  

Holiday Weekend Odds and Ends

Jets showed no life (Zach Wilson might not just be done for the season, he might be DONE Jets-wise), Giants lost at the buzzer vs. the Viks with a 61 yard field goal, and the Colts looked listless on Monday Night. Giants hope they will again and that their playoff hopes don't fall to beating the Eagles. Various other actions including Packers staying alive.

Christmas went well enough. New restaurant, Gyu-Kaku (Japanese BBQ) for Christmas dinner. Party liked the service though two not a big fan of cooking food at the table. Some vegetarian options. Do Not Open 'Til Christmas was a good "don't think too much about it" Christmas romance. Is Boxing Day when boxes are thrown away?

I never got a flu shot before but all those texts etc. made me get one. I also got my second Shingles shot. Rite Aid is a few blocks away and you get a nice little Rite Aid band-aid and all. Good deal. The vaccine hesistancy out there? No so much.

SCOTUS Watch

A few things were released by the Supreme Court this week.  I also will take about some Supreme Court related items, including a death penalty related book and how recent Trump related things are connected to them.

Orders 

No Order List this week (or next), but a couple orders dropped. Chief Justice Roberts with an administrative stay regarding the Title 42 border policy.  Sotomayor with one regarding an alleged violation of public trial requirements.  And, a notice of a special master report involving Delaware.

While people are waiting for a final decision on that border policy stay, the Supreme Court on Friday dropped an order granting some argument time in a few cases.  This sort of thing will be ongoing -- various orders dealing with oral arguments, maybe finding a few more cases to grant, and so on.  

Scheduling 

We also received the February oral argument schedule.  

Some order or such might drop next week, but the main thing coming is the End of the Year Chief Justice Report, including the cute historical tidbit used to promote whatever theme is involved.  

Trump Reports 

After delays since 2019, aided and abetted by the Supreme Court, the House of Representatives finally received Trump's taxes. They are being released with some degree of redaction.  Part of the news is that the IRS selectively didn't audit Trump until the Democratic controlled Congress started to push.  Various details here though I do not go along with all of the "House part of the problem" framing later on.  

We continue to find problems, including various dubious tax dodges (huh; both Trump and his wife have expenses and earnings that conveniently repeatedly cancel out?), again with emoluments connotations. The connection to the Supreme Court here is how oversight was delayed and blocked by slow walking and laying on additional protections. 

Dahlia Lithwick also calls out the 1/6 Commission for letting Clarence and Ginny Thomas off the hook.  I think they have a tangential connection to the direct events (an allegation that not enough was discussed about law enforcement failures at the top seems more concerning).  But, the courts again factor in here, including John Eastman's connections to Thomas.  

Death Penalty 

Lethal Injection and the False Promise of Humane Execution by Austin Sarat (and some students) is a small book about how lethal injection is botched.  It doesn't suggest there are realistic ways to do things better. A case study (Ohio) was basically a twenty-year convoluted attempt to improve, ending with their current extended moratorium. Botched executions by his account are part of the system no matter what method is used.  

Austin Sarat, who provides essays on Justia/Verdict, wrote a longer book on botched executions in 2014. He generally has written about the immorality and basic injustice of the death penalty.  So, it is not surprising the book does not offer suggestions for reform (maybe the longer book does?) or talk about nitrogen gas. 

A supporter of the death penalty (the book provides the crime of the people covered) might answer in various ways though even they should be willing to grant that the process is problematic. One area here is the secrecy and lack of careful detail.  This is a procedural due process concern.  You can flag that while noting that someone who murders after breaking out of prison (to cite an easier case) needs to be executed, even if the method is flawed.  Others won't buy that.  But, I don't think that is HORRIBLE.

The little book (about 135 pages proper in a small paperback with pictures of various people executed and a few charts included plus notes) is a sort of case study of the problems of lethal injection.  Will we find one of these being published in forty to fifty years about nitrogen gas?

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The justices will be back in the new year.  

Key Nominee to N.Y. Court of Appeals

The "Supreme Court" of New York is the lowest court of the state system and is the Manhattan [New York County] district court basically. The highest court of New York is the "court of appeals" and has seven judges with fourteen-year terms. It is currently generally said to be split 4-3, but the conservative chief judge announced earlier this year that she would resign years early.   

Gov. Hochul, who nominated one of the "three" earlier (a black woman, she had some opposition since people didn't want yet another former prosecutor), would have her first major choice after being elected for a full term in her own right.  She had seven choices, with progressives stating varying comments like "acceptable," "no comment," and "hell no."  Roughly speaking.  She chose one from the last box

Judge Hector LaSalle is a lower court judge who would be the first Latino to lead the state court system.  Like the black woman pick, it looks like Hochul favors these "firsts" and message picks, more conservative there than (nod to President Biden) strongly liberal picks or non-prosecutors. Given her background as a moderate upstate sort, this is not really surprising.  Cuomo didn't pick her for progressive bona fides.

Cuomo's last two picks (from my vantage point, one more than the other) had strong progressive opposition, but in the end, only ten (including my own, who will not be there this time) senators voted against them.  We are getting some ire against Gov. Hochul.  But, if that sort of number is going to oppose her pick, people better not just go after her.

I retweeted my Bronx Borough President strongly supporting him with this take & later she deleted the tweet, for whatever reason.  Like the "Cuomo" redistricting fiasco takes, that is sort of bullshit.  This sort of thing -- the system in place provides checks and balances for a reason -- has multiple parents.  

There have been a few strong objections (if not from a key committee chair) from senators and media commentators (Kate Shaw, of Strict Scrutiny Podcast, who at times is a bit more professor-like than her two colleagues, tweeted a strong objection). It would be a good sign of progressive strength if someone who made such red-flag rulings on matters involving key issues like labor and abortion is blocked.  

A vote is due sometime in January.  I fear he will be confirmed, which would just be aggravating in what is supposedly the second most populous Democratic/liberal leaning state in the union.  Anyway, my incoming senator, the replacement to Biaggi, opposed the nomination, even though he himself is Hispanic.  

My bottom line is that I accept that the governor (not my first choice to be sure but seems acceptable overall) won't be as liberal as I will like in various cases.  But, this is a key pick with long-term significance.  There were multiple options to avoid doing something that comes off as a "fu" to progressives.  So why do this? She already is getting heat for keeping a key campaign guy who progressives deem a major reason Democrats did badly in 2022.  

The hope is that long term that he won't be quite as bad as some fear.  But, it's a reasonable bet that other options would be better. And, it would be better politically, since you are not saying "screw you" progressives. Net, why make such a choice?  Citing a "first" or even if deep down the pick matches the governor's overall views is not enough here.  It just seems like a bad move, which for some will be a HORRIBLE one.  Bad call.

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Rep. Mondaire Jones, who among other things has been a strong critic of the Supreme Court at times, got caught in the whole redistricting mess.  The net result is the guy who pushed him aside lost to a Republican, but maybe Jones will get a chance to beat that guy (maybe both?) again in two years.  

Jones is Pelosi's choice for the U.S. Commission on Civil Rights, which is a nice way to spend some of his time.  Good luck.  He is only in his mid-30s and should have a good future in public life.  

Happy Hanukkah!

Hanukkah (or however you spell it) started at sundown on Sunday, so it overlaps Christmas this year. Winter officially begins on the East Coast shortly before five p.m.  I talked about Hanukkah in the past.  Still haven't found a good adult book covering all the bases.

It has various meanings (saw a good PBS documentary about it once), including as a cultural event in a Christian nation. One Jewish trans woman (with Orthodox origins) noted it is an LGBTQ-type holiday, about honoring who you are, including against attack.  The origins (Macabbees and all that) have a bit of extremism mixed in with the defense of Jewish traditions.  

Some might think it is overdone as a "Jewish Christmas," but there is a mixture of things there depending on the person and family involved.  That discussion referenced a recent Hallmark film that received some good reviews (Hannukah On Rye), Hallmark (and others I suppose) mixing in a few Hannukah films this time of year.  Many of those films are not great; so maybe, give a bit of a forgiving eye to the much smaller sample size.   

A bit on the "eight days of Hanukkah" film cited.  I checked it out a second time and again did not really get into the story, finding the guy, in particular, a bit annoying.  But, the "Hanukkah presents" bit?  Why not?  The scene had repeated Jewish references, so it had that covered (family celebration).  People say "Christmas presents" too, right?  And, the person who said that was a girl who before was talking to a non-Jew about certain Hanukkah facts.  So "Hanukkah" was sort of on the girl's mind.  

The side panel has a little bio of Hannah Arendt, who in part is famous for her account of the Eichmann Trial.  I could not get into the actual book though the introduction to my copy was interesting.  It was from a Jewish writer and was somewhat critical.  

Deborah Lipstadt's interesting account of the trial includes a more critical account (the introduction argued the most open to criticism alleged "self-loathing Jew" material was only a small part of the book; she suggests it is a bit more than that) near the end.  She does provide a balanced take, noting various good aspects of the book.  I liked the first two-thirds of Lipstadt's book -- the part focused on Eichmann and the trial -- better, at any rate.  

I also saw an amusing children's book in the library, The Eight Knights of Hanukkah.  (Prime "get it?!" material.)  

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I also found a good young adult book, The Silent Stars Go By by Sally Nicholls.  The book is set in 1919 Britain, a nineteen-year-old returning to her family for the holidays.  She needs to address the fact that the supposed missing (dead?) father of her baby is back.  

The father was missing in action when she (unmarried) found out she was pregnant and the baby was "adopted" (though that didn't exist in the U.K. until the 1920s) by her own mother, whose youngest child died a few days after childbirth.  This collection of reviews is interesting.  

The book, like many YA volumes, is well-written and not only for teens.  I had a bit of "okay, you are just delaying the reveal" at some point. Nonetheless, I had a good feel of the era, including through the eyes of her brother, who has not been able to move on from the war.  

The book is in the voice of one character ("the pretty one" in a family of plain girls) but through her, we get a decent understanding of various other characters.  This helps to add interest.  I understand one critic that notes the plot is a bit standard on some level (no great surprises) but overall think it was a good portrayal.  

Sunday Thoughts

The Freethought Matters (Freedom From Religion Foundation) television show was not an interview this time. It was a special holiday episode. 

The hosts wanted to particularly note that Christmas was really based on pagan traditions, particularly the celebration of a particular sun god. They argued winter solstice is what is at stake and they were really celebrating nature and reality.  

This is fine though really this time of the year was overall celebrated over time like springtime and harvest festivals are.  I would not focus on some specific sun god though it's fine to reference how Christmas traditions (such as evergreens) are not just "Christian."  

They also noted the organization's efforts against state-supported religious displays.  They failed to note that the law is likely different now on this question than in the past (realistically).  As to that, I started off wanting a strong separation, at least allowing it (the Supreme Court has not even let localities have a strong separation approach voluntarily in various cases, citing free speech problems).  I am still supportive of the latter, more or less, though think strict neutrality is the bottom line.  

There was various craziness this week with the Bills clinching a playoff spot in the snow being one of the least so.  For instance, the Colts blew a thirty-point lead.  The Pats tried a lateral instead of simply taking a knee and joining the multiple OT games this week, but (after already giving up the tying score after it was at one point 4th and 10 at the Raiders' own 19) it turned out to be a game-ending pick 6.  And so on.

The Jets -- after going 6-3 multiple people citing how good they were doing -- had to play the Patriots again.  My sentiment at the time was they had to finally win a damn game against that team to not be the "same old Jets."  

They not only lost (horribly), Zack Wilson lost his spot, and then went 1-3, the only win (by Mike White) against the team that gave the one win to the 1-12-1 Texans.  This would include Sunday's loss to Detroit, and Zack Wilson's back since Mike White did not get medical approval to start. And, the other guy is worse.  Fun times!

Wilson did okay but the defense gave up a winning TD late and there was only enough time [and it was pretty good they got that far] to try (and fail) to make a 58yd Field goal to tie the game.  They play again on Thursday (against the Jags), then Seattle, and (long shot it matters much) Miami.  Me? If they beat the Pats once, 8-6 (over 7-7) with the tiebreaker (now) over Miami would still be respectable. Yes, there will be the perennial problem of not having a QB you really can trust long-term.

Anyway, the Sunday Night Game was the rematch versus the 7-5-1 twins (Giants and Commanders) with the winner likely to get a wild card and the loser having a hard time of it.  The Commanders made enough mistakes (and the Giants' defense made enough good plays) that we avoided another 20-20 tie at the end of regulation.  The Giants won 20-12.

I found the game itself not very appealing, only watching a few parts.  The Commanders earned the loss, yeah, but the officiating repeatedly was dubious.  The NY Daily News flagged a penalty ignored at a key moment at the end. The Commanders had a touchdown taken off the board for a procedural penalty there too.  This is how a postseason is blown?  

The Commanders also went for two early (down 14-9), got called for a penalty (annoying an announcer though he admitted it was technically right), and then a long extra point (still one you should have made) was no good.  The point did not really matter since they didn't score that final TD anyway (imagine if they were stopped and lost 20-18), but it was just one more pissant thing that the game turned on.  I am no longer really enjoying (if I ever did) this sort of thing.  

A long time ago, I read a book on Florida's role in the Civil War, including a reference to salt production.  I do not know the name of the book but found this one.  It was overall an interesting collection of essays on various topics.  The one on the major (not very) battle of the state is more one on post-war symbolic memory (still interesting).  The chapter on slavery and law was to me the weakest.  A good short chapter on Hispanics too.  

Ethel & Ernest

The Svengoolie film is not really worth mentioning, so will just note Ethel & Ernest is charming. I saw it as a preview on the Muppet's Christmas Carol DVD.

It's based on a graphic novel about the author's parents, ordinary working class (he delivers milk; she was a maid) Brits from the 1920s to the beginning of the 1970s. The lead two voices are familiar actors. Well written, drawn, and performed.

SCOTUS Watch: End of Year Clean-Up Time

Before I get into the odds and ends coming up for the U.S. Supreme Court, let's note that there is an ongoing important decision for the New York Court of Appeals (highest court). 

The conservative chief judge (not for any problematic reason! surely!) is stepping down early resulting in a key moment for Gov. Hochul to change the tenor of an often 4-3 (see, e.g., the gerrymandering case) court.  Hochul's first nominee was a former prosecutor, but still a pretty good pick from my vantage point.  She was in the dissent in the gerrymandering case too.  

I do not pay much attention to the court, but this is an important moment that can influence the future of state law.  

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There have been no opinions in fully argued cases yet this term, which is somewhat behind schedule.  They often have some minor opinion released by now.  Last term, the big Texas abortion lawsuit case also dropped in December.   We also await Justice Jackson's first opinion of the Court, after we saw two dissents in shadow docket type cases.   

Amy Howe and others (go to her website to get various details on the matters addressed here) noted that the public information office notified the press that (first time since early 2020) there will be opinion announcements.  No change on the release schedule, including having audio or transcripts on the Supreme Court's own website.  Which would be ideal.  

The statement was -- as is often the case -- only released to the press. There is a "press release" and "media advisory" section on the Supreme Court website.  This is used sparingly.  I dropped Chief Justice John Roberts a letter noting my discomfort in such news only coming indirectly.  It is a tad ironic after the Supreme Court in numerous decisions rejected claims by the press that they should have special privileges.  

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Brett Kavanaugh attended a private holiday party on Friday night at the home of Matt Schlapp, who is chairman of the Conservative Political Action Coalition (CPAC), and that attendees included Stephen Miller"

On the "Supreme Court needs an official ethics code" front, we have this.  The House recently had a hearing that not only flagged allegations that Alito leaked the Hobby Lobby opinion result, but that ideological groups do various things to try to influence the Supreme Court.  This is a sort of "appearance of impropriety" matter.  He's not just a conservative lackey anymore.  He should have a higher concern for appearances.  

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December 15th is Bill of Rights Day.  There are some good books on the Bill of Rights.  Linda Monk's volume is great.  I like the book co-authored by Caroline Kennedy too. Akhil Amar has an interesting "Bill of Rights" book too.  And, there is the classic The Birth of the Bill of Rights, 1776-1791 by Robert Allen Rutland.  

I read Bernard Schwartz's unpublished opinions of the Warren Court book (following up on the Burger Court volume).  It's interesting to see some of these opinions, including a Griswold opinion with just a single reference to privacy and a bit more on marriage.  His analysis of "what might have been" left a bit to be desired.  

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The Order List on Monday was a yawn, but they did later grant three more cases (not too exciting), and separately another case regarding the Biden student loan forgiveness program.  Also, an attempt to block a California ban on flavored tobacco was also denied without comment.  

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There are no more executions scheduled this year or conferences. The Supreme Court will be back next month/year.  The Chief Justice End of the Year report drops on New Year's Eve.  There might be some order or such before then.  

Final Execution of 2022

There were eighteen executions this year, usually bringing up concerns other than simply being against the death penalty. 

I don't want to handwave that last one since sometimes ("oh you know other than pacifists") that is belittled. On her way out, the governor of Oregon commuted all of death row (17) to life without parole (itself problematic (Stevens dissent), but it leaves an opening for the future), noting the death penalty itself was immoral and bad public policy.  

Idaho was originally going to execute someone today, but reports are that they didn't have the drugs.  Oklahoma (tying with Texas for five this year, scheduling a lot to catch up after delays caused by their own screw-ups) went so far as to sue to try to get someone in federal custody transferred over to execute today.  A conservative federal judge found their reasoning unconvincing.  

So, the total was eighteen, with Alabama (2), Arizona (3), Missouri (2), and Mississippi (one, the second in the last ten years) rounding out the list.  I talked about the executions here and noted various red flags, including executing people on death row for decades, questions about how "worse of the worst" they were, multiple botches, and more.  

Thomas Edwin Loden Jr. is one of those cases where heinous crimes involve a very mixed-up individual.  There is a story behind a vet, who was never in trouble with the law, "suddenly" one day decides to kidnap, rape, and murder a teenager.  He was given the death penalty even though pled guilty.  He had various claims that helped to keep things going for over twenty years.  The actual execution allegedly went off okay.  

There was no final Supreme Court order (though he had some failed appeals in the past), but the last matter was a challenge against executing him before a (long ongoing) lawsuit involving lethal injection protocols was still ongoing.  Two state judges below would have held things up.  

Loden had various constitutional claims but the bottom line was that his one heinous act was the product of a broken individual.  There is some evidence of mental illness (check the first link) and the usual troubled details you often find with murderers on death row.  He was rightly put in prison and put there for a long time.  Twenty plus years.  But, what is the legitimate public purpose really in executing him?  

A family member who observed the execution perhaps will obtain some closure though other family members in these cases have varying feelings.  The feelings of victims, often split, are not the deciding factor.  A person like this is not likely to be deterred.  This is not akin to someone murdering in prison or something either.  Bottom line, it's a moral message.  On that front, including looking at the story of the man, I think we can disagree.  

One sentencing blogger (who I got annoyed with on other issues) tended to be a bit sneering when I and others focused too much on the death penalty. There are so many other criminal justice matters.  Consider the fate of the millions in the criminal justice system, including many who die in prison. I and others can hold both into consideration.  

Taking of life should remain of some special concern, I think.  Anyway, the executions are part of a wider whole with many problems not limited to them.  They provide useful snapshots, especially if we do not just focus on them.  Bottom line, it does seem a waste to execute a few people in an arbitrary fashion.  It is not even much of a big public issue these days.

I continue to think the death penalty is bad public policy and too often as applied raises special constitutional issues. I am not HORRIFIED and SICKENED about it as much as some.  I do not think people are simply bloodthirsty to want to execute.  If we have some empathy for the executed, we can leave some understanding for the executioners.  

I guess being able to without too much trouble talk about each individual execution is a sign of something.  Could be a lot more executions with the number of murders and people on death row.  The fact that even the two states with the most executions, including the second most populous state in the Union, only executed five people is notable. Five too many though. 

Sunday Thoughts

This weekend has become a sort of the start of the Christmas season for reals thing for me. My mom's birthday is the 10th (Happy Human Rights Week!) and I usually take her out for brunch. I also took out my sister as an early birthday present (did this at least a couple times). And, while at her place, I put up my mom's Christmas tree.

I watched the Holiday Affair, a 1940s generic holiday title if one that is accurate.  A war widow with a young son is hanging on to the past and playing it safe, including going out with a safe, if a somewhat boring guy.  The film's value is shown in part by the guy not just being a boring stereotype.  He gets some respect as well in the screenplay.

While getting into a bit of trouble as a comparison shopper [buying something only for that purpose with no intention of keeping it apparently was illicit at the time], she meets and falls for a more fun guy who also has the nerve to push up against her some.  Harry Morgan (MASH guy) has an amusing bit at the police court.  

Janet Leigh IRL (about 22) is a bit younger than her character seems (her son is like six) to be but worked well.  The mom and son have good chemistry.  There is a bit too cute a scene involving the son and the ending is a bit too rushed, but overall, I liked it.  

The film surely was better watching than Giants/Jets football.  The Eagles just owned the Giants. So, the Giants will go to the rematch with the Commanders tied 7-5-1, continuing their "coming back to earth" period.  

The Jets continued their Defense good, offense, and other things not quite good enough period.  They have been 1-3 (the Bears such and didn't even have their usual starting QB) with each game close enough to be tantalizing.  Zack Wilson (who fell from grace so much he wasn't even the #2 on Sunday) couldn't handle the Pats, setting up for a special teams fail sealing the deal at the end of the game.  Mike White beats the Bears and is overpraised for it.  And, then two close games versus top teams (Vikings and Bills), but the Jets in both looked not quite there.  

The Bills game (who thought the Jets would sweep them? who started as QB the game they did beat them?)  showed a Jets team with multiple issues. First, they gifted the Bills a TD (always a killer) at the end of the half after the old "let's see if they jump" 4th down maneuver actually worked.  The Jets then tied when they came back, but the Bills went up 14-7.  The defense still kept it close, even getting a safety.  

Still, Mike White got hurt, and (oh no!) Flacco came in.  Mike White (somewhat thankfully given Flacco's performance) came back.  After the safety, they were driving (down by 11), but ... turnover.  Time running low, on 4th and 1, they went for the FG later on, and a drive with less than a minute to go was four bad-looking throws.  The coverage I saw did not suggest Wilson is starting any time soon.  

So, what?  Another Jets QB bust?  I need to see Mike White actually win more than a game versus a bad team to tell me he's the one, even if some reports are that his teammates like him.  Oh well.  

The Texans actually showed up versus Dallas, but could not ice the game late.  Dallas ran the length of the film, basically, and iced the game themselves.  Texans either being really bad or finding a way to lose is at least on brand.  It's somewhat amazing the team managed a win and a tie.  

There are lots of holiday movies on these days, including on CBS.  This includes new movies on Saturday and Sunday sometimes. The Holiday Sitter is a basic Hallmark film (the non-domestic guy finding his domestic spirit by having to watch kids was done too), except that this is about a gay guy.  Hallmark now not only has gay supporting characters but is willing to have a few films with gay and lesbian leads.  So, the big kiss now is between two guys.  Which is nice.  The film overall was a decent watch.

==

I noted -- though it might not feel like it -- that next week is Christmas Eve. Hey, Saturday counts, even if it really feels like it's two weeks away.  As to the birthday brunch, the darn place did not have the falafel I wanted.  It was on the menu.  I didn't want my usual veggie burger.  Oh well.  I liked the drink, toasted corn muffin, and coffee.  The other things were okay enough.  And, the price was okay.  I still wonder how Monica and Julie -- back in the 1990s -- spent over $50 for brunch.   

The Creature With The Atomic Brain (and Muppets)

I am having problems with books (Hannah Arendt is more interesting at the moment to read about than to actually read), but did enjoy a couple films.

This week's Svengoolie (the bits related to the film was taped during COVID hibernation though the "stuff from viewers" segment seems recent) was one I saw before. But, it still was a painless (including pacing) silly sci-fi film. As is often the case in these low budget jobs, the action finale was a bit weak. The closing bit was sorta cute though.

The other film was on DVD (good commentary from the director), The Muppet Christmas Carol. This too overall was good (including the acting, songs) though I think the finale song was a bit too long. I saw (and recall enjoying overall) the Treasure Island one. I do not remember seeing this one. Michael Caine is Scrooge; Gonzo is Charles Dickens. A film about Dickens and Christmas itself? Couldn't get into.

Sen. Sinema (I-AZ)

Sen. Kyrsten Sinema’s switch from Democrat to Independent is getting some attention. The White House, via the press secretary, released this statement:

Senator Sinema has been a key partner on some of the historic legislation President Biden has championed over the last 20 months, from the American Rescue Plan to the Bipartisan Infrastructure Law, from the Inflation Reduction Act to the CHIPS and Science Act, from the PACT Act to the Gun Safety Act to the Respect for Marriage Act, and more. We understand that her decision to register as an independent in Arizona does not change the new Democratic majority control of the Senate, and we have every reason to expect that we will continue to work successfully with her.

Which is fine. She's a pest.  As noted in this analysis, she has at various points negotiated in what appears to be bad faith.  

Sinema seems to favor a sort of performance theater (including her outfits, though her office was quite insulted when this was flagged) that really rubs people the wrong way.  Early on, she seemed "hip" in this regard.  Now, it is less beloved.  

I am fine with her wardrobe choices myself.  Who cares what she chooses to wear on the Senate floor, though that one number she had when she voted down a minimum wage hike (her vote didn't matter really) was a dubious choice.  Now, on the filibuster ... 

Her working against filibuster reform, even with respect to voting rights and abortion rights (supporting both on the merits), was bad enough without her sanctimoniously doing so and getting kudos from Mitch McConnell (which she seemed to like) in the process.  

Sinema always seemed to frame herself as some sort of political gadfly. She was in the Green Party and then chose basically a sort of maverick-y approach to replace Senator McCain.  It's Arizona. I get it. And, Democrats will take her 50th and now 51st vote.  She has less seniority in politics than Manchin and Arizona is now a purple state.  But, her winning (barely) in 2018 was a good get.  She ran against some woman military veteran, a Republican already a member of the House.  Seems like a good choice though a few suggest she was somehow a bad candidate. Shrug.  

The times, however, might have passed her by.  As noted here, there really is not a big reason not to support someone else in the 2024 primary.  And, I do not see her as a Lieberman when he ran against Lamont (now the governor of Connecticut).  I doubt Republicans will sign on to her, letting the official Republican swing in the wind.  On that front, I don't want her to run independently in the general.  The Republican can easily win if she manages to get a few percentage points.  It's risky.  

But, I question if she would actually do that.  She has not solely been an independent agent.  She worked within the overall Democratic Party system throughout her career.  Now, maybe, she will go the route of a few Democrats (Tulsi Gabbard) and become a total shill.  She is far from being in that spot yet.  Gabbard always had some conservative troll in her.  

Sinema has shown some shilling for corporate lobbyists but has overall stayed loyal to the liberal brand.  She just co-sponsored the Respect For Marriage Act.  My general sentiment when hearing the news was "who cares?"   As to 2024, Democrats have a lot of other things to worry about.  I would, however, try to find a way to have her go along her way peacefully.  And, she already has framed herself as an "independent," so was quite honest when she said that in her statement.   

If she somehow truly becomes a pain, I'll change my views.  

I had some "someone is wrong on the Internet" annoyed reactions to some comments in that second link regarding Manchin.  Or, should I say a "somewhat more moderate" Democrat.  Okay.  Who is more moderate than Joe Manchin?  

Also, why should we not "vilify" someone who thinks he should veto what 48/49 of the Senate, the House, and the President support, and harm children and other people in the process for what amounts to be stupid reasons?  

As to him negotiating in good faith, I don't know. I recall that President Biden eventually released a statement that suggested he was pissed off.  Biden would not do that unless he thought Manchin crossed some line. Manchin also chose to announce his rejection of a deal on Fox News of all places.  He did various things worthy of strong opposition. 

The analysis (by a serious person, if one I found wrong in the past) notes at one point he is "no saint."  Oh well, no reason for me to dispute such a balanced take. There is also the general idea the problems are "progressives," some of whom (specifics not cited) do not care as much as Manchin for low-income workers.  Seriously?

The idea that sometimes progressives or progressive activists do not "level with" their base about reality might be true to some extent.  I have seen that sentiment in some places, including targeting Biden on the recent railroad worker agreement.  But, at the end of the day, progressives (such as AOC, my representative until the beginning of January) have compromised and gone along.

One [or two]  "progressives" did not think they were better than everyone else, deciding to veto the wishes of the rest of the caucus from the President on down.  Manchin did.  He as a whole remained loyal to the party -- the idea he would suddenly caucus with Republicans to me is stupid -- but on that point, I very well will "vilify" him.

Anyway, let Sinema be an independent along with two others in the Democratic caucus.  Let 2024 deal with itself.  I predict she will choose to find something else to do myself.  If not, well, again, there is a lot more to worry about than that.  

Respect for Marriage Act

The House (258-169) passed the Respect for Marriage Act after the Senate (61-36) did so. Now, it has been presented to the President, who likely would have some sort of signing ceremony. This is one of those bills that seem worthy of that sort of thing.

What is the purpose of this bill?  The basic concern cited is that after the Dobbs abortion ruling, the right to marry might be at risk.  Yes, the majority there (minus Thomas) assured us "only abortion," but that is something of a fool's bet.  This includes some specific marriage matters.

The Respect For Marriage Act does -- to the degree that Congress has the power to do so (simply stating there was a constitutional right of same-sex couples to marry would not work if the Supreme Court held otherwise) -- provides a safe backstop.  Also, again in a way that would pass Congress, especially with the filibuster in place, it sends a message to the Supreme Court.  

Finally, and quite importantly, it sends a message of equality overall.  This was a basic sin of the Defense of Marriage Act itself.  DOMA did not simply (it alone dubious) safeguard states from (the horror) having to recognize out-of-state same-sex marriages.  It singled out same-sex marriage as not marriage for the sake of federal law.  Even if a state decided to recognize it.  

Breaking Down The Law

What does the law (as it will be once Biden signs it or let's ten days, not including Sundays, pass) do?  From the title down, it actually is rather well done.  And, the "enrolled bill" (see link) is basically simple, almost fitting on a single page.  It could really, especially if you use a small font and smoosh it some.  Let's look at it.  There are eight sections.  

The first section simply provides the title. A nice and simple one. It respects marriage. It does not "defend" it by blocking same-sex marriage from the same development as various other changes in marriage have gone through. The "traditional" marriage bit is silly.  Do we want coverture, not allowing people to have sex outside of marriage, and divorce almost impossible?

The second section has three simple findings.  They are short enough that it pays to simply quote them in full:

(1) No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.

(2) Diverse beliefs about the role of gender in marriage are held by reasonable and sincere people based on decent and honorable religious or philosophical premises. Therefore, Congress affirms that such people and their diverse beliefs are due proper respect.

(3) Millions of people, including interracial and same-sex couples, have entered into marriages and have enjoyed the rights and privileges associated with marriage. Couples joining in marriage deserve to have the dignity, stability, and ongoing protection that marriage affords to families and children.

The first is a bit exaggerated (Prof. Melissa Murray has written criticism of Justice Kennedy's rhetoric about marriage in Obergefell).  Marriage is a mixed bag.  But, that is a fine enough sentiment.  

And, the second and third statements are framed carefully.  Even someone against same-sex marriage might accept the framing to some extent.  And, some who find opposition to same-sex marriage as bigotry might accept the wording too.  After all, "the role of gender" means different things. 

The next section repeals this provision:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

U.S. v. Windsor declared the provision as to federal benefits unconstitutional without doing the same regarding that part of DOMA, which was not at issue in that case.  

Obergefell did hold that as to "whether the Constitution requires States to recognize same-sex marriages validly performed out of State," the answer is "yes."  

It has long been recognized that the Supreme Court determines what "the law is," so Congress could not say same-sex marriage is protected by the Constitution and expect the Supreme Court to be bound by its say-so.  But, Congress also has power over full faith and credit (Art. IV).  

(1) full faith and credit to any public act, record, or judicial proceeding of any other State pertaining to a marriage between 2 individuals, on the basis of the sex, race, ethnicity, or national origin of those individuals; or

(2) a right or claim arising from such a marriage on the basis that such marriage would not be recognized under the law of that State on the basis of the sex, race, ethnicity, or national origin of those individuals.

This is the heart of the law.  Congress is doing a reverse DOMA here, using its power over the "manner" and effect" of full faith and credit in the promotion of equality.   No state or person acting thereof can violate those rules. The Attorney General of the United States and civil actions can be used to enforce the section.  

This seems to be constitutionally proper.  I do not think Congress actually, at least to this length, required states to do it.  There has traditionally been a right recognized for states to evenhandedly not recognize marriages that violated state norms. So, a state does not have to recognize an out of state first cousin marriage.  But, that has not been put to the test in the teeth of this sort of rule.  And, it would not even now, unless Obergefell itself is challenged.  

The next section provides a neutral rule to define marriages for federal purposes.  To skip ahead, it is noted (see Prof. Murray?) that the law doesn't affect rights arising from something other than marriage. So, if a state has a domestic union law, this does not affect the benefits involved there.  

Also, it doesn't recognize polygamous unions. Oberfefell noted that marriage between two individuals was a basic aspect of marriage.  Worldwide, and by a limited number of people here, this is discriminatory.  They support polygamy.  We are not there yet.  But, even here, the law and its history do not single out polygamy as "immoral" and such to the degree DOMA did for same-sex marriage.  

The last section protects the rest of the law if somehow some aspect of it is found to be unconstitutional.  Okay.  What about the remaining section, the "NO IMPACT ON RELIGIOUS LIBERTY AND CONSCIENCE" provision? Is this a little poison pill that we just have to bear given the rest?  Actually, I do not really think so.   

I think the first part of this section is enough:

Nothing in this Act, or any amendment made by this Act, shall be construed to diminish or abrogate a religious liberty or conscience protection otherwise available to an individual or organization under the Constitution of the United States or Federal law.

But, there is a continuing concern about religious liberty ("religious liberty" if you wish), including on controversial matters of this sort.  The provision reminds us that there already are constitutional and statutory (such as RFRA) protections.  A priest need not hold a marriage ceremony.

Again, let us look at the whole text of the second section, which some have argued is problematic:

(b) Goods Or Services.—Consistent with the First Amendment to the Constitution, nonprofit religious organizations, including churches, mosques, synagogues, temples, nondenominational ministries, interdenominational and ecumenical organizations, mission organizations, faith-based social agencies, religious educational institutions, and nonprofit entities whose principal purpose is the study, practice, or advancement of religion, and any employee of such an organization, shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage. Any refusal under this subsection to provide such services, accommodations, advantages, facilities, goods, or privileges shall not create any civil claim or cause of action.

This a long paragraph, but what is really at stake here? Does the provision really expand what is already protected? I have my doubts. If anything, I think it clarifies that possibly open-ended language should not be interpreted too far.  It is possible that the use of this more limited language in legislation can be useful in that respect.  Maybe so.  

Let's break that down.  First, whatever is done here has to be "consistent with the First Amendment."  If the demand is not so consistent, such as if it wrongly burdens third parties or favors some religions over others, it would not apply.

Next, the protection is cabined, if perhaps maybe as much as some might like.  First, it applies only to "nonprofit religious organizations," so the for-profit wedding web designer involved in the case heard this week would not apply.  

Also, "whose principal purpose is the study, practice, or advancement of religion" narrows things down some more. 

What is covered by that provision that would not otherwise be assumed to be covered?  The coverage of "services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage" might apply to a church or school that owns some property that they allow to be used.  But, again, it is "non-profit" etc.  

If a private school wants to only use its space for events that do not violate its mission statement, generally speaking, I would think they have a First Amendment right to do so.  The provision might bring within its ambit something that should not be covered.  I guess. But, really, what exactly are we talking about here? This is not Hobby Lobby or something. 

Again, IF some example crosses the line under the First Amendment, the provision does not even apply!  As a whole, I think it is even less offensive than I thought it was, and I didn't think it was that much at that.  

===

The Respect for Marriage Act is a good piece of legislation that is carefully crafted.  This is why some LGBTQ types strongly support it, including the leading sponsors, who check one or more of those boxes (or family members do).  

It should have passed before now, but glad it was passed now.  When the votes are there, such support for equality should be passed. The same is true regarding the right to choose an abortion.  

Supreme Court Watch

The Supreme Court Order List was not notable from what I can tell. There were also new court rules announced.  Also, not very interesting since even specialists do not seem to think the new rule changes are too significant.  

===

There were various notable Supreme Court related happenings.  There were a few oral arguments, including in two big cases.  

One thing that was flagged there was the "hot bench," including "nonsense" and rudeness.  Gorsuch was particularly an asshole, including the guy who went the extra mile to convince liberals he was a good pick.  Alito also was flagged for some stupid and distasteful comments.  

But, the liberal minded person noted that someone like Sotomayor also shows rudeness.  Sotomayor is known to be a tough questioner, who will not let something go, including when she thinks the argument is wrong.  As with Justice Jackson (who is starting to lecture a bit in her questions), this can be problematic.  OTOH, on a 6-3 Court, it can be an important way to get out a dissenting point of view.  And, she gets such cheers there.  

The ability of justices to be "hot" has increased with the extension of argument time (in practice, if not in official time allotted), including a chance for separate justice questioning (a continuance of the telephone arguments practice).  Thomas has consistently taken his turn, often given the opportunity to lead things off.  I think this is helpful, largely because he has important power, so advocates should be able to address his concerns.  He tends to be polite.  

The whole thing is complicated.  I think there is some value to air things out, including in a way for the public at large to listen. Some want it all done in briefing. There is plenty of briefing.  The oral argument provides a chance for the justices to air things out and engage. And, it is a way for the general public to listen in.  I think there is value to that.  

There’s no guarantee, of course, that this will be the eventual holding in Moore. There was sufficient skepticism at the oral argument that it is possible to envision this case ending like the 2020 “rogue elector” case Chiafalo v. Washington, in which a unanimous Court rebuffed a request to adopt a novel theory whose consequences for American elections would be enormously destabilizing. But if the Court does adopt some “compromise” position, the magnitude of that decision shouldn’t get lost in relief about what the Court didn’t do. A partial victory for the ISLT is still far more than the theory warrants.

The independent state legislature doctrine case generally was understood to have gone better for the side of sanity than maybe we might have expected.  Kate Shaw (the most optimistic one on Strict Scrutiny Podcast) suggests we should be somewhat warier.   She also wrote an article on the question with Leah Litman.  So, she has a special concern about this issue.

I am with her in that I think even the camel's nose in the tent can be a problem here.  I also think it is a matter of my expectation.  I basically did not think it would be that bad in the end, so the oral argument did not please me as much as some.  The oral argument itself to me was tedious.  It went on much longer than was necessary, largely to give different voices on the sanity side to get their say.  The net result was more nonsense. 

(ETA: A law professor more conservative agrees.)

===

The House Judiciary Committee had a hearing on Supreme Court ethics, including having the former anti-abortion rights cleric who accused Justice Alito of leaking Hobby Lobby details.  The coverage had this bit:

Paoletta, who clerked for Justice Clarence Thomas and has represented his wife, Virginia Thomas, in connection with the House Jan. 6 Committee probe, said it was absurd to think that justices like Thomas or Samuel Alito would be susceptible to pressure to be more conservative on issues like abortion rights.

Yeah okay.  Courts related (nominations especially), we also (thankfully) the sane and expected end of the Georgia run-offs.  Senator Warnock, who had five races (primary, special, full, and two run-offs) in two or so years, won.  This will bring a 51-49 majority, which gives Senate Democrats a clear majority in committees and so on.  

This will generally help to avoid ties in committee, which required a special discharge vote, often needing VP Harris to come for a tiebreaker.  This also took time.  This should speed things along.  And, with the House being controlled by Republicans in January, nominations (and investigations) will be one important thing for Democrats to have.  

[For instance, Trump's taxes finally did get sent to the House.  One can't trust House Republicans to truly investigate them.  They can be sent to the Senate -- preferably asap -- and the Senate Democrats could do so.]

===

Another Supreme Court matter was included in the National Defense Authorization Act.  Progressives like AOC opposes the NDAA, largely because it spends more money (like 45 billion this time) than the Administration even asked for.  The NDAA also (against the Defense Department's wishes) removes a mandatory vaccine requirement.  Well, for the COVID vaccine.  The military has to take numerous other vaccines.  

The thing is thousands of pages long, but Fix the Court and others flagged something that allowed a mechanism to keep certain information of the justices and their families private.  There is a valid concern here, with threats made though the problems are if anything more blatantly shown (including a judge and a judicial family member murdered) for the lower courts.  The House Democrats tried to apply protections wider in the past but failed.  As I understand it, the issue at hand only applies to justices.  

Jane Meyer (in a well-spread tweet) spoke of the provision resulting in Ginni Thomas' contacts becoming a "national security secret" or something. This is an exaggeration.  I followed Fix the Court's lead, and went to the section of the bill involved and found this bit eventually:

"shall not apply to display on internet of covered information of an at-risk individual or immediate family member if information is relevant to and displayed as part of a news story, commentary, editorial, or other speech on a matter of public concern"

I did not do a deep dive here.  I am open to the idea that the provision is too overbroad, even if a liberal law professor like Laurence Tribe assures us that he helped write it.  Nonetheless, this exception alone would seem to be reassuring.  Also, the rule seems to be mainly geared toward wide releases, such as displays on the internet.  In other words, it is not like a litigant concerned about conflicts has no right to flag the matter to the Supreme Court.  Overall, I think there has been some confusion here.  

===

This week ends the oral arguments for 2022.  There will be orders on Monday, after the final scheduled Friday conference of the year.  There are also two executions pending this month, so we should have one or two orders on them if only to reject final appeals.  So, see you next week. 

As a preview, here are some grants, basically non-controversial.

Sports Update: Welcome to NY, Kate Upton! Edition

Bills beat the Pats early. The Pats have four wins other than beating the Jets.

They did push Zack Wilson (5-2) out of the starting position. Mike White then beat the Bears (Wilson probably would have -- they suck and he won each time when not facing the Pats this year) and then lost to the Vikings. The Vikings kept on holding the Jets to field goals. The Jets (after finally getting a touchdown) had two times (the receiver just barely didn't catch a ball for the go-ahead score on the first attempt) in the last two minutes to go ahead. Close, but no cigar. 

The Giants faced the Commanders, who at this moment are about as good, and a tie (if the Giants lose against the Eagles, they will be tied in the standings too) sort of showed this. The Commanders went for it on 4th down fairly deep in their territory and eventually tied it with less than two minutes to play. They did not go for two (maybe rightly, since they didn't score when they got the ball back) for the lead. I wonder what they would have done with less time left (two teams did it successfully recently).

[Giants have a tough few weeks upcoming with the Eagles, Commanders, and Vikings before facing the Colts, who had some fight against the Cowboys last night before falling into a big pit -- over 30 unanswered points.]

I was clicking around and saw over the weekend a special report (one sports commentator noted the timing was a bit gutless on his part) that deGrom signed a big five-year deal with the Rangers. The latest nice boring white guy side-line reporter was like "well, the Mets were right not to take THAT deal [guy simply is too much a risk health-wise] and deGrom didn't give the Mets any expectation they would even give them a chance to match even if they were tempted." deGrom has been a stud, but has been out a lot, and didn't play much in the last 101 win season.

 So, he's not unreplaceable. This is suggested by the guy who replaced him -- Verlander, who signed on for a two-year deal of Scherzer-like money. The Mets have two older pitchers on the payroll for the next two years with a combined higher salary than the whole of the Rays. Such is what the market gets you, including an overpaid to seal deal bonus.

Oh well. Verlander won the Cy Young and all, so you figure he is the #1 now. But, long term, the Mets need to get some younger starters. They also have more needs, including filling their pen, another decent starter, and at least one big bat.  And, I hope Nimmo is back, but fear he won't be.  

Anyway, welcome to the Mets, Kate Upton.

ETA: There have been other happenings in Mets land, but most important, Brandon Nimmo will be around for a long time.  Did not really think (though I wanted him to stay) that he had truly arrived in the "eight-year deal" sort of category.  

Supreme Court Watch: Student Debt Relief

One trend is to have state governments join together to oppose major federal policies, including those of specific presidents. The efforts can be good or bad.

This includes the 5-4 case of Massachusetts v. EPA (2007), involving the standing of states to bring a case to require regulation related to global warming.  Federal courts accepting people to make their case (thus having a shot at the merits) has long been a battle.  

A major example would be the whole "qualified immunity" business, where someone cannot even allege harm because it is argued the law is too unclear that the alleged guilty party would have knew it was wrong or for some other reason such as national security. This might lead to total immunity and can be unjust.  Other times, people really should not be able get standing since they really don't have a relevant injury. 

(One more example here would be the contraceptives case in Poe and Griswold.   Also, there was an ongoing attempt to make it hard for abortion limits to be challenged, individual patients not likely to have the time to do so.)

States have been challenging the Biden Administration repeatedly, including his student loan forgiveness action.  Experts have basically said there is no real standing argument that is credible to challenge it, but some weak arguments were made. One won in the (of course) Fifth Circuit, including a national injunction (another controversial issue open to abuse).  

The Biden Administration asked SCOTUS to either lift the stay or grant the case for review.  SCOTUS after our last entry did #2 and set up a quick oral argument schedule.  Amy Howe summarizes:

The Supreme Court will fast-track a challenge to the Biden administration’s student-debt relief program and hear oral argument in February, the court said Thursday. The $400 billion program will remain on hold in the meantime due to lower-court rulings that have blocked the government from implementing it.

She also links an article to give us a sense of where things are. This is an important thing for coverage and analysis. Any given subject (let's say the latest railroad labor dispute) has various moving parts, including votes, the lay of the land, and the latest events. Amy Howe, for instance, notes that the Biden Administration "extended the pause on student loan repayments." What does that mean? From the linked article:

Payments will resume 60 days after the Department is permitted to implement the program or the litigation is resolved, which will give the Supreme Court an opportunity to resolve the case during its current Term. If the program has not been implemented and the litigation has not been resolved by June 30, 2023 – payments will resume 60 days after that.

Got that?  A key matter there is that the "extension" is not immediate. These things tend to be complicated. The results of Supreme Court rulings tend to be complicated.  For instance, listening to a video related to the depressing latest "legislative prayer case" (as Kagan notes in dissent, it is not a legislative prayer case), the aftermath sounds like it was more positive than the blunt result of the ruling itself suggested it might.  

(To take another more extreme example, losing a capital appeal at SCOTUS doesn't mean an execution necessarily.  Richard Glossip years later is still alive.)  

The big orals this week: the discriminatory website and the independent state legislature are prime cases that are likely to be messy.  The latter has received a lot of attention, especially the fear of an extreme version.  But, it is quite possible some middle way will be found that is still a problem.  Ditto the first case.  The case was taken, with a narrowed question, in part to seem "moderate" or "reasonable" but with poison pill implications.    

Amidst one of the most hostile legal landscapes for trans people in U.S. history, the first ever cohort of out trans attorneys were admitted to practice before the Supreme Court on Wednesday.

A case about the alleged right of a wedding web designer to discriminate against same sex couples makes this pretty relevant.  I caught it among the SCOTUSBlog daily news wrap-ups. It's a nice story. Clearly, trans attorneys were admitted before now.  This is the "first ever cohort of out trans attorneys." The article notes the liberal justices seemed to be particularly pleased for them.  

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So, the Supreme Court has some orals (two big) this week, and will on Friday have a conference.  Next week will have a scheduled Order Day on Monday. Then, they go on a a winter break.  There are two executions at this point (Idaho's cancelled for lack of drugs) scheduled next week. 

Two Books

Concerning My Daughter is a book I found out via a recent NYT review. 

The author, Kim Hye-jin, is a Korean author already celebrated for a previous work.  This one is short (160 or so pages, small sized book) though at times I thought it really could have been somewhat shorter.  The core message probably could have been made in a hundred or so pages. 

Overall, I am glad I read it, though it deals with unpleasant topics, including a detailed look at taking care of a someone with dementia, and prejudice. The book is told through the voice of someone in her sixties (she had her daughter at 31 and the daughter is "thirty something" now) in a precarious position, trying to survive in the home her husband (died a few years earlier) left her.  For whatever reason, she only has one child.

Her precarious position makes it understandable why she is so upset that her daughter has not chosen a more traditional life.  This includes being a lesbian, which is offensive to the narrator, but also just plain scares her.  Fear is suggested as a major cause of her prejudice.  After all, the woman her daughter fell in love with (Lane) is otherwise a very sympathetic character, the sort of caring person that the mother would naturally support.

The mother deep down has some of her daughter's sense of justice.  She is upset that her bosses wants her to lessen the standard of care for Jen, her elderly (must be around 80-85) patient, who once was a celebrated world traveling diplomat type.  She does not want to be told to just go along, which she tries to tell her own daughter, who is protesting mistreatment of lecturers at her university.  She risks her own job to help Jen.

The complex nature of the character helps make us sympathetic, even though she has prejudices.  This includes her own realization deep down that her prejudices are problematic.  It is like she tries to convince herself that she is just thinking of her daughter's own interests.  

Again, Lane, who is a caring type that repeatedly helps her, makes this even more complicated.  They are thrown together since the daughter (we see the other characters and their actions through the mother's eyes) needs to move back in with her mother for financial reasons. Lane moves in as well.  Lane's nickname for the daughter "Green" is the only name we are given for her.  Interestingly, the mother also generally is nameless.

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I read (I'm pretty sure) The Eichmann Trial by Deborah E. Lipstadt, who also was the subject of the fact based film involving her British libel suit (a Holocaust denier used the less free speech protecting laws there to sue, but she did win in the end).  She was recently appointed by President Biden in a role of overseeing antisemitism, her confirmation delayed in large part because Sen. Ron Johnson was upset she called him a fascist. 

Lipstadt dealt with Hannah Arendt's own somewhat infamous book on the trial.   Anne C. Heller (who recently died; she also wrote a much longer bio of Ayn Rand) wrote a short bio (Hannah Arendt; A Life in Dark Times) that I found by chance in the library.  I wanted to find something to hold me over until new books came in.  

I found the book a crisp (144 pg) account that covered the basics and gave a taste of her thought. I plan to include it as an entry on the Book Review website, but as always, it depends of the person who runs it posts it.