Kneejerk SCOTUS Criticism

Prof. Erik Loomis is an expert on various things, including things historical, but goes into curmudgeon mode regarding the Supreme Court decision (split on ideological lines) upholding a law against the homeless:

But what I took from reading about the case is what I usually take from the Court–there’s nothing principled about any of them at all. They are all–liberal, conservative, and fascist–utter hacks who just find constitutional precepts for their own personal political positions. Does the ban on homelessness violate the 8th Amendment? I don’t know how you even answer that, but for the justices, it was just an excuse for them to rule based on their own opinions on the issue.

Other than quoting part of a NYT article (a paper people on that blog often sneer), he has little to say:

The short version is that Sotomayor thinks this is evil and Gorsuch thinks it is good. That’s it. What the Constitution has to do with any of that, I don’t know. What I do know is that the entire idea of a Supreme Court is a complete disaster and I hate this institution very, very much. Why nine hacks should be our godkings is a question I wish more people asked.

The comments are filled with generalized comments that similarly largely do not engage with the reasoning of the opinions. One person talks about what the Eighth Amendment "intended," part of his repeated appeals to originalism, without blatantly admitting his support of that approach.

The "entire idea of a Supreme Court" being a problem is a novel thing. Some critics do not like judicial review -- though countries around the world apply it -- but how does not having a Supreme Court at all work? Or, is this some badly framed criticism of a court with such a wide reach as compared to a more limited constitutional court? Hard to say.  

Why not try engaging with Justice Sotomayor's argument (even if some on that blog are mad she didn't retire) since unlike Alito et. al., she is not a troll? The basic concept, citing a precedent involving drug addicts, is that it is cruel and unusual to criminalize status. The homeless (unsheltered?) here are granted to be involuntarily so since there is not adequate housing.

The policy here, good or bad, involves the use of criminal law. People who are unable to obtain a home can be criminally fined. The law also raises various other problems, including due process concerns, that are not directly involved in this litigation. 

The majority argues it is not a status crime. The locality is criminalizing camping in public. Goruch for the conservatives emphasizes the complexity of the policy issue. He is also not a big fan of the original precedent though granting a status crime might also raise due process problems since it involves involuntary conduct. 

I find that somewhat a matter of semantics, especially since ultimately we are using the Due Process Clause anyway. This is state action so the Fourteenth Amendment is applied. I think a crime and fines do raise Eighth Amendment issues particularly. A punishment can be unjust, cruel and unusual because even a day in prison or a dollar is unjust.  

A long time college professor, with a Ph.D. yet, should be able to handle that. But, as sometimes is the case with him, Loomis is too lazy or whatever to actually spend time to address the issue.  

The application of the law is going to be influenced by the ideology of the judges who apply it. I am not led to believe Erik Loomis is against a court system. Or, a system where certain rights have to be applied. 

If you want to greatly reduce the power of the Supreme Court, go right at it. It should require a bit more effort to address what is going on when they interpret the law. 

BTW, this is a guy who is fine with the Department of the Interior setting out large portions of land for national monuments and parks. That is a lot of power too. He cares more about that subject. Still, I have not seen him explain how they go about deciding what is appropriate there. 

This "both sides do" crap is tiresome. 

Oklahoma Education Head Requires All Schools to Incorporate the Bible into Their Curriculum

First off, the NYT Editorial Board determined multiple op-eds were not enough. It personally has to respond to a bad debate performance with a determination that President Biden should resign from the race. 

I wrote a letter about how absurd this very risky move would be for such shallow reasons. Not only absurd, it promotes the interests of Trump. Not that they will admit to their enabling. 

==

Effective immediately, all Oklahoma schools are required to incorporate the Bible, which includes the Ten Commandments, as an instructional support into the curriculum across specified grade levels, e.g. grades 5 through 12.

I caught this curious additional the state educational policy at Religion Clause Blog. A Warren Court ruling against state-mandated Bible reading and leading students in the Lord's Prayer granted:

In addition, it might well be said that one's education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment.

The mandate here was put into a wider context:

The Bible is one of the most historically significant books and a cornerstone of Western civilization, along with the Ten Commandments. they will be referenced as an appropriate study of history, civilization, ethics, comparative religion, or the like, as well as for their substantial influence on our nation's founders and the foundational principles of our Constitution. This is not merely an educational directive but a crucial step in ensuring our students grasp the core values and historical context of our country.

Is there some surprise that the Ten Commandments particularly are found in the Bible? We seem to be focused on one specific aspect of a long, complex book with a range of materials. Multiple states have given special favor to the Ten Commandments, Louisiana recently requiring it to be posed in classrooms. We are getting much closer to illicit sectarianism.

If Oklahoma is seriously concerned about "comparative religion" and so on, good for them. When I was in a Catholic high school, we had a class on Islam. The teacher (seems iffy) even had us recite the statement of faith. Might not want to do that in public schools. I don't remember anything else from the class. But, it was appropriate to expand our knowledge.

Teaching religious texts is a sensitive subject. What exactly more has to be taught about the Bible to discuss how it is such "a cornerstone of Western civilization" (a dubious statement)? The basic themes of the Bible (more likely the New Testament) will help teach certain historical events.  

I would have to see how they teach about the "core values" of our country. The Bible alone will not be necessary there. I would be more supportive if they made a general statement about religious texts. Will the works of the Church of Latter-Day Saints be covered? How about Eastern religions when examining Asian history and Asian Americans? The Qu'ran?  

And, is there some special need to start doing this in 2024? Do children in Oklahoma have a limited knowledge of the Bible in particular?  

I suppose the devil, as they say, is in the details.  

Books and Films

Marlon Bundo was Mike Pence's daughter's bunny, which was the subject of multiple books. A Day in the Life of Marlon Bundo (proceeds going to charity) is a cute children's book about him falling for a boy bunny. 

Pence's daughter (even though there is a stinkbug that looks like Pence and the whole thing is clearly a dig on his anti-gay views) gamely said she was fine with the whole thing, especially since profits went to charity.  

===

I checked out two Bart Ehrman books from a few years ago. Journeys to Heaven and Hell: Tours of the Afterlife in the Early Christian Tradition turned out to be an academic-leaning book. 

It was too "graduate level" for me. Heaven and Hell: A History of the Afterlife was a "trade book" for general audiences. It was generally interesting though it is not really a complete "history," starting with Gilgamesh and Homer. One amusing bit was a sly Clinton joke.

==

I said I wasn't going to read Breyer's new book, which multiple people panned as tedious, but I'll give it a shot. The author's photo reminds us that he is in his mid-80s. The intro has his usual "darn he's so reasonable" tone. He dedicates it to the justices he served with, using their first names!

===

I checked out Ensign Pulver, a sequel to Mr. Roberts because Walter Matthau (playing the William Powell role) was in it. Robert Walker Jr. did a reasonable Jack Lemmon impressive. The ship looks about the same. But, the film overall was not as well written. 

An early weirdly serious scene underlines how off the whole thing felt. It involved a character's young child dying. Also, by some rule of consistency, it turns out the act of rebellion at the end of the first film was only a short-lived moment for Pulver. Plus, they reference Roberts dying and all, but it seems Pulver no longer has his job anymore for some reason (I only saw half of the film; maybe, they explain it later).  

==

Palm Beach Story has a reputation as a classic screwball farce. 

If so, it seems to take a long time to get going. The opening credits are amusing. But, then there is a not-too-funny bit about a nearly deaf "Weinie King" that helps cause problems with the couple. 

The film gets more screwing eventually but I was too bored to stay on. I also am not that big of a fan of Claudette Colbert. 

SCOTUS Watch: Bye Bye Chevron

Half of the six (two doubles) cases left were handled today.

First, the conservatives (via Gorsuch) upheld a law targeting the homeless as a generally applicable anti-camping in public law which is not otherwise cruel or unusual. Thomas (as usual) goes for bigger game, wanting to overrule a sixty-year-old precedent that blocked criminalizing drug addiction (illicit status offense).  

Gorsuch spends a third of the opinion taking homeless policy and how much pushback the lower court opinion received before getting to the actual merits. Sotomayor (reading her dissent from the bench) argues the law is an unconstitutional attack on the homeless as well as likely having other problems. 

[Did I say I wish opinion announcements were available on the website? Yes? I'm told I have said this many times. Okay.]

The BIG (and expected) opinion today struck down "Chevron deference," which was firmly established over forty years ago. The Supreme Court used to give administrative agencies discretion to interpret statutes unless it was blatantly wrong or violated some constitutional principle.

Roberts handled the great white whale for many conservatives as well as those who spend so much time and money to get the right judges. Showing how hard it is to move tankers and so on, the ruling doesn't give judges free rein. Agencies still have some deference. Noticeably less though. Basically, the opinion makes it easier for judges to intervene when they want to do so.

Kagan (reading from the bench) dissented for the liberals, including explaining why the Administrative Procedure Act does not require the result. The majority claimed that was the basis of their ruling though mixed in "the courts say what the law is" rhetoric. Thomas and Gorsuch (who blathered on about stare decisis) would have also firmly relied on that. 

(Congress could in theory amend the APA but good luck with that.]

The decision gives federal judges much more power to interfere with the actions of administrative agencies. Agencies always had a large amount of discretion, often involving extremely technical and specialized matters. The modern administrative state only increased this principle. 

The courts, including the Supreme Court, already have means of causing problems. There is the made-up "major questions doctrine," for instance, that has repeatedly caused the Biden Administration problems. The concept here is that when a piece of legislation is deemed too big, the courts can strike down things that allegedly go "too far."  

This concept was involved in the final opinion, which will make it harder to address January 6th. One law professor noted the opinion, which narrowed the reach of one prosecution approach, reaches around 20% of the defendants. Not Trump, another assures us, well, not likely. Uh-huh. 

Roberts took this one too. Jackson concurred, opening with an acknowledgment that 1/6 was horrible (perhaps since Roberts went another way), but that can't allow them to stretch the law. Barrett for the other liberals strongly dissented that the government did so. For instance:

The case for the Government’s interpretation is straightforward. It can be accomplished in three paragraphs, as compared to the Court’s many, many more. 

Prof. Barrett also wasn't impressed by the majority's statutory interpretation that was "like using a hammer to pound in a screw." Their "atextual" reading did "backflips" and "failed to respect the prerogatives of the political branches."  Again, Justice Jackson disagreed. 

The net result is that the government has to go back and try to show that a correct application of the law would validly prosecute this defendant and anyone else who can bring a similar claim. 

Again, this case isn't about Trump though I'm not going to be totally assured yet that somehow it will deemed to be. And, it is a "win" for that side in some ways. 

Monday was announced to be the final day of opinions. They are running out of "power grabs" though the delay of the Trump case surely was. 

ETA: As expected, SCOTUS denies without comment a request by Steve Bannon to keep him out of prison. 

Why Is There A Presidential Debate In June Anyway?

I have been working at the polls for over five years now. My job is checking in voters using a "poll book," which is a little i-pad type device. 

We used to have clunky lever machines, which had certain charms, including an actual curtain. Now, voters fill out a ballot and hand feed it into the scanner. There is also a little used ballot marking machine, which can be used by anyone, particularly those with disabilities.

There was no primary race at the local polling place, so I had to trudge around a half hour to another one. It was in the basement of an apartment building. AOC and the incumbent state assemblyman had basically token opponents. 

The big Bronx (Westchester) race was Jamaal Bowman losing big to some white "pragmatic" candidate who libeled him via offensive campaign ads. Bowman lost his district. The Westchester official fit its brand more. An unfortunate result of local democracy.  

We have early voting now, so it is not surprising that there was limited turnout in my polling place, especially for one smaller than many. We had around 100 voters. Things mostly went without a hitch. A blowhard Republican voter (no candidates) came and acted out a bit.  

I am somewhat refreshed each time by civics in action, even if I have to get there at 5 A.M. and stay there until after 9 P.M. (with two breaks). Let's see how things go in November. It went okay back in 2020.

===

Yes. The title of this entry is a reference to the presidential debate. Many people didn't think it would happen. I hoped it would not.

Trump handled debates in the past. Those who thought he would try to avoid it misjudged things. He can Gish Gallop (spew lies in rapid succession) while looking energic doing so. If it was a real "debate," with careful press handling of things, it might be harder. But it's not. 

The two links are honest accountings. They do not ignore that President Biden looked tired and had a hard time strongly pressing back hard. The importance of debates is far from clear. You still cannot handwave them, especially when your performance furthers the negative frame put on you. 

They also remind us of two things. (1) this is just one debate; it isn't the end of the whole deal. We will have clowns talk about him stepping out. Knew we would have them. Won't happen. Shouldn't happen. 

[This is where we are at. The same person who ridiculed such talk not that long ago posts this after a bad debate. Okay.] 

(2) Bottom line, there is only one sane choice.

And, as another person notes, we have a reason to have faith in that person. If "faith" turns you off, use some other word. His record speaks for itself. His struggle, especially with a cold and overpreparation [it is not like he was bad in each debate in 2020], in this specific setting doesn't change that.

She also notes:

What bothers me most about last night was not Biden’s performance, but rather the anonymous quotes that were coming from the Biden team and supposedly heavy hitters within the Democratic Party. The same people who decided that these debates were an excellent idea decided to tell the press, that they were seriously worried about Biden’s performance and freaking out.

Yes. I checked Talking Points Memo, since in the past that was a useful place to get a summary of a debate as it went on. Right off the bat, it was "oh no!" type stuff. Ditto some online comments. This is typical. Many people really stress out, which is understandable given the stakes.

Still, bottom line, you have to focus. If Trump faltered, would his people publicly shakingly focus on his faults? It's fine to "keep it real" to some extent. But I'm tired of so much doom-ing and doomscrolling-type things. You cannot have that coming from insiders and surrogates! 

I didn't want this damn debate in the first place. Why have a debate in June? I have enough to write about regarding all the shit happening at the Supreme Court. Seriously, there seems to have been a bit where Biden's people (and I guess Biden himself) wanted to turn the tables.

Trump is the one who should be seen as working from a point of weakness. President Biden is in office. He did a lot of great things. A debate, especially since the press will focus on his weaknesses either way, was not going to be a good cost/benefit proposition.  

Anyway, it's done. Other candidates, even Obama, had bad debates. The only sane choice is still President Joe Biden. Why? The alternative is a felon, sexual predator, insurrectionist, and totally incompetent. And the incumbent accomplished so much and is deep down a competent and good person.

Live and learn. Do better next time and win in November. 

SCOTUS Opinions: Day 2

A recent Amy Howe summary of remaining cases helpfully provides information, including a link to the case page which also will include the opinion. Yes, there now will be a fourth day on July 1st, which is rare in recent decades, with COVID pushing things back in 2020 providing a rare exception.

The delay on some level really doesn't matter. What does a few days matter? It isn't just that they want to delay the Trump case until after the debate. They could do it tomorrow. Anyway, the real problem there was both taking the case and slow walking it.  

Today's federal law/anti-administrative state day. The abortion ruling wrongly posted yesterday also dropped.  On that, yes, it is not a "victory for abortion rights." I support Jackson's partial dissent. She (partially) dissented from the bench. It helps that ultimately her vote didn't matter. That allows you to blithely go further. So, factor that in. 

But, I realize Sotomayor and Kagan are concerned about patients in need of emergency care.  If there was a firm five to deny them care, a temporary stay would be of some use. We can talk about sending a message in November but this narrow issue net is of limited value there. 

Without carefully looking, the general assumption seems to be that the content of the opinion that was wrongly posted is basically the same, minus typos and formatting issues. Another case is pending in the Fifth Circuit on this issue. So, this issue will be back to the Court soon. 

Then, we will see what the conservative six will do. Barrett (with Roberts and Kavanaugh) seems to want to find a way to wish the problem away. Alito (with Thomas and Gorsuch) wants to deny there is a problem while tossing in "unborn child" repeatedly. Dobbs remains horrible law. 

The big bankruptcy case involving OxyContin split the liberals. Jackson silently went along with Gorsuch's opinion while the other liberals (and Roberts) joined a Kavanaugh dissent arguing it unnecessarily harmed the victims. She apparently thought congressional intent and the law itself required that result. The case is complicated. Neither side is great. 

[ETA: An important context to this decision is that the U.S. government opposed the deal that was struck down. Like the death penalty, there is also no one answer the victims' support. It's a hard case.]

The SEC result (written by Roberts with Gorsuch/Thomas having a preachy concurrence) limited the harm. It involved a big attack on the agency along with a more limited challenge resting on the need for civil juries. The majority took that route. 

Sotomayor for the liberals still strongly dissented. Long practice allowed not using juries (which to be clear conservatives are not so keen about in a variety of cases) in this context. 

Some liberals were sympathetic to a jury requirement. And, it is unclear just how problematic the result will be in practice. Nonetheless, it comes off as an anti-administrative state result with a wider reach than this one agency. Sotomayor dissented from the bench. 

(Preaching about "due process" or not caring about the enforcement dynamics since that's just "political" while this is constitutionally required is simplistic. Also, yes, Justice Brennan supported juries in some cases in this context. But, the dissent argues only in a limited way.)  

The fourth case was a special hearing (maybe Steve Vladeck's shadow docket writings are getting to them) to determine if the EPA should hold up "good neighbor" air pollution regulations. The guys (Gorsuch) vs. the gals (Barrett) in this case with Barrett having a strong dissent about how unfounded it is for SCOTUS to reach out to delay things. 

==

A final bit. The Supreme Court started to speed along the preliminary bound copies of opinions. One result was a reduced amount of revisions flagged on the website. Any changes were noted at the bottom of the link to the bound copy [see opinions with page numbers]. 

For whatever reason, they have been noting revisions more often lately, even if the revision amounts to the change of one word. 

==

I will leave it there, noting these are complicated opinions, each with a sort of asterisk to them (the EPA case is probably the easiest to disagree with).  See Slate, Vox, and Chris Geidner (Law Dork) et. al. for more details.

See you tomorrow.

Two Executions

There were two executions this week. One was by Texas, the other by Oklahoma. They both involve horrible crimes. They are also different in significant ways. 

At least one is unjust, even if (which is not clear) due process was followed. The other is more of a case study of how the problems of capital punishment do not erase the fact that we are dealing with some horrible people.  

Ramiro Gonzales (Texas) 

Ramiro Gonzales was sentenced to death in 2006 for the murder of Bridget Townsend, who witnessed Gonzales robbing his drug dealer’s home, in 2001. He was eighteen. His upbringing had childhood abuse and mental illness issues that are familiar in capital cases. 

The current line for executions is eighteen. Some experts argue that it should be twenty-one. Juries and judges can still consider age. Gonzales, to add a detail found in a second article, also raped Bridget Townsend. 

The Texas Court of Criminal Appeals stayed Gonzales’ original execution in July 2022 two days before the date, after an expert who had testified that Gonzales posed a future danger to society walked back his testimony. A new sentencing hearing re-established the death penalty. 

His final appeals to the Supreme Court focused on the argument that the method of determining future dangerousness was invalid. This process repeatedly is a dubious enterprise and state witnesses have been found to be dubious experts repeatedly. Should we trust that they did so much a better job the second time around? 

The Supreme Court without comment -- as expected -- rejected his final appeals. This is reasonable given the current law. 

Nonetheless, I continue to be uncomfortable with no justice even supplying a clarifying statement before signing off on an execution. This is also the second recent challenge addressing the argument rehabilitation made the person constitutionally unfit for execution. Again, comment please, Sotomayor or Jackson! 

His good character in prison helps his case. The Supreme Court was asked to consider the state's interest in executing a person who kept in very good behavior in prison and rehabilitated himself in another recent capital case. Overall, compare him to the other person we cover today.  

Gonzales tried and failed to donate a kidney. An NYT op-ed was one example of how this received some national attention. A few capital prisoners over the years tried to do this. One problem was that the execution made the process difficult. If a person on death row wants to donate, they should be able to do so. 

The strongest argument for commutation (to life imprisonment) is that he found God. Gonzales became one of the first Texas Department of Criminal Justice Faith-Based Program members on Death Row. 

To follow a theme here, this is not the first time the religious conversion of a prisoner did not convince people in the Bible Belt. They have a different idea about the saying "vengeance is mine, sayth the Lord" as well.  

Such programs suggest that, even if the final result is an execution, some rehabilitation is possible in capital cases. A religious-based argument might not convince some. If not, consider his wider good behavior and rehabilitation. 

He committed a horrible crime. He did so when he was a teenager. A long prison sentence was appropriate. All things considered, I don't think he fits the "worse of the worst" standard the Supreme Court once suggested. 

Roper v. Simmons, which set the 18-year limit, noted: "Capital punishment must be limited to those offenders who commit a narrow category of the most serious crimes and whose extreme culpability makes them the most deserving of execution." 

His crime was horrible. Nonetheless, all of the mitigating factors, including his time in prison, weigh against execution. A sentence of over twenty years for a horrible crime, when you are eighteen, is not being soft on crime. Want him to serve more time? Go ahead. Execution is not necessary, even if you want to give him an extremely harsh punishment. 

He was executed, apologizing to the victim and complimenting the warden in his final statement. 

Richard Norman Rojem Jr (Oklahoma) 

Richard Norman Rojem Jr., 66, was sentenced to death after kidnapping, raping and murdering a 7-year-old girl in 1984.

He was only in his mid-20s, but it was not his sexual assault:

Six years before Rojem raped and murdered Cummings, he sexually assaulted two teenage girls in Michigan in 1978. He served four years in the Michigan Department of Corrections.

And, to add a poisonous cherry on top:

Rojem was accused of harassing Layla Cumming’s family after he murdered her by sending letters and having friends visit them. Layla’s mother wrote in a victim impact statement that Layla’s father committed suicide shortly after the first murder trial ended.  

The suicide is connected enough to the harassment that we probably can factor it in when determining the sentencing. He also was no model prisoner:

Rojem also has had a history of violent behavior in prison. He has been written up for misconduct eight times in prison for assault and flouting and disrespecting staff, according to the Department of Corrections. Prison staff also cited him for misconduct in 2020 for possessing sharp weapons.

He also was implicated in a murder-for-hire plot while in prison. He was not prosecuted when he agreed to turn state witness. Yes, he claims he did not murder the child. I didn't do a deep dive. But, let's say I don't believe him. 

It is not too surprising his request for commutation was rejected 5-0. So, why isn't he dead yet? 

Rojem’s first two death sentences from Washita County were thrown out of court due to procedural errors. He was sentenced to death for a third time in 2007. Okay. That still was 17 years ago. Some screw-ups resulted in a moratorium later on but there was time to execute him.

The overall delays -- even for this horrible person -- underline the problems Justice Breyer cited in his dissent spelling out the problems with the death penalty.  

There have been some attempts to improve the process of Oklahoma executions, including spacing them apart ninety days. The machinery of death will always have its problems.

Rojem comes closer to the pure principle opposition to the death penalty. A system sometimes is inherently bad. We should not try to draw lines about who is a good target for torture. The principle becomes easier to argue when people are being executed for forty-year-old crimes. 

He had no final appeals. He was executed earlier today.

 ===

I have enough faith in human nature that executing Ramiro Gonzales bothers me. Texas promotes itself as a Christian state, correct? It should understand redemption. 

Richard Rojem deserves few tears. My concern here is more on principle. If you did not get around to executing him for forty years, I see little value in executing him now.

We are supposed to believe that "justice finally was done." The stance of family members on the value of executions, especially after forty years, is variable. I don't see much of it. Not enough, given that as long as we have the death penalty, there will continue to be problems, to execute even him. 

If you don't agree, I won't think you are an immoral monster. 

SCOTUS Watch: Two Down

The Supreme Court set up three opinion days this week to handle around twelve cases (some cases involve the same general subject). They decided to hand down two today. The first:

the case about social media "jawboning" -- the government's communications with social media companies during the 2020 election season and COVID-19 pandemic. The court holds that the challengers -- two states and five social-media users -- do not have standing -- that is, a legal right to sue.

(SCOTUSBlog live blogging summary.) 

Justice Barrett wrote the opinion, which was expected by those who kept track of who wrote opinions from that argument cluster. A bit of inside baseball: the Supreme Court has monthly argument schedules. They generally evenly divide the opinions from each argument. Barrett, who already had fewer opinions than some justices, did not have an opinion from that set. Kavanaugh handled another standing case recently.

The general assumption was that the standing argument was weak. Justice Alito (back on the bench; Gorsuch was out) along with Thomas and Gorsuch though there was standing. They also saw this as a grave free speech issue. It comes off as some Fox News conspiracy.  

[Mark Joseph Stern has more.]

The government flags COVID lies, Facebook or Twitter takes them down, and it's "censorship."  As both liberal and conservative justices noted during oral argument, the government -- including press secretaries -- regularly references stories they deem unfair and so on. 

The open-ended nature of the claims, another Fifth Circuit special, made this an easy case. There is a point that even this Court will say "enough." Again, however, we should not be that impressed with minimal sanity. 

==

The other case was another in a long line of cases (sometimes unanimously) where the Supreme Court applied corruption laws narrowly. SCOTUSBlog summarizes:

The court rules in Snyder v. United States, that federal bribery law does not make it a crime for state and local officials to accept gratuities that may be given as a token of appreciation after the official act. Federal law, the court writes, “leaves it to state and local governments to regulate gratuities to state and local officials.”

(The Supreme Court will then strike down these local regulations on other grounds, including First Amendment or due process.)  

Justice Gorsuch concurs again to toss in his now common comment how he is glad to join his fellow justices (or politely disagrees). He also says any "fair reader" would find the application by the federal government unreasonable. 

Jackson for her fellow liberals disagrees. Jackson summaries: 

involves one such person. James Snyder, a former Indiana mayor, was convicted by a jury of violating §666 after he steered more than $1 million in city contracts to a local truck dealership, which turned around and cut him a $13,000 check.

She argues the majority accepted an "absurd and atextual reading." Jackson continues to be the "keeping it real" justice.

The Court’s reasoning elevates nonexistent federalism concerns over the plain text of this statute and is a quintessential example of the tail wagging the dog.

Mark Joseph Stern of Slate summarized on Twitter:

Jackson, in dissent, says the majority's decision allows state and local officials to accept "rewards" for official acts "in ways that are functionally indistinguishable from taking a bribe," carving a massive hole into the federal anti-bribery law. 

More than one member of the majority are somewhat biased when it comes about line drawing when it comes to bribery. 

==

Kimberly Robinson, referencing other reporting from her paper said on Twitter that SCOTUS

inadvertently released its opinion in EMTALA abortion case earlier this morning. The Justices are poised to allow emergency abortions in Idaho, suggesting the Court shouldn't have gotten involved in the early litigation.

I refreshed the website multiple times and did not see this. So, it must have been there only for a very limited time. I am not sure why they did not hand it down today.  It would have made more sense to hand down three opinions, two involving limited but significant issues and a third having some wider implications. We shall see what happens.

A reporter eventually tweeted a link to the opinions. There are separate opinions joined by nine justices (2-3-1-3), which is weird in such a dismissal. The formatting looks weird. And, there are typos. It does seem like it was not ready to be posted. So, perhaps the release was an accident, simple as that. Other reasons were offered, including that they were waiting for the presidential debate to be over [why release the Biden case then?]. 

A CSPAN producer in charge of the courts posted this statement from the "SCOTUS spokesperson." (I suppose the public information office.) I continued to be annoyed that such things are not posted on the Court's website as a "press release" or "media advisory," to cite two sections on the website. We have to get them secondhand. 

As the Supreme Court turns continues. 

SCOTUS Order List

The Supreme Court dropped one bit of news along with some odds and ends in today's Order List. 

The Supreme Court took seven cases [and didn't take one that Sotomayor and Jackson wanted them to take and racism in jury selection], which you can mix and match by using the summaries at the Relist Watch. Or use Amy Howe. 

The big case [one of multiple trans cases pending] granted, at the request of the Biden Administration:

Issue: Whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” violates the equal protection clause of the 14th Amendment.

Chris Geidner and Erin Reed, two people who have kept track of legal and other developments in the trans area, flagged this in a Substack note. They have said and will say more. 

Alito and Barrett were recused in cases without saying why. Kagan (following the liberals' rule) did. The Court also granted/vacated/remanded (GVR) a few cases, clearing cases like the ones recently decided. 

The next opinion day is Wednesday.  There will also be ones on Thursday and Friday. The five opinions on Friday show you can finish things off with three more days.  

Two Years After Dobbs

Jennifer Rubin had an op-ed arguing that Vice President Harris is doing a great job. Over the last few years, we have seen some criticism. 

A vice president has limited constitutional duties. Her role is largely to support the Biden Administration as part of the Cabinet. She has been given a variety of roles, including supporting reproductive rights.

Rubin references an event VP Harris was at with Chrissy Teigen, the model and spokesperson. Tiegen used IVF to have her children. She also had to have an abortion when she had complications during a natural pregnancy. 

At the time, she did not label it an "abortion" at all. Usage of language here is tricky. Some people whose pregnancies are "aborted" naturally do not use the term. A conservative woman from a large family got in trouble for allegedly not showing empathy and being hypocritical when she had a procedure to remove a fetus that was already no longer living. 

[The exact details were private, but people made assumptions.]

The interview was introduced by another woman who had to suffer various medical issues and have her ability to have children harmed because Texas has a high bar before you can have an abortion for medical reasons. 

Why? Because Dobbs v. Jackson allows it. My sentiment when that opinion was handed down -- and I'm just some guy -- was HOW DARE THEY. That was two years ago. My feelings are not that different.

Somewhat related, in 2020, I wanted a woman to be elected president. I felt that way in 2016 too. I still do. President Biden was the right person for the time. I still hope a woman is president. I will also take a woman being the mayor of New York City. Our current one is problematic.

I have heard some great things about Gov. Gretchen Whitmer. Yes, an added benefit there would be that she would be from Generation X. I have a personal bias in that department, to be honest, but it does seem time. President Obama was almost from that era. Then, we apparently decided to go backward twice. Will I be a senior citizen before it happens?

Anyway, VP Harris is correct that we have to join together and stay positive when responding to Dobbs. Justice Sotomayor's concern for marriage rights last week shows the possible big effects of overturning Roe and Casey. Many people find the results very troubling.

As the first presidential debate (pass*) comes up, many people have a pessimistic viewpoint. Some fear or assume Trump will win. Some wish to focus on the ugliness. It's okay to be concerned and remind and educate about the problems out there. Education is fundamental.

But, like Harris and others also note, many people are fighting back. They continue to provide people the health care they need. People push back against the wrongs and injustices. 

Many people make it harder. People suffer. That is wrong. And, yes, November is so very important. Both to gain as much control of the federal government as possible and multiple state races. We need to respond to that day that shall live infamy, June 24, 2022. 

==

* People kept on assuming Trump would find a means to find the whole thing "rigged" and skip the whole thing. I would prefer this. 

Mets Closer Ejected / Manager: "Shrug"

And Also: Divine Might: Goddesses in Greek Myth by Natalie Haynes was an interesting collection of discussions about Greek goddesses. The chapters were overall a good length. Hayes wrote many books about Ancient Greece. The discussions are not comprehensive. She talks about multiple sculptures and such without showing most of them. This is somewhat annoying.

The Mets/Cubs game Sunday night was on ESPN. I am not a big fan of the television games not involving Gary, Keith, and Ron. 

So, I only checked in from time to time. I saw they were up 5-2 in the 9th and suddenly Edwin Diaz, the closer, was ejected. Without throwing a pitch. Diaz struggled coming back from a year out because of an injury. However, after a stint on the injured list, he has come back strong. 

Turns out he was ejected for sticky stuff on his hands. Such an ejection means a ten-game suspension. It is therefore unfortunate that the rules are so hazy (two baseball analysts, including the former pitcher David Cone, said it's hard to tell if he truly violated the rules).

One account noted:

But this one quickly became anything but routine. Carapazza lingered by Díaz, checking his hat, belt and glove. Although Carapazza found nothing amiss in any of those places, he lingered on the pitcher’s right hand, checking it multiple times while home-plate umpire Alex Tosi watched.

The umpire said his hands were too sticky. David Cone argued there was a way for them to be as sticky without using forbidden substances. The whole thing is weird. This is not a surprise check. Diaz is checked regularly. Why would he risk a ten-day suspension? 

Diaz pushed back but did not ask if he could wash his hands (which is sometimes allowed). He was resigned in the postgame interview [which he did in English, his English skills improving]:

“As soon as they saw me, they were trying to throw me out of the game,” Díaz said. “I understood. That’s their job. That’s part of the game.”

I checked the manager interview on the postgame SNY broadcast. Carlos Mendoza was rather blase about the whole thing. Oh well. They said they broke the rules. What can you do? Did he think Diaz broke the rules or risked it enough that he didn't want to push back? It seemed a tad curious.

“I never check hands, so it’s hard for me to tell if it was too much because that’s not my job,” Mendoza said. “But they thought it was too much and that’s what Vic decided to do.”

This is the third Mets pitcher (Scherzer and Drew Smith, who got two outs tonight, another pitcher got the third) suspended for this reason. Yes, the other two were last season, when he wasn't here. Still, it's not the first time. 

I think ultimately Mendoza has the responsibility -- especially with good and decent teams coming in (Yankees included) -- to make sure his players follow the rules. More so when the result of a breach is a 10-day suspension, which includes the inability to simply replace the person on the roster. 

There is some hedging but the general sentiment seems to be that they are going to accept the suspension. So, they are not going to protest. I doubt the league would overturn if they did. It's hard to get much more than a reduction of a suspension. I believe this one is a fixed amount. 

The Mets won the game. They will just have to make due for ten days though it's annoying since they are in a groove. Diaz being out (and/or out of sorts) was a major part of their swoon before the recent good stretch. 

If this could have been avoided with better in-house best practices, it is a bad thing. The team is supposed to be getting past bad habits. The whole thing is a bit weird. Oh well.

SCOTUS Watch: More Opinions

General Comment

My Supreme Court opinion analysis provides my personal summary of events. You can find more detailed discussions at places like SCOTUSBlog and Chris Geidner's Law Dork Substack. 

Chris Geidner, for instance, flagged how the tax case is carefully crafted to rule narrowly and leave open other tax policies to constitutional attack. The abortion pill case was dismissed on standing grounds. 

Nonetheless, the opinion (also written by Kavanaugh) spoke of an open-ended conscience exemption for health personnel. The craft suggests one reason why a small number of opinions take so long to be decided. Majorities are carefully formed, repeatedly by using opinions that are limited in scope. Again, however, how limited can be misleading.  

The Supreme Court carefully decides what to do. We should not take their actions merely at face value without digging deeper. This is not inherently problematic. Courts will always have complexity. But, we can be overly naive. 

For instance, I'm bothered by some who blithely accept the Supreme Court taking and slow-walking the Trump immunity case as if it is merely some law school thought exercise. It is a time-sensitive issue with real-world effects. The justices are strategically choosing to do things here. 

Various Opinions

The Supreme Court released five opinions. Amy Howe's summary of the remaining cases (now reduced by five) remains helpful. The big case involved guns.

Alito did not show up for the second straight day. Justices do not always show up for opinion announcements. None of the cases were opinions he wrote. The per curiam might be an opinion he originally was writing. Not sure if this matters though if he doesn't show up next time, it might mean more.

Water Rights

I expected an interstate water dispute to be handled by Justice Jackson. A 5-4 majority agreed with the United States that it had the right to block the states' consent degree. A groundwater/irrigation case is important for Western states.

(Gorsuch dissented for the conservatives, minus Roberts and Kavanaugh.)

Marriage/Border Issues

Barrett for the conservatives (minus Gorsuch) quickly (the oral argument was in late April) reached out to decide that a "citizen does not have a fundamental liberty interest in her noncitizen spouse being admitted to the country."  

Gorsuch noted they could have ruled on narrow grounds that the requested information was supplied. He tossed in, as he did in multiple opinions except when Jackson expertly dissented in another case, he respected his colleagues who disagreed with him on certain points.  

Sotomayor for the liberals provided a strong dissent protecting the spouses' interests. She disagreed with Gorsuch on the minor point that even on limited grounds she should have lost. Overall, this case underlines how the majority selectively decides to reach out to determine things. 

The dissent is very concerned about marriage liberty. The majority specifically says it is only talking about the right of a noncitizen to travel to the U.S., including to be with their spouse. I won't handwave the dissenters' concerns -- they are there, not me -- but how bad is the majority really? 

Confrontation Clause / Expert Testimony

The result was unanimous. The reasoning is somewhat more fractured. Kagan wrote an opinion that held that: 

When an expert conveys an absent analyst’s statements in support of the expert’s opinion, and the statements provide that support only if true, then the statements come into evidence for their truth. 

The majority leaves open some questions for the lower courts to handle on remand. She has five votes for the whole thing with Gorsuch and Thomas getting off the bus partially. 

Gorsuch (politely) and Thomas disagreed somewhat regarding her terms. Alito (and Roberts) agreed the testimony was unallowable hearsay. But, he angrily disagreed with the supposed breadth of the opinion's effects on expert testimony ("monstrosity," "radical change," "plain wrong").

[Alito's ire is not too surprising. Notably, Roberts joined in, especially since he usually shows his respect to Kagan.] 

Sentencing Factors 

Insiders know how much trouble the Armed Career Criminal Act gives to the Supreme Court. Today's case:

This case concerns the Armed Career Criminal Act (ACCA) and the Fifth and Sixth Amendments. ACCA imposes lengthy mandatory prison terms on certain defendants who have previously committed three violent felonies or serious drug offenses on separate occasions. The question we face is whether a judge may decide that a defendant’s past offenses were committed on separate occasions under a preponderance-of-the-evidence standard, or whether the Fifth and Sixth Amendments require a unanimous jury to make that determination beyond a reasonable doubt.

Gorsuch says the judge may not. Roberts agrees but notes it might be a harmless error. Thomas would go further if given the chance. Kavanaugh (with Alito dissent). 

Jackson partially joins Kavanaugh's dissent. Of note:

She additionally has prior experience as a Vice Chair and Commissioner on the U.S. Sentencing Commission, as a federal public defender, as a lawyer in private practice, and as a law clerk at all three levels of the federal Judiciary, including for Justice Breyer.

So, her expansive dissent -- which cites her broad disagreement with a shift in sentencing jurisprudence known as the "Apprendi/Booker" cases -- is particularly interesting. Jackson argues the approach as a whole (as compared to certain defendants) is not helpful to overall fairness. 

Gorsuch's failure to not simply politely disagree with the person most experienced on the question is notable.

Domestic Violence/Guns

The Supreme Court -- as expected -- upheld the ability to disarm someone under a domestic violence restraining order:

When a restraining order contains a finding that an individual poses a credible threat to the physical safety of an intimate partner, that individual may—consistent with the Second Amendment—be banned from enclosing firearms while the order is in effect. Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms. As applied to the facts of this case, Section 922(g)(8) fits comfortably within this tradition.

 

Jake Charles (a 2A expert) has a useful thread. He notes, for instance, that the opinion emphasizes the law allows a hearing. Hunter Biden, for instance, was convicted under a blanket ban for those who use certain drugs. 

There are multiple concurrences but only Thomas (whose thirty-plus page dissent helps explain the over 100 pages of opinions) dissents. Alito goes along without comment. 

The liberals note their disagreement with the Bruen (written by Thomas) Second Amendment case but note it was not being challenged directly. Sotomayor (with Kagan) emphasizes:

Rather than asking whether a present-day gun regulation has a precise historical analogue, courts applying Bruen should “conside[r] whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” This "relevantly similar" rule is vague and open-ended. 

Jackson's concurrence politely but pointedly notes the opinion led to a lot of problems, and it was a self-inflicted wound:

Meanwhile, the Rule of Law suffers. That ideal—key to our democracy—thrives on legal standards that foster stability, facilitate consistency, and promote predictability. 

Kavanaugh blathers for over twenty pages. Gorsuch says originalism (which is their obligation to follow!) allows it, especially since this was a facial challenge (a broad attack). He politely dissents from Thomas' views.

Barrett also grants originalism. It has "discoverable historical meaning . . . has legal significance and is authoritative in most circumstances.” Suffice it to say, I disagree that it is "authoritative." It has some discoverable meaning. Nonetheless, we should follow the lessons of history up until today, applying common law principles of legal analysis. 

She notes it is based on the idea that ratification is a "democratic act" that we must follow. Reliance on history and tradition should only be used if it clarifies the originalist moment. She disagrees with how Thomas applied it. 

A striking point of Thomas' dissent was that he noted that the government could always convict a domestic abuser and put them in prison. The net value of liberty in that and allowing someone to be at home without a gun is unclear. 

I think Jackson provides the most honesty. The majority is a somewhat reasonable application of precedent. But, only tweaks the troublesome precedent, and a lot more confusion reigns. Plus, it does not there is a bit too much artifice. 

Next Week

There will be an Order List on Monday. An opinion day has been announced for Wednesday. There likely will be more. 

They might squeeze everything in two days but the Trump immunity case seems to be something you don't hand down along with four or five other opinions. 

Also, two executions are scheduled. 

A Couple Legal Developments

Aileen Cannon

A young and inexperienced judge was confirmed on November 12th, 2020. She was the new United States District Court for the Southern District of Florida. Trump lives in that area. How coincidental.  

Judge Cannon's handling of Trump's classified documents mishandling trial has been horrendous. She was strongly rebuked by the Court of Appeals when she appointed a special master after the FBI seized the documents.

Her decisions have not improved. Cannon's rulings repeatedly benefit the Trump side and are criticized for being shoddy. Lawyers and judges have cited her for bias. People, again not just Joe Smoes like myself, assume she is playing her cards in the assumption she will be nominated by Trump for an appellate judge slot. She should not be on the case.

A piece was co-written by Charles Savage, a veteran national security reporter, reported two of her colleagues agreed:

Charlie Savage and Alan Feuer reported that two of Judge Aileen Cannon’s more experienced colleagues on Florida’s federal bench—including the chief judge, a George W. Bush appointee—urged her to hand off the case of Trump’s retention of classified documents to someone else when it was assigned to her. They noted that she was inexperienced, having been appointed by Trump only very late in his term, and that taking the case would look bad since she had previously been rebuked by a conservative appeals court after helping Trump in the criminal investigation that led to the indictment. 

The fact that someone leaked this information underlines how concerned people are about the whole thing. Her latest pro-Trump decision, after suspending the trial indefinitely, was to refuse Jack Smith's request for a gag order after Trump lied about the FBI using dangerous lethal force when they entered his home to obtain the documents. 

I have seen multiple legal analysts insist there is nothing to be done. There simply are not likely grounds to require her to step down. If so, the law is an ass.

Louisiana Ten Commandments Law

Four civil liberties groups will sue the state of Louisiana after Republican Gov. Jeff Landry signed a law Wednesday that calls for the Ten Commandments to be displayed in school classrooms. The new rule applies to any school that accepts state money, including colleges and universities.

Kevin Kruse, who has written about Christian nationalism, discussed the law in the context of previous Ten Commandments displays. The Supreme Court upheld a Ten Commandments display law on a statehouse ground. 

OTOH, in 1980, they struck one down when placed in the classroom. The governor welcomed a challenge, thinking the current Supreme Court will go a different way. 

A fractured Court that still had Ginsburg generally accepted religious monuments in public places. The plurality opinion set forth multiple categories and school displays were separate. Since then, the "Lemon test" was firmly deemed overruled. Nonetheless, bad facts or not, the case officially dealt with private speech. (Coach Prayer Case.)

Some judges over the years have pointed to the secular purpose of Ten Commandment displays, including as a symbol of our legal origins. This claim is particularly hard to believe in this case, when backers of the law blatantly discuss the religious significance of the document.  

The other wrinkle, which might pick up a few votes, is that some justices question the standing to sue in many of these display cases. The justices think an "offender observer" does not have the appropriate legal harm. Again, how this will apply in the more sensitive area of minor school children, who have traditionally been treated differently, is unclear. 

Legal wrangling aside, the law is clearly unconstitutional and unwise. A blatant problem -- even if Scalia handwaved it -- is that there are multiple versions of the commandments. The state here crafted its own, inspired by the Ten Commandments displays created in honor of the 1950s motion picture. Religious people should be horrified. 

We shall see what happens. Litigation can take years. 

The law is part of a package of horrible bills described as "bills that will transform our education system and bring back common sense in our classrooms." 

Two other laws, likely also litigation bait, target student pronouns not matching their biological sex and the use of chaplains in public schools. The Baptist Joint Committee on Religious Liberty has been vocal about the latter. 

Another law is entitled "Prohibits discrimination based off vaccination status." As the BJC discussion shows, these laws (anti-trans laws are clearly a national menace at this point) are not only a problem in Louisiana. 

One More Thing: Japanese Reproductive Liberty

They must already have children and prove that pregnancy would endanger their health, and they are required to obtain the consent of their spouses. That makes such surgeries difficult to obtain for many women, and all but impossible for single, childless women like Ms. Tatsuta.

I won't analyze it in detail, but the NYT has an interesting article concerning a legal challenge in Japan about the right of women to obtain sterilization. It underlines the fundamental nature of reproductive liberty worldwide.

The challenge also has LGBTQ aspects since one litigant considers herself genderless and pregnancy appalls her. (I use the terms cited in the article.)  

One notable thing about Japan's legal system is that it is one of the few countries that has an active death penalty. 

SCOTUS Watch: More Opinions (Part I) and Ethics (Beat Goes On)

Ethics Again

Ian Milhiser is a liberal Supreme Court reporter at Vox. 

His takes somewhat too often lead with a scare -- will such and such do something horrible! -- but he does also try to balance things out. 

His take on the bump stock case granted there were different reasonable interpretations of the statute. The deciding factor was the ideologies of the judges. This is a "crit" take that was still more sympathetic than those who thought the majority opinion was ridiculous.  

Ian took the "realistic liberal, just stating the facts" approach in his commentary about "What can Democrats actually do about Thomas’s and Alito’s corruption?" And, he is correct that the blunt bottom line is "nothing" unless they win the election. Plus, to do a significant amount, you have to win both houses. The current odds are against that.

He does go too far. The "political theater" (people don't like that; confirmation hearings are sometimes labeled "kabuki" theater) has some value. He skipped over a roundtable discussion (they are in the minority; they can't have a "hearing") the House Democrats recently had. 

The media coverage (the Alito flag author over at NYT now has a piece on the behind-the-scenes happenings in another gun case) has demystified the Supreme Court. Its reputation has fallen. 

If Sen. Dick Durbin had hearings, instead of merely saying how concerned he was and writing letters, it could help too. It will assist in having people know what they are voting for. Congressional oversight is important. The Republicans are often using it for trolling these days.

Still, even there, House Democrats have responded and hit some targets. 

Opinions 

Amy Howe had a convenient summary of the outstanding opinions. No "hot button" ones were decided today. 

Taxes/More Alito 

Chris Geider (Law Dork) has written about the problem that is Justice Alito. Alito's failure to recuse in a tax case is but one data point. Toss in the flags and 1/6 cases. 

Alito joined Barrett's concurrence, which upheld the tax more narrowly than Kavanaugh's opinion. Thomas (with Gorsuch) dissents. Jackson concurs to emphasize that Congress has a broad power to tax. The result is not too surprising though it all took over eighty pages to explain.

The case involves a tax that was alleged to not be covered by the Sixteenth Amendment. It's one of many overreach jobs, some of which the Supreme Court reins back some. Hint: whenever people try to say something is that obscure animal a "direct tax," it's an unlikely story. 

Paul Ryan was okay with this tax and warned about the breadth of the challenge. Time will tell if a broader "wealth tax" will also receive five votes.  

Fourth Amendment 

The presence of probable cause for one charge in a criminal proceeding does not categorically defeat a Fourth Amendment malicious prosecution claim relating to another, baseless charge. 

Kagan wrote a minor Fourth Amendment opinion. Thomas (with Alito) and Gorsuch dissented. It all took eighteen pages.  

Expert Testimony

Persuaded that today’s decision is mistaken, but hopeful that it will ultimately prove immaterial in practice, I respectfully dissent. 

Gorsuch (with Kagan and Sotomayor) dissented in a case involving the proper rules of expert testimony. Jackson concurred, writing separately to clarify her position. 

Thomas had the majority opinion. The excerpt suggests the likely narrow reach of it all though there were 32 pages of opinions, which is a somewhat moderate amount these days.  

First Amendment

Amy Howe summarizes the issue in the last opinion, disposed of by a short unsigned opinion thusly:

The question comes to the court in the case of a 76-year-old Texas woman who was arrested after she – accidentally, she claims – picked up a petition that she had initiated and placed it in her binder after a long meeting. She was charged with violating a state law that prohibits tampering with government records.

The case concerned the proper rules to raise a retaliatory arrest claim. The per curiam narrowly allows her to raise it. We do not know who wrote the opinion. Passing annoyance: the use of a universal male pronoun in a case involving a woman.  

Alito has a much longer concurrence. Kavanaugh concurs basically to say he wouldn't have taken the case, but the opinion is "no harm, no foul." Jackson with Sotomayor concurs to welcome a broader opinion with a footnote criticizing Alito. Thomas dissents.

There are also the inside baseball musings on why this was unsigned. The suggestion Alito had an opinion but lost it makes sense. He might have had the case but went too far for too many justices. The result is a per curiam that did little.

===

The Moore tax case is somewhat significant. The others are more flyspeck cases. We are running out of them though there is an interstate water rights case that sounds right up the "give it to the rookie" alley. More opinions tomorrow.

Also, there was a conference today. Order List on Monday.

Meanwhile, yes, opinion announcement audio should be available along with a transcript. 

Some Books

And Also: I should add here that the Mets have been doing well. They won seven in a row before finally losing a close game. The Mets are still under .500 but with the weakness of the NL, they are in the Wild Card Hunt. 

Jeffrey Moussaieff Masson is an expert on Freud, psychotherapy, and related subjects. He also wrote many books about animals. 

The Cat Who Came In From The Cold is "a fable" about the first cat who decided to stay with humans. The cat travels around India, talking with different animals about their relationship with humans. An imperfect one at best, the cows perhaps particularly not that impressed ("sacred cows").

It is a charming little book with some lessons along the way.

===

“When you’re actively listening, you’re not just receiving information, you’re saying something even when you’re not even speaking.”

“Listening skills will help you in pretty much every relationship – professional, personal, or some combination of the two.”

Being a good listener is “about noticing cues that signal something might be up, responding to shifts in tone or topic appropriately, and knowing how to ask questions that open a space for discussion.”

Say More: Lessons From Work, the White House, and the World by Jen Psaki is not a regular memoir. The subtitle tells it all: it is more of an instruction manual about communication with wide applications. She has a lot of good advice. Sometimes, I wished she had a final checklist or something to sum things up better! 

I miss her being President Biden's press secretary. Her replacement is likely quite qualified in various ways. Nonetheless, Psaki has a certain ease up there that made it enjoyable to watch. Karine Jean-Pierre has a less smooth approach. It comes off as more scripted and forced. Not "must see."

==

I enjoyed a young adult book on the creation of the Universal Declaration of Human Rights. The author is best known for her fiction. Nonetheless, the book crisply summarised the basics. 

The longer (still reasonable length) book by Mary Ann Glendon (perhaps best known for her conservative-leaning legal philosophical views on subjects such as abortion) did not really add much more. 

A World Made New (written around twenty years ago, but nothing much changed) adds a few details. The best chapter might have been a short one discussing how a special panel independently agreed that there were certain universal dos and don'ts that the world's society could agree upon. This belies the concern that there are really no universal truths. 

It was a good read overall. Still, the other book was fine.

==

I should add -- since I used my entry on Christine Blasey Ford to mostly talk about the issues -- her book is well written. She has an honest and open tone that is very appealing. Not bad for a first book by a person who specializes in data and research. Yes, she is a professor too so has some skills in translating stuff for an audience.

===

The new book (Undue Burden) on multiple human stories regarding life after Roe is a major accomplishment. I just did not have it in me to read around three hundred depressing pages of stories.

I also thought the introduction was too strong. Roe v. Wade was not "clearly" on the way out for years. It was a close thing that it eventually overturned. If Ruth Bader Ginsburg lived a few more months, things could have been significantly different. 

I re-read the shorter Generation Roe by Sarah Erdreich. I briefly talked about the book here back in 2014 (sigh):

It is quick reading and covers standard ground from an activist's perspective c. 2013. Some good stuff included: perspective of medical students, abortion portrayal on t.v. and the conservative nature of big abortion rights groups. References but does not discuss, to its detriment, the abortion battle during the ACA legislation process.

I suppose the matter has gotten better, but one thing that stands out there is the portrayal of abortion on television and films. I don't begrudge a film like Waitress (for purposes of plot; she also lives in the South, where certain values could have been drilled into her) but too often the idea on television is that people who would otherwise have an abortion for a variety of reasons have the baby. Abortion is a common procedure. You might never know it from its portrayal on television, especially back in the day. 

Early Voting: Not For Me

We are amid early voting in New York, which started last Saturday. Since it began, I took part, recently in a polling location a few blocks away. There have been three different polling places since it began.

April was the presidential primary. Now, we have the state primaries, including the state and federal legislatures. And, other local races, including some judicial races. I thought my federal representative (Rep. Ritchie "not AOC" Torres) had token opposition, seeing something a few months ago saying as much.

But it looks like I mistook a third-party candidate as his Democratic opponent. No candidate is running in my district. Two responses. (1) I wanted to vote against Torres in the primary. (2) It annoys me more since I usually get to walk a few blocks to serve as a poll worker. Now, I have to trudge somewhere around a half hour away. Plus, this means I do not have my usual comfortable spot. I'm just some newbie filling in. Blah.

This is another result of the New York re-districting follies last time around. There was a lawsuit, the map was declared unconstitutional under the state constitution, and I lost AOC in the process. Her district is under a block away. I have a "pragmatic" liberal now.

Torres is botherwise for two basic reasons. First off, he is over the top regarding Israel. Two notable data points there:

He has made that clear on his personal X account, with half of his posts, retweets or interactions since Oct. 7 being about Israel. Torres’ campaign was among the top recipients for AIPAC contributions, collecting nearly $600,000, according to a review of his campaign filings.

I'm at best wary about the U.S.'s strong support of Israel. I'm sympathetic to those going the other way. Torres takes no prisoners. It is part of the second part about him that annoys me. He comes off as an over-the-top jerk on certain issues. For instance, there is room between not supporting "Defund the Police" and saying something like:

“any elected official who’s advocating for the abolition and/or even the defunding of police is out of touch with reality and should not be taken seriously.”

Then, there was something I flagged on the blog earlier when he compared Assemblywoman Niou's failure to concede in a very close race where the liberals split the opposition vote (the Democratic primary winner received about 26% of the vote) right away. The official count was not out yet. Torres compared her actions to election denial. It's a bullshit reference against someone who was a great liberal voice in the state assembly.

Torres is on the correct side on most things. Nonetheless, his over-the-top take on Israel and acting like an asshole in various ways generally turns me off. A primary vote is a good place to at least symbolically show your opposition. AOC has an opponent. If she was still my representative, I would be five minutes away from the polling place.

Torres gets a profile in the paper and saw some accounts suggesting he thinks he has a big future. If people want to vote blank in the presidential primary to speak their minds on Israel, how about running against Torres? Well, yes, that is somewhat more expensive.

Torres received around 85% of the vote in the general last time. So, if I wanted, it would not be a big deal if I wrote in someone's name or something. Sometimes, voting third party or whatever is okay. Still, I rather not do that, symbolically at least, given the general stakes.

The primary is the time to vote more to the left or right (as appropriate to your tastes). Or, sometimes, just for the best person, wherever they are on the spectrum. It also helps to keep the incumbents somewhat honest, especially when they are (as they often are) in safe districts.  

Oh well. It is a bummer. 

ETA: One striking thing regarding Torres' one-note Israeli policy is that there is a strong Arabic presence in my neighborhood. I assume, if anything, these people are likely more pro-Gaza than pro-Israel.

There are multiple stores with Arabic writing and/or providing Arabic-friendly items. I have also seen more women in full covering, a family of women, or whatever at the supermarket just last night. 

I suppose many of these people are not citizens yet and/or do not vote. Nonetheless, I myself saw one person want to protest on their ballot in the last election. I doubt this was some sort of outlier. I have never seen any reference to this in coverage. But, it is another reason I find his one-note views on the subject so troubling. 

Compare, for instance, President Biden's attempts to show he is supportive of the concerns of Muslims. Yes, I know, not every Muslim or Arab person here will have the same views. But, I'm thinking median position. 

Jamaal Bowman Race

The biggest local race is another "pragmatic" opponent to a strong progressive, Jamaal Bowman. Bowman had a few words against Torres, particularly on Israel. 

I'm tired of watching Bowman's opponent badmouth him as if Bowman was somehow not a Biden supporter because he at times had a dissenting vote on the left as a protest vote when his vote didn't matter. In Biden's Administration, progressives have consistently been reliable. Biden at times had more trouble from the right side of the party.

Chris Hayes had a segment on the funding of the opposition. He shows the vast majority is coming from pro-Israel groups, often funded by conservatives. And, the ads do not talk about Bowman's position on Israel. They focus on Bowman's supposedly not being on Biden's side. 

So, on top of it all, there seems to be some bullshit -- the ads suggest the backers suppose the constituents are not even too upset at Bowman's position on Israel. Hayes did note a smaller funding stream did have ads on Israel. But, this time, the backers are cryptocurrency types. 

Bowman's position on Israel, some more conservative parts of his district, and some mostly vague "missteps" (he got caught pulling a fire alarm supposedly to delay a Republican vote, which is mostly embarrassing) left him vulnerable. Cynical heavy spending (the "most expensive" primary according to Chris Hayes) helped a lot. 

Bowman was on Colbert's show tonight. So, there's that. Colbert's audience gave him loud applause more than once. I will be upset if he loses. the guy he is running against comes off as something of an asshole. 

I am, of course, a bit biased about that. But, he does. It is a heavily blue district -- which is why Bowman can be a strong progressive who dissents from Biden's more median approach (necessarily) sometimes! So, the primary is key. 

Maybe, Bowman will go back to being a school principal. 

Juneteenth

Juneteenth became a national holiday in 2021. 

The holiday celebrates the end of slavery in Texas. As Vice President Harris recently said:

For more than two years after the Emancipation Proclamation was signed, as we all know — two years after — hundreds of thousands of Americans in Texas were still enslaved.  Then, Union troops arrived in Galveston, and on June 19th, 1865, the enslaved people of Texas learned they were free.  On that day, they claimed their freedom. 

And today, as we celebrate Juneteenth, together we are reminded of the promise of America: a promise of freedom, liberty, and opportunity not for some but for all. 

In many ways, the story of Juneteenth and of our nation is a story of our ongoing fight to realize that promise, our ongoing fight to build a nation that is more equal, more fair, and more free; a nation where every person has the opportunity not to just get by but get ahead.

Since taking office, with the support of so many of the leaders here today, President Biden and I have continued that fight. 

Juneteenth celebrates the day that slaves in Texas found out they were free. The Emancipation Proclamation declared slaves in areas under Confederate control immediately free. Nonetheless, the law developed that freedom came when Union troops controlled the area. See, e.g., John Fabian Witt's Lincoln's Code.

Texas was the last state controlled by Union troops, the surrender of Kirby-Smith's forces coming in early June 1865. For those who like to know all the details, President Andrew Johnson officially declared the Civil War completely over the next year, when Texas organized a new government. See the note at the last link.

I write various comments about the holiday and slavery in remarks in the thread here ("Joe from the Bronx"). Some argue the ratification of the Thirteenth Amendment is a better day. The ratification took place in December, which is the heart of its own holiday season.

Juneteenth has over the years been celebrated as a day in honor of freedom from slavery. It is partially a logical day since this is the time of year to celebrate our values (Flag Day and Fourth of July). The holiday celebrates something that deserves its own holiday. Carping on date placement is silly.