Leftover In China

I first learned about "leftover women" from Leta Hong Fincher. She wrote a book (tenth-anniversary reprint out recently) about them. She also wrote Betraying Big Brother: The Feminist Reawakening In China. I also went to a panel that she moderated.

My "about the author" summary gives a taste of her background:

Leta Hong Fincher is a journalist (she won the Society of Professional Journalists Sigma Delta Chi award for her China reporting), writer, and Seminar Associate at the Weatherhead East Asian Institute at Columbia University.  

She is fluent in Mandarin.  Her parents were Chinese scholars, and she spent much of her childhood traveling to China.  

Fincher was the first American to receive a Ph.D. from Tsinghua University’s Department of Sociology in Beijing.  She also worked at Radio Free Asia, Asia Television (1997–1998), CNBC Asia (1998–1999), and Voice of America.

Dr. Fincher is an academic. Her writings also have a certain muckraking feel to them. For instance, she wrote about the "Feminist Five," five Chinese activists who were willing to be arrested to protect gender inequality. She also argues that the current leadership in China is anti-feminist, arguing it advances their authoritarian style of rule.  

Looking for something else, I found Leftover In China: The Women Shaping The World's Next Superpower by Roseann Lake. The book was published in 2018, a few years after Leftover Women. It covers some of the same ground though takes a more "Sex in the City" type approach. Mixed in with a lot of informative material (including a chapter covering other Asian nations), we get the dating life of four women in particular.

One review compares:

Lake’s anecdotal approach contrasts with the more political work of Leta Hong Fincher, who has argued that the rhetoric surrounding leftover women is the result of a deliberate government campaign. 

Roseann Lake (going by her photo) is a white journalist, who spent five years in China. She later shifted to Cuba. I think the book is well-written and provides a helpful analysis of the material. Also, the book covers different materials in certain respects than the other book. Multiple books that overlap are useful. Different perspectives help.  

I was surprised that Lake did not cite at all Fincher's work. It is not that she was not aware of it.  She engaged with her years before publication. And, Fincher had done a lot of research on the matter. Lake's book references the feminist five in passing.  That book came later.  

So Hong Fincher was surprised to find that a major new book, Leftover in China: The Women Shaping the World’s Next Superpower (W. W. Norton & Company), doesn’t acknowledge her at all in its extensive bibliography. And it’s more than a matter of ego: Hong Fincher says the book’s author, Roseann Lake, a journalist who now writes about Cuba for The Economist, has been following her work since 2011.

The bibliography is two pages long. There are no endnotes. So, I don't know about "extensive." Nonetheless, I can understand why she is open about being "very angry" that a book that perhaps would receive more attention than her academic work did not reference her work. Academic works are extremely important though get a lot less love.

Roseann Lake's response is not very convincing:

When Leta’s book was released, I decided not to read it because I was working on the manuscript for my own book, and I chose to stay focused on the stories of the women whose lives I feature in it.

This is a non-answer to the concern that her scholarship was not cited. Likewise, the book was not just about "the stories of the women." The book also provided an analysis of the "leftover women" (women not married) situation. She read other stuff to help understand the situation. It seems like she also read work by Leta Hong Fincher. It was wrong not to cite it. 

I cannot without more determine what was going through Roseann Lake's mind or how much it was "calculated erasure." 

I will state that it is important not only to take advantage of the best research. It is also important to give credit where credit is due. I know that my own research, not comparable to people who are professionals, takes time. I am annoyed at people who cannot deign to do a bit to find things out or respect my efforts.

I do recommend Leftover In China. 

Note: One critical review notes "It’s too at odds with her story, which has so firmly cast her subjects as victims and not agents." 

I don't agree. The women to me repeatedly seem to be in control of their lives. They are partially victims. China is still sexist in various respects. But, the book shows the system has positive aspects too. 

Lake, for instance, notes an (unintended) result of China's one-child policy is that daughters were given a lot more attention.

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Tom Wilkinson has died. 

I have seen many films with this British actor. He has great range, able to play an elite noble judge in Belle (mixing truth with fiction regarding the interracial woman involved) and Americans like Ben Franklin (John Adams miniseries) and James Baker (in an HBO look at the 2000 recount).   

RIP.

Trump: For Now, Off in Maine, On in California

The Fourteenth Amendment provides the basic rules of birthright citizenship, the rights of citizens, rules of due process and equality, and apportionment requirements. 

(Note to Nikki Haley: The Fourteenth Amendment arose from the aftermath of the Civil War. The end of slavery, the basic foundation of the conflict, was not enough. More had to be done to protect blacks and address the defeated people who fought the conflict.)  

The third and fourth sections are more obscure though debt ceiling fights have made the validity of the debt provision more well known. Now we are talking about the insurrection disqualification rule. Last applied (dubiously) to one person for acts during WWI.

[Note: See here. A minor official was disqualified for his actions during 1/6. The disqualification was generally a preventive bar after the Civil War. It does not seem that many people actually tried to get around it, requiring enforcement actions.] 

Congress could have passed legislation (one or more bills were posed) to provide some clarity, including a means for the attorney general to bring action to enforce it. None were passed unlike a move to address the counting of electoral votes. So, we are left with competing state actions. 

After the Colorado Supreme Court kept Trump off the ballot, the possibility of a Supreme Court review seemed much more likely. A few other state courts went another way. The matter is complicated by different state laws, including when (primary or general election?), who (courts, the secretary of state, or someone else), and how (what sort of process?) to challenge someone's right to be on the ballot. This will result in different results.

Lawfare has a convenient tracker. The last two state results provided conflicting bottom lines. The Maine Secretary of State (chosen by the legislature) applied state law in a well-argued (IMHO) opinion to keep Trump off the ballot. She also disposed of a trivial (if amusing) argument that Trump is barred by the 22nd Amendment since he claimed to win twice. Meanwhile, California with different rules went another way.

Note that the states that so far said Trump can be on the ballot did not firmly say he is qualified for the general election. The issue at hand is the primary ballot. Also, the dissents to the Colorado ruling split on their rationales. It is possible that some other process would be satisfactory. 

Some liberals are somewhat unexcited by the Maine ruling. Let it be noted that it is not final. The Maine Supreme Court might overturn it. I think saying it is "defensible" is damning it with faint praise. As to its value in the big picture, life is a matter of a million pushes and pulls. It also should be noted (like Colorado) that the January 6th Committee's report played an important role. For those who poo-pooed its importance.

I think it is appropriate and at least somewhat helpful. Make him seem legally tainted. And, this time it is not "the courts" but a representative of the legislature from the state with Susan Collins as a senator.  Let's avoid 14A, sec. 3 stupidity. Plus, it is not about "Democrats relying on this." OTOH  it is part of the Constitution. Maybe, sometime, a provision (see also, emoluments, impeachment, oath requirements, etc.) will count. 

No specific Supreme Court news to report for this week. The Chief Justice's End of the Year report should drop during the weekend.

Where did 2023 go? Is it 2025 yet? 

Blondie's Anniversary

This weekend's Blondie movie was Blondie's Anniversary. The film overall was okay but rather dark. 

Dagwood, who forgot about their anniversary, takes home an expensive watch. The watch was intended as a gift to the secretary of a potential client (who was in a previous Blondie film). His boss figures the secretary would pass on a good word. She is taking advantage of both companies' bidding, eventually helping those who give her the most.  

Blondie (of course) mistakenly thinks the gift is hers. Dagwood tries to replace it with a cheap knock-off, getting into debt with a loan shark (played by familiar comic actor William Frawley, who was also in a previous film, playing another role). His attempt discovered, Dagwood's boss (at this point in the series, no longer Mr. Dithers) fires him. Given his previous hijinks, this would not be that unjust of a thing to do.  

Meanwhile, the other company turns out to be con artists. They need plans to place the bid, so hire Dagwood, who needs money to pay off that loan shark. Blondie found out about the watch but Dagwood's boss (if somewhat upset at himself) did not give him his job back after she gave it to him.

Dagwood finds out about the con and saves the day. Meanwhile, the client (a banker) tells him not to pay exorbitant interest. And, showing the guy has some talent, it turns out Dagwood's plans are better than the ones provided by whoever drew them up for his old boss. Needing the client, his boss (at a pay raise -- you get the idea it goes up and down periodically) gives him his old job back. Plus pays the debt.

The film ends (the very last bit cut off when I DVR-ed it) with Dagwood giving a long-winded paeon on how wonderful Blondie is. And, noting it was their fifteenth anniversary.  The secretary gets her comeuppance, the expensive watch and brooch taken back from her. She quits, presumably to find some other mark in another town.  

Thus, we have Dagwood out of work, both companies in some fashion trying underhanded tactics, a loan shark, and overall (though things work out) not a great observation of human nature as a whole. 

As a "comedy," again, it was somewhat dark. These films repeatedly have Dagwood having some major money problem or something or other, but I think this time, it was darker than usual. 

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Happy Holidays. Remember, it isn't just for Christians! 

(I did not see any really notable holiday films in the last few days. I did see a summary of Hallmark and Lifetime Channel films which noted one of them had Kwanzaa content. Checked that box!) 

SCOTUS Watch

O'Connor

Justice O'Connor laid in repose (public allowed) and there was a (private) memorial service. Kennedy was there, but for whatever reason Breyer (who usually pops up in public ceremonies) and Souter (more private) were not present. William O. Douglas' fourth wife (now around 80) did come.

(Live video was available on YouTube for the memorial service, if not via the Supreme Court website.)

New Legislation 

Steve Vladeck, who has been involved in this area of law, noted:

But no one in the media appears to have noticed that one of the provisions in the 973-page [defense] bill would also reform the Supreme Court’s statutory jurisdiction over courts-martial—so that the justices’ ability to review a military conviction will no longer depend upon whether the Court of Appeals for the Armed Forces (CAAF) had itself chosen to hear that case.

(Meanwhile, President Biden expanded the reach of his earlier marijuana pardons. Good. 

He only handed down eleven other clemency actions. Not as good. We need a broad reform of the pardon system given the state of our criminal justice system.) 

More Thomas Grift

ProPublica has yet more on Clarence Thomas' grift, here involving complaining about not getting paid enough. I question how serious any threats of retirement were. Did he really want to suddenly try to make money as a normal corporate attorney or something?  Still, it does appear to be an important early link in his dealings with billionaires and such.

Insurrection News 

As a Trump criminal case was briefed, the Supreme Court has a new thing to worry about. The Colorado Supreme Court has decided (state law plays a significant role) that Trump is illegible to be on the ballot because of the insurrection provision. 

The general conclusion is that SCOTUS now has to take the case. The ruling is not that surprising after the district court held that he committed insurrection. 

It dodged disqualifying him by holding a president is not an officer covered. The logic would seem to cover vice presidents, including John Breckinridge, a Confederate general.  It's a silly argument. 

For those who are saying Democrats are behind this, the challenge involves those eligible to vote in the Republican Primary. There is a big "to be continued," including perhaps other state courts. 

Overall, there are many different aspects to this case. It is a good idea to break down the argument and look at the different aspects. I did that in the past so won't do it here. 

Meanwhile, for now, the Supreme Court did not grant the special counsel's request to decide Trump's (extremely weak) immunity claims before judgment. The court of appeals scheduled oral argument in early January.  

Environmental News 

SCOTUS is already starting to schedule things for February 2024. They are holding a rare argument to determine if a stay should be granted regarding an environmental regulation. 

Maybe, Steve Vladeck's shadow docket talk is moving the need or something. Why February? Well, there might be some new Trump stuff to deal with in January.  

Up Next 

The next official thing is the end-of-year Chief Justice report on the judiciary that drops on New Year's Eve. 

Winter Solstice

The most recent Freedom From Religion Foundation t.v. episode in honor of the winter solstice (which occurs later tonight) is here. It has some beautiful images. Kudos to the people who put it together. 

I would caution that the Christmas display segment might be somewhat out of date with the "history and tradition" cases of late that allowed public displays involving crosses. The Supreme Court striking down some lower court that allows a government creche display is a bit unlikely today.  

Greet Andronicus and Junia, my fellow Jews who have been in prison with me. They are outstanding among the apostles, and they were in Christ before I was.

The Lost Apostle is a very interesting book by a reporter/speechwriter. The book was motivated by a reference among the greetings by Paul at the end of his epistle to the Romans. Was Junia an "apostle"? Why did many people (and bibles) later say it was a man's name? What does this tell us about women's place in the Christian movement and Christianity today?

The book does a deep dive on this and many other questions. The author writes as a non-scholar, who is a faithful Christian while still be a reporter with a "trust but verify" mentality. Nice to know as well, even though the author photo suggests she was not too young and it was published over fifteen years ago, that her website shows she is still alive and well.

(I am a bit wary at such a non-specialist writing the book. Nonetheless, she has done her homework, including getting interviews with multiple scholars. She even met with Vatican representatives.)  

Our sources provide tantalizing bits and pieces about many of these questions. The exact wording of the verse alone is unclear. Was Junia an "apostle" (which did not just mean the twelve) or someone especially honored by them? OTOH, even that one verse has multiple details. 

Women did play an important role in early Christian churches. The New Testament includes multiple women (including Mary Magdalene) who had significant parts in events. We are teased by limited references, including to someone like Phoebe (not Buffay) with whom Paul entrusted his epistle. 

Happy Holidays!

Weekend Watching

Football 

The expansion of football to a Friday game after Thanksgiving (Jets) shows how networks and the sport want to stretch things. After all, last season, an additional game was added to the schedule. We also have the Thursday game not on regular television. This is also the case for many baseball games these days.

The usual schedule (at least for some time now) was that in December there were more Saturday games. I'm unsure if it came this early, but this weekend had three Saturday games on NFL Network. One (between the back-ups of the Vikings and Bengals) was even competitive!

There are some good back-ups in the NFL. Many teams now are playing back-ups. There is a mixture of talent. The Jets have a backup (who had a dubious game, somewhat mercifully shortened by injury) who teases you with occasional good games. 

The Giants' backup is a replacement-level sort that seemed safe but was mediocre in the limited time he played. The third string guy is a nice story. Came back to earth versus the Saints. The Giants are about to begin a killer final run with two games against the Eagles. 

The Jets are eliminated (no more fraction of a percent chance).  They were not going to beat the Dolphins, but the hope was that it would have been a tad more competitive than THAT. They have two more very realistic shots at a win versus the lowly Commanders (who show enough fight that it's no gimme) and the Pats (who the Jets have yet to beat for a long long time).  

San Franciso (after a mid-season three-game losing streak) has the division sewed up already. And, many races will likely go to the final week.

Christmas Films 

Last Sunday, I referenced a collection of holiday novellas, including one by Debbie Macomber. 

Macomber's book Trading Christmas was made into a Hallmark Channel film. I enjoyed it. I enjoyed it so much that I watched it for at least the third time this weekend.  

One thing I enjoy about it is the multiple storylines including one with Faith Ford (then in her late 40s) which feels more mature than many Hallmark Channel films. The multiple kissing also is rather risque for that channel.

The cast is also made up of various people who are known for other more serious or quirky works than Hallmark Channel films. Tom Cavanagh and Gabrielle Miller played the second couple in this house swap film (2011). They add to making the film not feel much like a Hallmark Channel film as such. I didn't see it on television so borrowed it from the library. Check it out if you can.

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Friends & Family Christmas has a Sunday night premiere. It has a somewhat generic title. "Family" does play an important role, including the POC retired parents of one love interest who was a college roommate and the father of another love interest. 

The parents do play an important role. One couple has significant air time. The bits about a long-married couple engaging with each other are handled nicely.  I did not catch what happened to the mother of one of the love interests unless I missed it. The ending wrap-up was rather forced.

The special hook here is that the film is a full-fledged lesbian love story. That is, the lesbians are not just one subplot, but the main story. The familiar face is Ali Liebert (who played a lesbian in the Canadian television series Bomb Girls; she is openly gay), who has also done some directing.  

(I have noted in the past that Hallmark has actively tried to be more diverse in recent years. Multiple films have had gay and lesbian content, including in the primary storylines.) 

The film as a whole was pleasant. Ali Liebert's performance just seemed off to me. I suppose her emotionally restrained performance fits the character's story arc of someone who has yet to get over a failed relationship. Nonetheless, she seems rather stiff and made up in an unattractive way.  

The couple does have some chemistry. I don't think the film gives them enough interaction to underline that they are falling in love. Maybe, it is a question of too many things happening, including a somewhat overbearing supporting character getting more air time than you might expect. 

Overall, I was somewhat disappointed with the whole thing though it was watchable and overall flowed fairly well. Plus, again, the parents (less so Ali's father) were interesting characters in their own light. The additional touches there made the film interesting. There are so many of these films out there. If a film has interesting touches, they stand out. 

Also, the film actually took place in New York City (though we didn't see much of it). Most of these films take place in small towns or something.  

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Catchy TV instead of the usual "binge" had a bunch of Christmas-related content, including Fonzie getting a present from his long-lost dad.  

Coming soon: a re-watch of the charming The Muppet Christmas Carol. 

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To keep things up, the Blondie film was Blondie In The Dough, which is a fitting title (often they are bland and not very plot specific) since she started a cookie business. 

I saw parts of it, after seeing a bit of it when it ran once before. It has the usual aspects, including a collection of storylines that come together. Decent entry.  

Virginia Supreme Court Rules For Teacher Who Refused To Use Student's Preferred Pronouns

In Vlaming v. West Point School Board, (VA Sup. Ct., Dec. 14, 2023), the Virginia Supreme Court, in a 4-3 decision, held that a teacher who was fired after refusing for religious reasons to use masculine pronouns in referring to a biologically female student has a claim for violation of the free exercise provisions of the Virginia state Constitution. The majority, in a 73-page opinion, held that the Virginia Constitution requires greater accommodation than does the First Amendment of the U.S. Constitution when a neutral law of generally applicability conflicts with a religious belief.

Religious liberty is a basic fundamental right. Constitution and statutory means, including state and federal Religious Freedom Restoration Acts (RFRA), provide various ways to address the question. It results in a lot of debate and confusion. 

The Declaration of Independence references God, using various language that has somewhat of a deistic tinge (not all of the expressions suggest an above-the-fray clockmaker type deity). The Constitution, to the chagrin of some (compare the Confederate Constitution and various state constitutions), does not. The only reference is the date ("the year of our Lord"), which is as much of a "date stamp" as a part of the document. 

The Constitution blocks any religious test for any federal office. Many people at the time argued that this had a bigger meaning than we might provide. No religious test meant a general principle of separation of church and state. As with other extreme language (First Amendment with its "no law"), this was not meant to be taken totally literally. Thus, we had oaths in court though even there note that ability to "affirm" in the presidential oath ceremony. Still, Congress has a chaplain and so forth.

The First Amendment speaks of "establishment" and "free exercise." We had a range of establishment cases in the Supreme Court, especially involving school prayer and funding issues. Free exercise challenges led to many fewer cases. A few upheld the right to obtain unemployment benefits if you cannot work for a religious reason (work on your Sabbath etc.). 

A blatant religious exception was rather rare. The one main case involved Amish children not going to school for a couple of years. It was a bit of an outlier, and I don't know why an Amish school accommodation wasn't available. It was a 6-1 (partial dissent) opinion with three justices stating it was a limited case and expressed some concern for exposing students to more education. It was not the start of a bunch of exemption wins on the Supreme Court level.  

The issue of religious schools is a special category. Cases in the 1920s held that parents could send children to non-public schools. Education is a special aspect of religious faith. It inculcates faith and forcing parents to send their children to school against their religion provides a daily difficulty. Bottom line, especially since the Amish are seen as a unique longstanding group who live separately, Wisconsin v. Yoder only tells us so much. It is as much about "living your own life" as a religious case.  

The right to use peyote as part of a Native American religion was not accepted as a constitutional right. The federal government had an exemption and some states did too. So, it was a somewhat curious case for the Supreme Court to establish a firm "no exceptions" for general law precedent.  Either way,  this led to a federal law (RFRA) that ultimately required religious exemptions to federal law even if religion was not targeted. States often have their own RFRAs.   

Let's move back and consider what free exercise means.  

We can summarize the various categories. There is a freedom of belief, freedom from coercion (including indirect coercion such as pressure to pray at school), no discrimination among religions (trickier these days when "discrimination" turns out to be rather neutral laws, even if certain religions -- along with a lot of other things -- might be burdened somehow), and "freedom of the church" (a sort of religious association, including such things as hiring the teachers at a religious school who follow the faith). 

These categories are generally agreed upon though people debate the details. For instance, is a voucher program that allows government funding for religious schools a type of forced funding of religion? What sort of compelling need (such as child welfare) should be required before religious groups should be restrained even among their own members? 

On the other hand, religious belief involving education, preaching, and various types of ceremonies that involve some sort of action is not too controversial. Compare a place like France, where the wearing of religious garb (including full covering favored by some cultures) in public places can be controversial.  In the United States, wearing a crucifix, yarmulke (the military allows it in various cases), and so on is deemed protected.

A few people believe in absolute separation of church and state. These are the sorts of people who often want churches to be taxed more. Nonetheless, some sort of religious exemptions have always been understood to be part of religious liberty. Some "play between the joints" is not seen as an establishment. An example would be conscientious objection statutes. 

The tricky thing is when to require such exceptions. The peyote case (Oregon v. Smith) was a tricky one. The case in my view could have been decided narrowly (the state court went that way) to provide unemployment benefits when a person is fired for peyote use in a religious ceremony. The fact that drug counselors (!) were involved might have provided another way out. 

The fact peyote was technically a crime (which the state basically showed no concern about) alone did not warrant denial of unemployment benefits. It also is used as part of a religious ceremony, which is a special core of religious liberty. Of course, we cannot apply such a rule absolutely or things like poisonous snakes or throwing widows on funeral pyres might be acceptable. An early case involved polygamy.  

Consider the case excerpted at the beginning of this entry. I do not think we need to go all one way or the other to decide the matter. The dissent argued as its strongest point that religious liberty is not about special exemptions. This might theoretically be a reasonable idea though it never was used literally. Oregon v. Smith suggested accommodations could be applied legislatively.  We can also include a strong application of "rational basis" to help avoid "neutral" laws that aren't really neutral and burden religion.

The dissent also dealt with the compelling interests involved here. First, public employees have fewer rights to freedom of speech in the course of their employment. It is not a "private" realm as compared to a religious group meeting at a church or at home.  Public/private is a sound division here. This is why public accommodations are appropriate for civil rights laws, even if they clash with certain religious beliefs.  

More importantly, the regulations here protect trans people. We can respect, more than various other things people might care about, the religious beliefs of schoolteachers. For instance, if they wish to take time out to pray or do not want to take part in certain school ceremonies that clash with their beliefs (I'm thinking of play where any specific teacher isn't required or perhaps an event involving non-kosher meat).  

The fact a school regulation is neutral (again noting that sometimes they really are not; for instance, even secular France still has some religious flavor) alone need not be the test. Again, some nod to religious accommodation can be provided. Religion is a special aspect of human society, including our own. "Religion" again in my view should be applied in an open-ended fashion.  

The problem arises when the accommodation harms others. No accommodation is likely to literally not affect others. Nonetheless, some are truly burdens. A company not providing health care benefits (the Hobby Lobby case) that regularly is provided (opening up burdensome workarounds) is an example. Civil rights laws are a prime example. 

A schoolteacher being required to use the preferred pronouns of a student is burdened when that clashes with the teacher's beliefs. Nonetheless, there are certain requirements to be a teacher. A science teacher might have to teach evolution, even if they are a creationist.  Various religious beliefs of students might be offensive to people. A teacher cannot make an issue of it in class because their beliefs counsel them to evangelize.   

As noted above, public employees have less speech rights than those in private contexts. This includes the ability of the government to compel speech, which is usually a constitutional no-no. The rule here has a compelling purpose to promote the constitutional principle of equality. This is not a perhaps sound policy choice akin to a range of things. It involves a fundamental right that is there along with religious liberty.

Litigation is ongoing to push the idea that abortion rights in various cases can be a matter of free exercise. I am sympathetic to this concept though am concerned about the open-ended nature of the principle. What helps is that it is a balance of things. Abortion involves equality, privacy, and fundamental questions that at heart are matters of conscience. Picking and choosing is also a type of establishment of religion.

Important things tend to be complicated. You will find certain basic truths. But then it gets complicated. No wonder this blog has so much content. 

Bill of Rights Day

On December 15, 1791, after years of debate and deliberation, our forebearers ratified the Bill of Rights. In doing so, they forever enshrined the fundamental rights and liberties we hold sacred as Americans and set in motion the greatest self-governance experiment in the history of the world.

- President Joe Biden

The ratification of the Constitution worried many people. 

They had received independence from an overbearing distant power less than a decade ago.  A new central power with a powerful executive and a novel new Supreme Court was formed with so much more authority. And, this one was right among them.

A blatant deficit was the lack of a listing ("bill" here means a form of list) of fundamental liberties. Some people, including Alexander Hamilton in the Federalist Papers, diminished the need. The Constitution was a creation of "We the People," who voted for congressional representatives and (in some form) the executive. It was a document of limited powers. 

Anyway, the Constitution already had a variety of rights, including a right to a jury in federal criminal cases (Art. III). Okay! Why not add some more, including all the essentials such as religious liberty and free speech? 

James "the Father of the Constitution" Madison led the way. He was previously not very gung ho, but saw the way the winds were blowing. His pal Thomas Jefferson was a big supporter. Madison made it a campaign promise, one he kept when he became a member of the House of Representatives. He supported a Bill of Rights. 

The original two amendments involved the size of the House of Representatives (never ratified) and congressional pay (ratified in 1992 [sic]). The others underlined that a "republican form of government" did not just mean voting for our representatives. It contained basic individual liberty and restraints on the government. Likewise, the amendments gave the people a special role, including protesting, being part of the body in place for the common defense (militia), and serving as jurors.  

The Supreme Court took away a constitutional right from the American people, denying women across the Nation the right to choose, a right that had been enshrined in a half-century of precedent.  In recent years, more than 20 States have passed laws that make it harder to vote. A wave of anti-LGBTQI+ bills is threatening Americans’ freedom to live openly and authentically.  As a Nation, we have a duty to oppose these regressions and defend the values represented in our founding documents.

The Bill of Rights reflects that citizenship includes rights and responsibilities. The understanding today is that the Second Amendment is about individual ownership of weapons papers over the original understanding of a militia, made up of the people, as a balance against a dangerous select group of people running the military. The forgotten Third Amendment underlines that civil power is supreme, not the military.  

The Bill of Rights also underlines the dangers of the criminal justice system. A large chunk of the first ten amendments (with an interruption for civil juries) protect those who engage with the police, the courts, and the penal system. On the front, we might have an execution by nitrogen gas soon. 

The Ninth Amendment reminds us that many rights are not expressly granted in so many words. Where, for instance, is there explicitly a right to travel, choose your own job, or marry? Later amendments, which can also be understood to be part of the Bill of Rights, ended slavery, protected equality, and expressly gave people national rights that states had to protect.  Cases such as Dobbs unjustly disparage such basic freedoms. 

Hamilton and others warned about the limits of "parchment barriers." A fair warning. This does not erase the value of writing down what is important. A wedding ring is not a magical amulet. Nonetheless, it is an important symbol with real force. If a person sees another person with a wedding ring, they are likely in various ways to act differently. 

The Bill of Rights does more. It is not like the U.N. Declaration of Human Rights, an advisory statement of universal truths. (December 10 is Human Rights Day)  I wish not to belittle the importance of this document any more than the Declaration of Independence. Nonetheless, it alone is not a binding document for the world.  

The Bill of Rights is an official part of the law of the land. It has the force of law, is defensible in the court of law, including subject to civil penalties when violated. Cynics will speak of how many people have their rights trampled. How we live in an unjust and unequal country. Fair enough. Up to a point.  

Our rights still matter. They still have bite. We do have an obligation to remember and honor them. We should not only remember that when we vote or serve in some governmental role. No. Our rights are important generally. They also regularly involve basic values, including religious liberty, which do not require government action to be essential.

People are not likely to think about such things too much this time of year. It is the time of Christmas, Hanukkah, Kwanzaa, and other holidays and celebrations. Nonetheless, it fits well among these. Hanukkah honors religious liberty.  Kwanzaa (more on that later) is a special day to honor African-American heritage.  Equality is essential there.  Christmas is based on the idea of justice for all of humankind.  

I hope you had a nice Bill of Rights Day. 

SCOTUS Watch: More Orders

Mifepristone

The Supreme Court released the expected order list with additional grants. The most notable involves the abortion pill cases that have played out in the Fifth Circuit. Two issues are involved: rules regarding use and a more expansive request that would turn the clock back over twenty years. 

The Fifth Circuit pared back the breadth of the district court case regarding access. The other case was blocked. The Supreme Court did not grant the request to take the broader case. It might have purposely emphasized the point by singling it out as the one case on the order list that was not accepted. 

(The Supreme Court regularly does not explain itself in its orders or at best writes very little, leaving a lot unsaid. It is left to lower court judges, advocates, and the press to "read between the lines" as appropriate. This includes choices regarding what cases to take  and what questions to decide.)  

The federal government asked them to review the access case (or it would have gone into effect). They did so. One analysis summarized:

Mifepristone and other abortion pills account for half of abortions in the United States and mifepristone has been safely used by over 5 million people since its FDA approval. Which is not to say there have been 5 million abortions. Drugs like mifepristone are often prescribed by OBGYNs to manage miscarriages which have already begun naturally.

If the decision is upheld, the drug could no longer be delivered by mail, even in states like California or Massachusetts where abortion is legal. It would have to be prescribed by a doctor after three medical appointments and only up through the seventh week (right now it’s available through the tenth).

I agree that "decisions of faith, personal autonomy, health, and family planning are private."  The author of the substack also wrote a book on the first cabinet. Suitable reference to Bill of Rights Day (12/15/1791 was when it was ratified). 

More On Dobbs

Underling that SCOTUS news comes even when nothing new is expected, there is an extended "behind the scenes" article on the Dobbs opinion. 

The NYT "drew on internal documents, contemporaneous notes, and interviews with more than a dozen people from the court — both conservative and liberal — who had real-time knowledge of the proceedings." Good to see leaks stopped. 

One notable bit is that Barrett did not vote to grant cert. Breyer was willing to vote with Roberts (15 weeks ban okay) if held the line from overturning Roe. Before the justices (5-4) refused to hold up SB8, the Texas law that foreshadowed the end of Roe, Sotomayor wrote “What a pity that we cannot do the right thing,”

Yeah. The abortion pill case underlines -- going against social consensus -- how far ahead of the public the Supreme Court could be these days. These cases are a result of Dobbs v. Jackson. My feelings about stripping fundamental rights away are still raw. Imagine how those directly affected feel. 

Oh. Can't leave out (given my hobbyhorse) that Gorsuch and company [Kavanaugh ultimately disagreed] were ready to stop all opinion announcements, including dissents from the bench. Gorsuch is singled out as thinking it would promote public respect. Ha ha. Breyer wanted to have an oral dissent in Dobbs. They did not have them given COVID protocols.

A lot of "Alito leaked" takes too. The article reaffirms (at least in effect) that the leak helped stop any last-ditch Roberts/Breyer compromise.  The loyalty of clerks to liberal justices makes it hard for me to suspect a liberal clerk did it. Breyer and likely Kagan would clearly strongly oppose the tactic. Sotomayor is also no major rule breaker either. 

Abortion was the "white whale" for Alito and Thomas. Thomas has a modicum of respect for Court culture. I think Alito > Thomas is fair odds. I also think more than the Politico people involved in the release know, perhaps this piece's authors.

I understand journalistic concerns here. It does aggravate me that we do not know. If we can leak a draft opinion, it might be time to expose the leaker. 

Other Grants 

The Supreme Court also granted other cases, including a capital matter. 

One petition involves a January 6th defendant, which has some implications for Trump's prosecution. Nonetheless, it looks like they purposely took a narrow case, and it should not be a problem regarding the Trump prosecution. 

Meanwhile, Thomas should recuse.  He can consider the matter as the briefing in the Trump immunity case continues. We might see more action there before the end of the year.  

Second Amendment

Supreme Court also refused to block Illinois’s ban on assault weapons and high-capacity magazines during litigation. No justice said a word of explanation. The court of appeals already upheld the law and rejected a request for the full panel to hear the case. 

So, the law can go into use with the challengers only left with the hope the Supreme Court grants cert through the normal process, which would at least take things into 2024 and perhaps beyond. 

The Supreme Court has taken a case involving carrying guns outside the home. It has recognized a right to own handguns in the home. It has yet to show much interest in dealing with assault weapons or whatever gunsplainers want to call them.

We have to pick our spots for optimism and sanity these days. 

==

Next week concerns honoring Justice O'Connor. The Senate unanimously voted on a bipartisan resolution:

A resolution acknowledging the lifetime of service of Sandra Day O'Connor to the United States as a successful Arizona State Senator, trailblazer, expert collaborator, educational advocate, and one of the great Justices of the Supreme Court of the United States. 

There also is the holiday party. Meanwhile, I will continue to keep track of things.

One more tidbit. At the end of the tax case that Alito did not recuse from, Roberts accidentally started to say the "case is dismissed" (see here), which was edited out (see here, where you just get the "uh" where he caught himself).

Little petty thing that is gratuitous. 

"House passes resolution condemning testimony by university presidents over antisemitism"

An update to Rep. Elise Stefanik's trolling of three college presidents in a hearing entitled “Holding Campus Leaders Accountable and Confronting Antisemitism." All three presidents are women. 

One was pressured to resign. Now, a bipartisan (303-126) House resolution not only "condemned testimony" (and antisemitism generally), but firmly said: "Whereas President Magill has resigned, and the other Presidents should follow suit." Since many news articles (and so on) find it hard to include vote counts, which are quite important when they are not simply normal partisan splits, here is a link (it isn't that hard people) to the vote.

My last blog post (see first link) underlines that this is based on trolling and confusion. This is not about presidents allegedly (cf. Popehat discussion) explaining themselves poorly. This is the use of hysteria, including the censure of the one Palestinian-American member of Congress based on bullshit. And, now Congress advises colleges to fire people or "suggests" they resign. 

An abuse of power that not only my hard right on Israel representative signed on to but the f-ing minority leader (unlike Pelosi). What the hell is wrong with you?  This is the same person who opposed the New York Senate (finally) stepping up regarding the control of the New York Court of Appeals. 

If a consistent liberal runs (doubt it), I'll vote against Rep. Torres in the primary unless I get AOC back with new re-districting scheduled. As to the minority leader, he comes off as too partisan for me, and at times not liberal enough. He appears to run the caucus well (from what I can tell) but he's not Pelosi.  

Does this mean there is no anti-semitism, especially now that Israel's reply to Gaza is so over the top that even President Biden is starting to really push back? No. This doesn't mean that we should look the other way in the face of anti-semitism, any less than we should look the other way in the face of attacks of Palestinians. 

I have not parsed the testimony. Maybe, they "should have known" or be more scripted (as if conservatives would not have latched on to something, like labeling opposition to settlements "genocide") or whatever. A reasonable hearing could have aired out the concerns while presidents made their case. Certain members of Congress would troll some. Fine. 

The resolution and soundbites (getting some "I dislike her but" replies) is trolling. Again, this is expected with this House of Representatives. Nonetheless, this does not require over eighty Democrats, including the minority leader, to sign on to the resolution. A resolution that is not just a statement agaisnt anti-semitism or supporting the right of Israel to exist. 

A non-binding resolution is for show. But, the breadth of support here (as compared to the around twenty against Rep. Rashida Tlaib (which is offensive since it's a fellow Democrat) is notable enough to underline how wrong it is. 

Policing Pregnant Bodies

There might be a book summary of this book on a companion website. There already is a summary of a book concerning the roles of women in medieval times, which overlaps this one to some extent. See also, Skimmed, which has some overlapping themes. 

An NPR interview involves a discussion of the book, including her concern for the "bun in the oven" metaphor. As an aside, it can be quite useful to contemplate common sayings and expressions. Expressions such as  "chickenhearted" are directly covered in this book.  

I enjoyed the book overall. It is not a comprehensive account by any means (it specifically says so), especially with a focus on Western viewpoints. This is acceptable and appropriate (up to a point) when examining our own views. Nonetheless, it would be interesting to read about African and Asian views on this subject, if any conflict, which I'm sure they do somehow. 

I also was annoyed at the suggestion that it was a myth to say a glass of orange juice is cheaper than a can of Coke. A can of Coke in a store is about a dollar. Maybe, you can get one cheaper if you buy a pack at the supermarket. But, a half gallon of orange juice has eight servings. How much does she think it costs?  Eight dollars?   

(I question the idea that a Big Mac is cheaper than a comparable serving of lean chicken too, except perhaps as a matter of raw calories.)  

The book has an interesting discussion of the soul, particularly philosophical understandings of its role as a "life force" in living things. Also, there is a discussion on beliefs involving embryology, which provides an interesting examination of previous thought. 

Overall, she argues that focusing on the fetus with the woman as a "vessel" (the whole bun in the oven concept; bread is largely prepared before being placed in the oven)  still influences today's understandings and public policies. Ditto the ancient view of the heart as the location of the soul (or the emotional part that is a basic part of humanity; Vulcans have a rational soul; humans have emotions)  regarding fetal heartbeat laws. 

There is also a basic lesson that we should trust women. Historically, women were deemed untrustworthy creatures, who could not even manage to tell you when they truly became pregnant. They also had inferior bodies as compared to men. The fact they had a "bun in the oven," perhaps fueled by menstrual blood (potentially poisonous!) downgrades even the role they play in the development of a baby.  

The book has many black and white photographs. It also is around two hundred pages (minus notes and such) with large margins. These days, two hundred or so pages is a good length for me. The book also is not written in an overly academic tone.

It is recommended.  

Some Legal Developments in Voting

The Supreme Court in Rucho v. Common Cause (2019) made it official: partisan gerrymandering is a nonjusticiable political question. The ruling was 5-4 by ideological lines.

It was not like there was much teeth in Supreme Court precedent to stop partisan gerrymandering before this ruling. Justice Kennedy never firmly went either way. Four liberals for years, including before any of the current trio was on the Court, were open to the idea. Kennedy teased them by leaving it open, including as a First Amendment issue.  

The Supreme Court still guards against racial discrimination in voting, including while interpreting the Voting Rights Act. It denied an application to vacate a stay regarding a map in Texas. Kagan for the liberals (not the whole thing):

In imposing a different map, acknowledged to violate current law—on the theory that the Circuit might someday change that law—the Court of Appeals went far beyond its proper authority.

Chris Geidner argued that "far beyond" is strong language for Kagan, suggesting she wanted to firmly state her position. The whole dissent is a paragraph long. You can sometimes state your position succinctly.

The Supreme Court majority left open state and federal methods to regulate partisan gerrymandering. It remains to be seen if the conservatives limit the scope significantly in the future. For instance, how about independent districting commissions, which are not merely advisory? That is, they significantly tie the hands of the legislature. Chief Justice Roberts once opposed that. Rucho appears to now support it. Remains to be seen. 

On that front, the New York Court of Appeals handed down a significant opinion sending the districting back to a commission set up by a state constitutional amendment. The 4-3 opinion, by the new Chief Judge with the other new member recused (her stand-in joined the four), held the court-drawn map (after the old map was struck down) was temporary. 

A 4-3 opinion (the old chief judge joined that majority; the other three in the majority dissented here) held the old map was a partisan gerrymander that violated the state constitution. A court-drawn map helped Republicans win in 2022, including causing Democrats to run against each other. 

Steve Vladeck is one liberal who supported the idea that there was a partisan gerrymander. Some liberals were pissed that the court helped the Republicans without really disagreeing that it was a partisan gerrymander. They wanted the judges to say "Oh well, can't unilateral disarm."  

Tricky business. OTOH, how to apply the opinion there was still debatable. Why not say there was not enough time to fix the districts for the 2022 elections? A later ruling applied to the state legislature went that way. Anyway, this seems sensible. The constitutional amendment set up a system with a commission with some role for the legislature. 

The judge-drawn map was a special case. To be continued. 

ETA: Here is more discussion of the background of the opinion, including the importance of Senate Democrats rejecting Gov. Hochul's first choice for Chief Judge. 

Petitioner’s motion to expedite consideration of the petition for a writ of certiorari before judgment is granted, and respondent is directed to file a response to the petition on or before 4 p.m. (EST) on Wednesday, December 20, 2023.

The final thing that happened since my Monday SCOTUS wrap-up (told you there would be more orders) is also election-related. 

Jack Smith asked the Supreme Court to decide if Trump has immunity (no reason in hell he does) before the Court of Appeals addresses the issue. This is an election matter since his crimes involve screwing over an election and still being around to do it a third time. 

(See the Mueller Report for 2016.) 

This appears partially to be a time issue since the D.C. Court of Appeals is a good risk to decide in support of Smith. I am somewhat wary about the Supreme Court touching this issue. Again, there should be no reason Trump is immune in any fashion. But, the Supreme Court slow-walked the Trump financials last time and added more rules. 

The Supreme Court has agreed to speed things along regarding consideration of the petition. The usual process could be months long. So, it's a first step. If accept the case, they can have an argument in January. 

==

There are other pending matters. Again, there likely will be more orders. I wanted to address these since we already have some significant action.

ETA: There was. I will wait until the end of the week to comment.

SCOTUS Watch: Order Day (Last of Year)

Case Grant

A grant was dropped on Friday:

Issue: Whether the 60-day deadline in 5 U.S.C. § 7703(b)(1)(A) for a federal employee to petition the U.S. Court of Appeals for the Federal Circuit to review a final decision of the Merit Systems Protection Board is jurisdictional.

The issue sounds technical but was "relisted" which suggests some notable interest. Of course, we don't know why it was relisted for multiple conferences. The word "jurisdictional" means that the deadline would block a judge from taking a case after the deadline. It is fixed by law. 

Sometimes, for instance, judges have the discretion to do something. A judge might find that a normal deadline could be waived for equitable reasons. Nonetheless, though the details suggest the lack of a hearing is unfair, the argument is that the judges as a matter of law had no discretion. This might be bad in an individual case but the system as a whole is a good policy. At least, Congress has the power to think so.  

A separate due process argument is possible but is not at issue. 

Order List 

We also have the last scheduled Order List of 2023. 

The US Supreme Court tossed competing appellate rulings on an executive order President Joe Biden has since revoked that required all federal employees to be vaccinated against COVID-19. Jackson added statements referencing her views on vacatur (see first opinion of the term).

The notable news in today's final scheduled order list is that three justices want to take a case concerning bans on conversion therapy. Kavanaugh simply said he wanted to take the case. Thomas had an extended dissent, including making it a grave free speech issue. Alito had a more limited dissent that addressed the particulars much less.  

[As usual, Chris Geidner helpfully discusses this case and notes that the claimed circuit split -- a basic reason why the Supreme Court grants cases for full argument -- is disputed]

Alito also added a dissent to a rejection of Robert Kennedy's motion to intervene in a case accusing the Biden administration of violating the First Amendment when communicating with social media companies about content moderation. 

Quoting Alito:

This case concerns what two lower courts found to be a “coordinated campaign” by high-level federal officials to suppress the expression of disfavored views on social media platforms that now serve as the primary source of news about important public issues for many Americans. us.

He already has expressed his view that this was some very concerning threat to free speech when it is much ado about nothing. He was joined there by Thomas and Gorsuch. He speaks alone here. 

==

Justice O'Connor 

Okay. So, this is the final scheduled scheduled order list of the term. There has been a policy of granting cert. (full argument) for other cases in a separate order some time mid-December. Next Monday, O'Connor will lie in repose (the public can give their respects) and a private funeral will occur on Tuesday. 

I expect further orders this year.  

Holiday Fare

This book is a collection of three Christmas romance novellas from popular authors. Political rivals fall in love during a plane crash, a divorced dad's teenage daughter plays matchmaker, and a woman's aunt does so from the grave (so to speak). 

Each speeds things along, two especially, the desire. People want to get married after a few days or something. It's a bit ridiculous at times. I might not like one or more of these as full-length books. But, for a hundred pages or less, things go along pleasantly enough. 

Christmas on Cherry Lane is the newest Hallmark Channel film. 

There is a ridiculous number of holiday films (there is a Hanukkah film tonight) on multiple channels now. I found out I have three Hallmark Channels though one often has dramas or mysteries instead of films. I found out I have the Great American Family Network. Lifetime has some Christmas films. As do others. There were at least four options at the same time last night. 

This film does stand out. It comes out that the film actually takes place over three time periods with somewhat (at least one is a bit of a surprise) interrelated families. Thus, a woman has a child in 1973, who takes in for Christmas in 1999 a young foster boy, who grows up to be the husband of a guy and they are getting their own foster daughter. A policeman helps deliver that baby. His two children are part of the family involved in the main 1999 story.  The daughter does become a singer, who becomes friends with that couple. And so on.  I might have missed something!

The film has a large cast (three storylines & that 1973 family has to deal with a bunch of family members coming in). Overall, the three storylines work out well and do not seem too thin or something. There are a few familiar faces, including Catherine Bell (Good Witch, etc.) 

With so many films, it is good that they try to mix it up some. Hallmark may try to have more people of color as main characters! Also, there are so many films (on different channels) with royalty. Not only do they have mostly males as the royal love interest, but the characters tend to be from some imaginary European nation. Why not toss in some from other areas? Oceania is filled with possibilities alone!  

Oh well. I DVR'ed two more films. Will see how they go. One doesn't appear to be a Christmas film!  And, darn, Grammarly makes me feel like an incompetent writer with so many suggestions! 

ETA: The Amish Bakery movie on Up TV was a Christmas film. 

I liked it -- it was the less polished, somewhat more natural, and roughly acted film that is often found on that channel. It gently taught its morals, including noting that Amish life is a matter of choice. Perhaps, other religions should have a formal process for young adults to take to determine if they want to continue some of the aspects of the faith.

The Hanukkah film where a woman gets caught in a time loop tied to both her self-confidence and romance was overall pleasant. It had some good supporting characters. It tied together, pacing-wise, generally well. A dreidel plays an important role as does fried jelly donuts. 

===

The big baseball news is that the two-way phenom signed for the Dodgers (10 years/700M). I find that ridiculous. I assume that baseball being a business and all (often with teams, including the Mets, with extremely rich ownership), they are not just throwing money away. 

There was a rumor (it would have been nice) that he was going to Toronto, owned by some deep pockets. The idea there was he would be an "event."  I do not know how much that translates into. Does it translate into THAT much revenue? Anyway, it turned out to be a bad tip, and he went to a much more expected team.  I figured he would stay on the West Coast.

It somewhat depresses me that the Dodgers just have one more reason to shine. It does make it somewhat easier for the Mets to sign the big Japanese pitcher on the market.  Still, Ohtani is not due to pitch in 2024 with his injury. How long could he pitch when he does?  And, who wants just to see a very good outfielder? I know. He's extremely good.  70M good? 

And, what if he gets hurt, as players do? I know the deal. But, do wish they share a microscopic fraction of the wealth with me somehow!

Rep. Elise Stefanik Plays Gotcha

Congressional hearings ideally are useful exercises that are used to collect information, allow Congress to engage with third parties (especially members of the executive branch and nominations), and express themselves. 

The last part is going to be part of the mix. The cynical will label all public hearings as a sort of "dog and pony show" that is a lot of hot air. It need not be. It is not merely that. Nonetheless, yes, there is some of that. Republicans seem to use them to do a lot of bloviating. 

One or more college presidents got in trouble for some remarks about addressing antisemitism. We had some "the devil has a point" responses. Nonetheless, as Popehat* notes here, let's not fall for that. A few complained (most watching one clip) that a witness needed to answer better. 

I thought this when I saw it on Twitter/X. The gotcha is that "promoting genocide" should be against the rules. A trick is that "genocide" is being used loosely. Also, context does matter. Hate speech is not default harassment. And, she sounds stiff because she realizes it is a trap. This gamesmanship is part of the game, of course.

I have not watched an extended clip. People should be careful. They should know what to expect. They should have a plan to address, as best they can, trolls like Rep. Elise Stefanik.  

We also should take things with a grain of salt. Do not fall for the "oh boy" when all you have is a short clip. Sometimes, maybe, it might be a sign that the witness is bad or had a bad segment. Even then, it is best to at least listen to more than a minute or two to get a decent sense of things. 

--- 

* Popehat has been in this blogging business for a long time. He is well respected. He often has some excellent things to say. Other times, he tosses in something that rubs me the wrong way. I am not a normal reader.  

ETA: "Penn’s President Resigns, After Her Responses About Antisemitism." Sigh. 

Hanukkah and Other Timely Comments

Hanukkah officially begins at sunset today. I have talked about the holiday before. I am also writing something (symbols and history) for other blogs. I will see if either or both are posted. I found Justice Blackmun's background in a case involving a governmental display helpful.*  

The history is somewhat complex. We can go into the weeds but then there is the reality that we basically only have one side of the story. The history is at least partially a matter of cultural struggle (Hellenistic Jews -- how far could they go in Greek ways before that is a contradiction in terms?). It also was a power struggle between an empire and a divided local people.

The eight day Hanukkah celebration itself (see, especially, 2 Maccabees) might have been based on a pre-existing winter festival, including the eight day dedication (the literal meaning of "Hanukkah") of the temple. The "miracle of the oil" is a later addition. 

Holidays usually have complexities, including Thanksgiving and Christmas. Hanukkah today is largely a family holiday that celebrates Jews and Judaism. It is -- to use a word I have started to use more now that I wrote something about it (in draft form) -- ultimately a celebration of resilience. Jews survived and if anything gain strength from their struggles. 

Plus, you have all that fried food (oil for the dedication!). How can you not enjoy a holiday with fried jelly donuts? 

===

The "day that will live in infamy," to quote FDR, also is complex. The Japanese did not just attack Pearl Harbor because they were evil. The United States were blockading crucial supplies (after Japan attacked territories of U.S. allies). The Japanese also were taking part in a pre-emptive strike. They had reason to believe the U.S. would go to war.

A basic reason why the attack is so shocking is that the Japanese were in the midst of negotiation with the United States. Thus, it was a form of treachery. The event was also an intelligence failure. There was some evidence that an attack would occur. Overall, before 9/11, it was the biggest surprise attack (to push aside the Brits) on our shores. Very shocking.

==

We are having a few very old and notable people dying these days. Roslyn Carter died. Then, we had Henry Kissinger. And, Sandra Day O'Connor. Now, Norman Lear -- the television pioneer -- has died. He was over 100. He lived a long and productive life. #RIP

---

* I also have written a lot about government display litigation. 

The judgment there was a fractured one. The median position was that a stand alone creche (symbol of Christian nativity) was unconstitutional. Nonetheless, a menorah that is part of a wider holiday display was acceptable. A solitary menorah or two blatantly religious displays together might somehow be problematic too. 

It is very unclear what is left of this case today. I have been sympathetic about the separationist position. Over the years, I decided the best path is (1) providing localities some discretion on how much separation is required (2) the core concern is neutrality. The median position might be okay. The display had a Christmas tree, a menorah, a statement in honor of liberty. 

These days, a stand alone creche very well might be acceptable as a symbol of Christmas. I find allowing a governmental display of this sort still troubling. The typical creche is concerns the three wise men worshiping the baby Jesus. This is a religious message. It is a bit sad, as Justice Blackmun noted in another case, that it is acceptable since it is so watered down. 

SCOTUS Watch: First Opinion of Term

The first opinion of the term tends to be non-controversial. This precedent was followed this term. The justices could have simply granted the request to declare the whole thing moot. But, they had an oral argument first.

The case involved a potentially open-ended dispute involving "testers," who sue to "test" civil rights laws. 

Deborah Laufer has sued hundreds of hotels whose websites failed to state whether they have rooms accessible to the disabled.

So, we have a sympathetic case that seems to be taking the concept too far. She cannot really go to all these places. Technically, she might meet the standards. After all, as one justice noted during oral argument, on average, people plan by researching many options, and then selecting the best one. 

Now, "hundreds" sounds like a lot. The Supreme Court took the case because this one person created a circuit split, since the hotels were in various judicial circuits. So, the law on the question is divided, and that is a basic reason the Supreme Court takes cases: to settle on one united law.

So, the Supreme Court took the case. However, then Laufer asked them to hold the case moot. One of her lawyers was suspended from practicing law. And, the lawyer's overall scheme had other effects:

Making matters still worse, the sanctions order against Gillespie also implicated Laufer’s former counsel of record before this Court, Thomas Bacon. 

She did not just ask them to declare the whole thing moot. She did not just dismiss her pending suits, but promised to not bring additional ADA suits. 

The other side noted it made sense to decide the question. Laufer granted the Supreme Court had a the power to do so. She argued it was a prudential move not to do so. The Supreme Court agreed, noting they might follow another path in another case. Barrett wrote the opinion. This flexibility was something she herself flagged in an earlier concurrence.

The opinion was less than four pages.

Thomas would have went to the merits and ruled against her. She should not have standing to sue. If they went that route, the question would then be how far you have to go there. What sort of person who "tests" to ensure that civil rights laws are upheld (and conservatives can do this too) have enough of an interest? After all, one case determined a dollar damages was enough for standing to sue. Thomas was fine there. 

The concern raised by some people was that the Supreme Court would interfere with the power to bring suits in cases much less blatant than this one. There are various cases (such as testing a bakery which doesn't do business with same sex couples) where a claim is raised that the litigant is not really burdened. It is just a "test case." 

The line drawing might unjustly limit valid litigation. The Supreme Court does have a circuit split to work with here. Nonetheless, is this a good case to settle the question? Is she a normal claimant? It's easier just to declare it moot. They could have done this before the argument too, but Thomas and maybe someone else was wary about doing that.

The Supreme Court also vacated the opinion below. This "United States v. Munsingwear" vacatur has been used more often in recent years. The link discusses the basic concept. 

The general problem is that the value of appeals is that it tests (ha) the lower court judgment. But, what if there is no ability to do that, such as if the case becomes moot? For instance, the rule of law decided by the lower court will still be precedent for new cases. The losing party won't have a chance to appeal and potentially have it overturned. 

Justice Jackson concurred in judgment. She questioned the application of the rule in recent years. She would declare the case moot and agrees for a limited reason that vacating the lower court judgment was correct. Nonetheless, as she has already done a few times, she went her own way on a matter of law. Jackson again brings some fresh air to the Court. 

==

Today was the oral argument in the case that Justice Alito should have recused. He had two extended colloquies against the government's position. He only asked the other side a quick question, basically assisting him. 

It looks like the income tax won't be troublesome. This is as it should be since the sort of hairsplitting on the obscure outer limits of a "direct tax" is best avoided. Tomorrow's oral argument appears fairly technical.

ETA: It is a somewhat technical discrimination case, which might have troubling implications.  (Many people despise Twitter/X, for cause, but there are still people there with this sort of very useful comment thread.) Overall, the case underlines how you win can matter.

There will be an Order List on Monday, which is the last thing scheduled (putting aside the O'Connor funeral ceremonies) for the Supreme Court until the new year.  We might see a stray order or something else. 

==

The funeral arraignments for Justice O'Connor was provided. Her family notes that in lieu of flowers that the family requests donations to iCivics, the civics education website that O'Connor established. Her civics campaign continues even after her death.  

Chief Justice Roberts provided a bench statement in honor of O'Connor before the Monday oral argument. A C-SPAN reporter posted it on Twitter/X. The statement came before the argument so we have no audio. The Court also didn't provide a transcript on the website. 

Meanwhile, even though opinion announcements returned (after COVID suspension) last term, Oyez.com still has not posted any audio from what I can tell. The first opinion announcement from last term was almost a year ago. The Supreme Court should release them on their website. 

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Judge Loren AliKhan (a D.C. judge) was confirmed today as a federal district court by a 51-50 vote. All the Republicans and Joe Manchin (who can't say he has to worry about re-election any more) voted against her. 

This required a tiebreaker, both for a procedural vote and the confirmation. Thus, Vice President Harris does one of her few official duties and broke the tie. The procedural vote was a bit of history: she now broke more ties than any other vice president. 

It is charming that she broke the record of racist John Calhoun, who was the only person who was vice president under two presidents (Adams and Jackson). He served almost eight years (1825-32) before resigning to become a senator. Biden in two terms broke no ties. Harris broke the record in less than three years. She now has thirty-three tie breakers. 

A few Republicans voted for her before. I am not totally sure why she is so problematic for a district court judge slot in D.C. 

More On Justice O'Connor

Death provides a chance to contemplate things. President Lincoln used honoring the dead of Gettysburg to provide a statement of basic American republican values. Funerals honor both the dead and a whole lot more.

We are seeing more reactions from the death of Justice Sandra Day O'Connor. I knew that her death was going to come some day soon. She was over ninety. She left public life over five years ago. Reports are that she showed signs of decline for years before that. Like many obituaries, including that of Henry Kissinger, people had words in reserve.

(President Biden gave Kissinger a bare paragraph that between the lines underlined what he thought about the guy. His statement for O'Connor is more detailed.) 

Linda Greenhouse, the retired long term Supreme Court reporter, has a very good obituary. The justices themselves also have released statements. As usual, Justice Souter's remarks are brief and touching. Likewise, Breyer (who was close friends with O'Connor) had an emotional statement. Each justice had nice things to say, including Alito who has turned against her legacy. This legacy is a matter of jurisprudence, style, and civics.

Eric Segall is referenced in Greenhouse's obituary remarking that O'Connor had a pragmatic jurisprudence that threatened the rule of law. Segall interviewed Greenhouse for his podcast. In his own remarks, he noted:

Linda did not consult with me prior to her publishing this obituary and, if she had, I would have asked her to remove my critique, as yesterday was not the appropriate time for those observations.

I find this a rather ridiculous statement. Why is it not an appropriate time? The obituaries provide an analysis of her life and career. Is he following some dubious "can't say anything bad about the dead" rule here? O'Connor herself, famously outspoken and blunt, is not likely to be miffed or something. It is fitting and proper to discuss her career as a whole.

But those criticisms must wait until more time has passed, providing us better perspective on her long and important career. 

Why? She resigned from the Supreme Court over fifteen years ago. Much has been written about her career, including biographies. What is wrong with criticizing her career? Segall has no compunction in criticizing Scalia and Thomas. I find his comments here a tad bit strange. Nonetheless, by now, I am not surprised that he makes some dubious claims.* 

(I am a fan of the Dorf on Law blog. I find myself usually in agreement with Michael Dorf. I also often agreed with his wife. Prof. Segall is a charming person and he makes some good arguments. He also makes some very dubious ones. His take on the 14A, sec. 3 provision, including the firm assurance that the best path is for congressional Democrats to waive the disqualification for Trump, in my opinion at times goes off the rails.) 

Prof. Segall notes that in time he respected O'Connor's pragmatic one case at a time approach as he decided that the justices were not acting like judges. O'Connor basically was just being more honest about things. Again, I find this a bit silly. I don't accept his whole "not a court" business. If I did, why (after two decades of legal service, both in the courts and academia) Segall still did not recognize it in 2006 is rather dubious. 

Life tenure and virtually unreviewable power inevitably lead most justices to see the law and their personal preferences in the same way.

Okay. Does he somehow think state judges, who do not have life tenure, do not act this way? State judges are even more likely to do so (a matter that concerned Justice O'Connor) when they are chosen by partisan elections. In some fashion, the safe harbor of life tenure (good behavior) might to a limited degree allow more neutral adjudication. At least, that's the theory. 

Anyway, thinking about these issues now is fine. Major events, including the passing of great personages, provides a suitable period of contemplation. The "not the time" when gun deaths lead people to talk about gun regulations is a misguided statement. 

So is this.

Sandra Day O'Connor had a long career. She continued in a public role after she resigned for the Supreme Court. She pinch hit (like Souter) on the lower courts. She promoted civics. She continued to write books. She even was appointed to the Iraq Study Group. This was after a long pre-Court career, including many years in state politics, and twenty-five years on the Supreme Court. A lot of material to contemplate.

We can fully honor her life in many ways, including fully contemplating the meaning of her career, and how things have changed. 

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A Friday order dropped: 

The application to vacate stay presented to Justice Alito and by him referred to the Court is dismissed as moot. 

As usual, we are not given anything more. This article provides some more details about the overall situation. 

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* Of course, there is much to criticize about Justice O'Connor's jurisprudence, especially her relative indifference to the plight of the poor and her role in Bush v. Gore.

Bush v. Gore is of course her most infamous decision. This included her remarks after the election when she thought Gore had won. 

I'm not sure what "relative indifference to the plight of the poor" means. It clearly was not something unique to her. It wouldn't be my go to as compared to certain federalism decisions and so forth.

==

I checked a liberal blog and decided to add a bit more. This can be done ad infinitum basically with all the commentary, but anyway, enough with this blunderbuss. She was not "Bush v. Gore all the way down." 

(Admittedly, it is unclear what that exactly means.)

O'Connor "handed her seat to the writer of Dobbs." This is bullshit. She resigned to take care of her husband. This is actually founded on clear evidence as compared to supposition about "saving Roe." In hindsight, she was upset she retired. She did not share the views of Alito on many issues. And, Bush picked someone else first. O'Connor might even had an expectation Harriet Miers (who conservatives worried about as something of an unknown) would follow her.  

The Twitter/X screenshot uses Bush v. Gore to basically erase everything else she did during her career. We get a nod to her "half-preserving" Roe basically as a bludgeon against her since she was replaced by Alito. 

Her actual jurisprudence protecting privacy rights (drug testing, gay rights, and more) is basically handwaved. Many comments suggest she did basically nothing positive. Even the "half-preserve" is dubious. Dobbs underlines that Planned Parenthood v. Casey is not thin gruel.  

No, for those who think it's true in the comments, Casey was not toothless. Not only did lower courts repeatedly strike down laws, the Supreme Court itself did so. O'Connor joined one such opinion involving so-called "partial birth abortion."  Another major one took place after she left the Court. It was used to block TRAP laws in Texas. Her very last opinion reaffirmed basic abortion rights. 

The opinion strengthened the reasoning of Roe by adding more teeth to the principles involved, especially regarding sexual equality.  This also helped other areas of law, including LGBTQ rights. A more conservative leaning Supreme Court was going to allow more regulations anyway. 

The blog begins with a nod at her being better than Alito and Thomas. Okay. Who cares? HOW was she better? Gorsuch is better than those two as well. That is faint praise. The blog spends most of the time rubbing it that she was horrible and even the good things she did were negated by her retirement. Toss in yet another potshot at Ruth Bader Ginsburg.

[I originally said more about retirements but that is a whole big aside. Suffice to say I think that blog's take a tad simplistic. Also, at first, John Roberts was going to replace O'Connor. Then, Rehnquist died.]

I hated Bush v. Gore. I lived through it.  It is a sign of courts run amuck, including why conservative claims of judicial restraint depends on whose ox is being gored. No pun intended. Let's be honest however, and realize that Bush was not president merely because of that ruling. A likely result would be a disputed final count, the two houses of Congress dividing, and the default being the original official count. AKA Bush. 

Bush v. Gore was not when the Supreme Court died or something. It was a grievous example of its tenure. It is akin to Dred Scott or Dobbs. We can't ignore everything else, including same sex marriage or whatever. 

This blog is filled with people who are disgusted when the state wants to execute someone for heinous murders. But, Bush v. Gore is enough to damn O'Connor to hell. One ruling over a career spanning a half-century. This is a vision of humanity that I ultimately find rather depressing. 

Anyway, that's it for now.