A Most Peculiar Book

I have long been interested in the Bible. I have multiple (Christian) bibles, including the Good News (great basic drawings) from high school. An open-minded, questioning, and informed understanding of the complexities of the book* is best.

A Most Peculiar Book: The Inherent Strangeness of the Bible by Prof. Kristin Swenson is a helpful addition to this approach. She has another like it. 

Bart Ehrman, who provides a supportive blurb, has noted his books cover ground familiar to many clergy who learn the material in college and graduate school.

Often, to his annoyance, they don't share the complexities with their parishioners. I think long-term, it would be better if they did. Some believers might be upset. Others would find it rewarding. 

Neither a simplistic support nor rejection of the Bible is the ideal approach. A deep dive, at the very least, will bring up quite a lot of interesting and strange material. It is helpful to have some humility about what we can know about the material available. 

We are dealing with long-ago material in foreign languages where the very translation is sometimes in doubt. Often, some nuances require a close reading of the text, including the original language and context. 

Realistically, believers are going to miss some of this stuff, and the text will be channeled through modern eyes. This is not a new concept. 

For instance, Matthew used a Greek translation ("young woman" vs."virgin") and missed certain nuances. For instance, he had Jesus enter Jerusalem on two animals, which appears to be an overly literal understanding of a Jewish text that used a poetic doublet. Likewise, Chronicles reinterpreted certain events because Jewish doctrine changed. 

The material also welcomes multiple interpretations, often involving bare bones narratives where you can fill in your own details. More people should carefully read and discuss the material. 

This book is sometimes a bit rough regarding how things are explained. I would have expressed certain things somewhat differently. I don't claim some special skills here. A good, smooth account, not too detailed but detailed enough, is tough! 

But, overall, worthwhile. 

==

* As noted by Swenson, it is somewhat misleading to speak of "the book" when there are a variety of Jewish and Christian scriptures. For instance, Catholic Bibles have additional books, including the Maccabees. 

I will also again recommend the writings (RIP) of Rachel Held Evans, especially Inspired. She loved the Bible, like Swenson does, and carefully researched her material. She was also a strong feminist voice, which you will find is a far from unique quality here. 

SCOTUS Related News

Originalism 

This blog post on originalism is interesting even beyond the specific allegation. Originalism appeals to people for various reasons. Sometimes, outdated bad stuff helps conservatives. 

When they want to support things that actual original understanding might not support (e.g., campaign finance bans or regulatory takings), they find a way around it. It's a bit of Calvinball. 

For instance, Dred Scott v. Sandford had to play with history. The dissents show another path.

Brazil Recognizes Rule of Law 

Bolsonaro to Start Serving 27-Year Sentence Over Coup Plot

Trump v. U.S. and the end of the Georgia prosecutions are not the only way. Multiple former Brazilian leaders were prosecuted for crimes. 

I still don't understand, regarding the Georgia news, how some ethical issue involving a romantic relationship with the third choice for prosecutor was some sort of due process issue. Fani Willis at most should have gotten an ethical slap on the wrist. 

As with Trump v. U.S., there was no need for the state supreme court to take the case, delaying things until after the election, which sealed the deal. And that included many state defendants who still could have been prosecuted now. 

Limited Security Funding 

As judges face more threats, only the Supreme Court gets new security funds

The number of judicial threats has increased over the last ten years. Trump's vitriol does not help. It led to multiple threats and even some actual sanctions during his civil and criminal trials. For what good that did.

The failure to provide more security funds for lower court judges (tough on crime!) is suspicious.

According to several former judges, the money issue has also fueled perceptions that President Donald Trump’s administration and its allies in Congress have politicized judicial security. In hearings this year on the judiciary’s budget, some Republican lawmakers criticized judges who had ruled against Trump’s policies and pressed judiciary officials who testified on whether they would try to rein in what the lawmakers called a partisan judicial process.

Right-wing attacks are not the only cause of judicial threats. Vitriolic attacks from the top, however, matter. It worsens the situation. It leads to some more harassment. An article linked to the recent piece notes:

A simpler solution, several former judges said, would be for Trump administration officials to cool their rhetoric, which they believe fuels threats from extremists and fanatical supporters. While the White House has denounced violence against judges, President Donald Trump and some of his most powerful allies have continued to use inflammatory language to lambaste those who rule against administration policies.

In social media posts Wednesday and Thursday, top Trump adviser Stephen Miller called a federal trade court’s ruling against the president’s tariffs a “judicial coup” and reposted photos of the three-judge panel, saying, “we are living under a judicial tyranny.” 

[More here.]

More Trump News 

The Supreme Court *delays action* on Trump's request to fire Shia Perlmutter, the register of copyrights at the Library of Congress, pending the court's decision in two upcoming cases about the president's authority to fire federal officials. Thomas would let Trump fire Perlmutter now.

(Mark Joseph Stern on Bluesky regarding a Wednesday Order. No discussion from justices.) 

The second case is scheduled for January, so it will take some time. Meanwhile, the justices will be back on Monday with stuff scheduled until the 15th.

Trump's Thanksgiving Messages

Two National Guard members, who shouldn't have been in harm's way,* were shot in D.C. Army Specialist Sarah Beckstrom, 20, has died. Or, as the NYT dubiously phrased it, "succumbed to her wounds."  

(Air Force Staff Sgt. Andrew Wolfe, 24, remained in critical condition on Thursday after undergoing surgery.)  

Of course, Trump and company exploited this. First, more troops will be sent, which is akin to filling a hole by digging deeper. Second, it was used for by now mundanely horrible attacks on ("Third World") immigrants. 

Trump's comments on Thanksgiving included calling Gov. Tim Walz (who has a disabled son) "seriously retarded.") and crude attacks on the cultural/religious garb of a member of Congress (no kewpie doll for correctly citing the person).

His attack on "anti-American" types is rather ironic. Trump's official Thanksgiving message had the not ideal mix of religious and partisan messaging. 

His secondary message is much worse, including the usual unhinged references to the "Autopen approval process." Where's the 25th Amendment when you need it? 

The suspect is "an Afghan man who once served in an anti-Taliban force supported by the C.I.A." (to quote a NYT article). See also this report on how veterans are disproportionately on death row. 

Trump blamed Biden for the suspect obtaining refugee status, though he came here this year during the Trump Administration. The fact that President Biden provided refuge for "anti-Taliban forces supported by the C.I.A.," generally speaking, is "duh" territory. 

(Surely, any refugee program should have some safeguards. But now that we have Trump in power, surely, that will be covered too, correct?)

Trump's conveniently on-brand anti-certain-immigrants response to a special type of refugee/immigrant is a problem even without all the other baggage involved in the message. The ability to obtain the support of other nations when we need it will meanwhile be made that much harder. 

Anyway, I look forward to his Christmas Message, which will surely make King Herod (whose physical and mental state near the end was iffy) proud.

(Portrayed by Antonio Banderas in Journey to Jerusalem, a musical version of the Nativity Story.)

Some will continue to say "I voted for this." Others who did will be concerned while their Republican representatives do little or nothing in response. 

I understand those who see a possible light at the end of the tunnel, including the 2026 elections. But, at risk of violating Godwin's Law (which is not violated when the reference is correctly applied), the Germans continued to cause damage until May 1945.

==

Note: Chris Geidner, the author of that discussion, resides in D.C. He did not use the term "jackbooted thugs," which some might recall from back in the day.

His concern about not needlessly placing civil or military personnel in harm's way, however, does have a broad application. The same applies to the use of force overall, which sometimes will result in needless tragedy. Conservatives and libertarians, somewhat selectively, are concerned with such things.  

Happy Thanksgiving

Friends had some very good Thanksgiving episodes, including one with Christiana Applegate. The friends were a family. The first season episode emphasized that -- they came together because they could not have dinner with their own families (Phoebe's grandmother celebrated another day).

Here is a history of Thanksgiving I wrote for another website. Harvest celebrations have ancient roots. The French and Spanish celebrated "thanksgiving" with Native Americans. Our modern Thanksgiving holiday was established in the 19th Century. 

Presidential Thanksgiving proclamations also began early. Like Trump's, they had a religious flavor, giving thanks to God. This led President Jefferson to reject the practice, particularly a congressional instruction to provide one. He thought that was a violation of the First and Tenth Amendments.

Presidential proclamations are also cited to justify other governmental endorsements of religion. Jefferson's principled stance is appropriate. At least, in today's world, any proclamation should be comprehensive. 

Justice Blackmun noted some Thanksgiving proclamations were blatantly sectarian. People can complain that some go too far regarding "Merry Christmas," which is a fake issue anyway. But recognizing the nation's diversity is appropriate. 

Personal statements by governmental officials are also not the same thing as showy endorsement. A large cross or Ten Commandments monument is not akin to some words nearly no one reads. 

Thanksgiving, as a basic concept, is fine. It has some baggage, including regarding Native Americans. Food can also be an issue, especially for vegans and vegetarians. There are plenty are options for an animal-friendly meal. Not all involve Tofurky.

Our troubling times also might lead people to be grumpy about giving thanks. For some people, holidays are especially stressful times. We can respect that. We should try to help those who need help. That includes those without much of a family.

At the end of the day, most of us have something to be thankful for. Giving thanks doesn't handwave all the problems. So, pessimists can be satisfied too.

Trump DOGE and Foreign Policy Follies

Paul Krugman's discussion on the privacy invasion involved with DOGE (remain that?) reminds me of a 1970s Supreme Court opinion that upheld a regulation of prescription drugs. 

The opinion has helpful dicta spelling out the contours of the right to privacy. It noted:

A final word about issues we have not decided. We are not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files. [Footnote 34] 

The collection of taxes, the distribution of welfare and social security benefits, the supervision of public health, the direction of our Armed Forces, and the enforcement of the criminal laws all require the orderly preservation of great quantities of information, much of which is personal in character and potentially embarrassing or harmful if disclosed. 

The right to collect and use such data for public purposes is typically accompanied by a concomitant statutory or regulatory duty to avoid unwarranted disclosures. 

Recognizing that, in some circumstances, that duty arguably has its roots in the Constitution, nevertheless New York's statutory scheme, and its implementing administrative procedures, evidence a proper concern with, and protection of, the individual's interest in privacy. 

We therefore need not, and do not, decide any question which might be presented by the unwarranted disclosure.

[Paragraph breaks added.]

DOGE had other problems, including the horrible effects of the stripping of foreign aid, which led to a "legacy of death." More State Department news:

State Department Human Rights Reports Will Have Changed Focus

One article cited provides a taste:

The Trump administration is overhauling the State Department’s annual reports on global human rights, emphasizing entitlements “given to us by God, our creator” and issuing new guidance for U.S. diplomats to scrutinize the prevalence of abortion and gender-transition surgery among children.

We are told that the Trumpies provided an "unapologetically U.S.-centric and religiously tinged view of human rights." "U.S.-centric" here is akin to "value voters" in 2004 or often "Christian" today -- it means "a certain breed of conservative." 

For instance, the inability to obtain trans care and abortion services is not likely to get similar scrutiny. On some level, different administrations are likely to have different values here. Still, it's useful to not use supposedly neutral terms that are applied selectively. 

The general idea that this administration can be trusted with human rights has a feel of entrusting foxes with the rights of chickens. Happy Early Thanksgiving. 

SCOTUS Watch: Orders

Texas Restricting

I started this blog in the middle of the first Bush43 Administration. Various shenanigans going on now, including mid-decade redistricting to obtain partisan ends, went on back then, too. A feeling of deja vu.

A 2-1 Fifth Circuit opinion provided a surprising win for the Democrats when the mid-decade Texas redistricting (which led to a retaliatory California effort) was struck down as an illegitimate racial gerrymander. Trump Administration shenanigans were involved. Their incompetence strikes again. 

The Supreme Court earlier held that political gerrymanders are non-justiciable in federal court. The Rucho opinion ended a 4-4-1 stalemate where conservatives wanted to prohibit such appeals and liberals tried to get Kennedy to agree to join them the other way. Kennedy, while not giving a firm "no," never gave them that fifth vote. 

The Supreme Court left such appeals open in the 1980s. I don't know how much the federal courts actually restrained the process. 

I am not aware of any SCOTUS case that struck down a partisan gerrymander (racial gerrymanders were found). The blog discussions against Rucho tend to skip over that part. Not saying Rucho was meaningless. Curious how much it changed things.

There was a very unhinged (and somewhat counterproductive) dissent to the court of appeals opinion. Justice Alito on Friday granted Texas an "administrative stay" on Friday and sped up the briefing. A response is required by 5p.m. today. 

Never-ending drama.

Order List 

Today's Order List is the last thing scheduled until the beginning of December. It had some interesting bits.

As Chris Geidner noted on Bluesky:

The Supreme Court grants no new cases for merits review in today’s orders list, but it does summarily reverse two lower court rulings in criminal cases—one holding a constitutional error in a Mississippi trial, the other holding the Fourth Circuit improperly ordered a new trial in a Maryland case.

The Mississippi case struck down as unconstitutional a law providing a blanket ability to screen child witnesses. A split SCOTUS opinion earlier upheld the practice, but held it must be "case specific." The Court, in a five-page opinion, left open the possibility that the screen would be harmless error in this case.

The case first came last spring and was distributed to multiple conferences. This suggests some concern. I think the case should have been accepted for full review and oral argument.

The Court also (again) refused to take a case to reconsider the Feres doctrine regarding immunity regarding certain military claims. 

Gorsuch would have taken it. Thomas again wrote to explain why he thinks so, too. Sotomayor is sympathetic but argues that stare decisis warrants leaving it to Congress to fix. She makes a good case. 

The petition for a writ of certiorari is denied. The Chief Justice and Justice Alito took no part in the consideration or decision of this petition.

Only Kagan and Jackson (and somewhat inconsistently Sotomayor) deign to explain why they recuse.

===

The justices will hold oral arguments in the first two weeks of December. 

Then, there is an Order List scheduled for 12/15. That is the last thing scheduled for 2025. 

Other stuff is likely to drop.

ETA: A reference in my daily SCOTUSblog email warrants an addendum.

plainly, courts “call balls and strikes”; they don’t get a turn at bat

The second criminal per curium given short shrift in my comments drops a "balls and strike" reference. 

The lower court explained how the Supreme Court allowed them to raise a problem with a trial that was not cited by the petitioners. So, it is unclear whether the justices were right to call them out here. 

But, overall, the justices don't just call balls and strikes. The Supreme Court repeatedly gets a turn at bat, including changing the questions raised by the lawyers for appeal. 

They also have a lot of power over the batters, including who will get a time at bat, when they will get a time at bat, and what they should do there.

The per curiam quotes an earlier opinion (by Kagan):

In line with our duty to call balls and strikes, we granted certiorari to resolve the split, 589 U. S. ___ (2019), and we now affirm.

Do umpires generally "call balls and strikes" by settling nationwide disagreements on strike calls via official statements of what the rules are?

Meanwhile, here's some more (from me) on judicial review, one of some new essays on that website. 

Jeffries Challenger Blocked

I understand why Mamdani pragmatically opposed a primary challenge to Jeffries. But it is still bothersome. And, a path to victory is not the only reason you do it. You also do it to help push candidates to your side and to promote your cause.

NY Giants Find a Way to Lose (Again)

 

Blow a 4Q lead (59 yd FG) late. Lose to Lions in OT. 

"Is C-Span Bad for Democracy?" No

His hot takes on another blog were a rare opportunity for two sides in the comments to agree that he was wrong. I know the drill about "someone is wrong on the Internet," but this sort of thing is referenced now and then. So, let's cover it. 

GM sometimes has some interesting comments. Other times, including supporting 14A, sec. 3 disqualification (that had NO realistic chance of going anywhere) over impeachment, he is off base. 

He is here regarding televising things. 

Does he think the Watergate hearings being televised was problematic, too? Television has long been denounced (back to the "wasteland" days). It is a mixed bag. 

Does television lead to "verbal slugfests" in committee hearings? Yes. There is a chicken/egg quality here. Person-based politics is generally the norm today for a variety of reasons. 

Most of them, however, get quite limited coverage. Some hearings are available at most online; the three C-SPAN channels only provide so much. 

The limits of the information collection value of hearings have often been cited. They are cited as "kabuki theater." There is some exaggeration to such complaints. Plus, the critics are rarely likely to watch many of these hearings. 

But television doesn't prevent alternatives, as seen by old-time television hearings back in the day, when the methods used were different than today. For instance, television doesn't prohibit the usage of counsel to be in charge of questioning (or use that much more). 

How much more "productive and informative" would daily White House briefings be if they were not televised? The usual suspects would still find ways to keep track, including quoting key bits. 

White House press briefings were established in the first place partially to game the system in support of the White House. It wasn't just for a neutral respect of information release. 

Meanwhile, the public would not have an easy way to access them. Either way, like the Internet, video is here. We need to use them in the best way possible. 

Put another way, has greater transparency improved Congress’s work? I don’t think so. Nobody thinks that Congress is better now than it was in, say, 1980. 

Congress not being better now can be explained in various ways. C-SPAN is fairly far down there as a reason. C-SPAN also isn't just about congressional coverage. It has various other benefits that could help balance the books, even if it is "bad for democracy" in some respects regarding televising governmental proceedings.

In that sense, I support the Supreme Court’s exclusion of cameras from argument. (Personally, I don’t like the live streaming of arguments, but it’s not terrible.)

Lots of courts, here and abroad, provide televised coverage. How television coverage there would change things for the worse is patently unclear. 

The "playing to the camera" stuff present in Congress also does not have a clear overlap in the courts. Some of that was already present anyhow.

(Supreme Court oral arguments used to be more of a public event, in the early 19th Century, than they are today.)

The streaming of oral arguments being bad warrants more detail. A "hot bench" was present for years, with Scalia basically being a pioneer. Livestreaming has not changed the equation much at all there. 

Meanwhile, it gives a chance for legal analysts to comment on the proceedings. This provides the public with more information. How is this bad? 

The lack of televised hearings denies the public (and legal minds in particular) a chance to see the Supreme Court at work. This helps to provide an artificial view of the Court. 

The press is now a gatekeeper, and it only provides a limited view of things. For instance, there was a non-argument public proceeding on Friday. 

What happened? Probably swearing in people. But where has the press noted this? Thus, the Court operates in the shadows. Does GM support that, too?

Fire burns. Sometimes, it can burn your fingers. The aim here should be to improve televised coverage, not provide quixotic appeals to less transparency. 

ETA: This follow-up is also unconvincing.

19th-century legislators gave speeches aimed at their constituents. The empty chamber concept is not novel.

Some justices will grandstand. Doesn't change that televised hearings inform the public. Some bitter will come with the sweet. What else is new?

Unbearable

Unbearable: Five Women and the Perils of Pregnancy in America by Irin Carmon is a well-written book that underlines the importance of reproductive justice. It is passionate, informative, angry, hopeful, and empathetic. It is also about some men. 

Carmon earlier co-wrote a book about Justice Ruth Bader Ginsburg. As a mother of young children, she lived it as well. 

Reproductive justice is a united whole, involving good, respectful medical care and resources before and after having a child, miscarriage, or abortion. Abortion rights were fit into a privacy frame in Roe v. Wade because that was the logical approach at the time. It was framed as a private act between a doctor and patient, which was open to reasonable regulation. 

Later, equality was mixed in more, as gender equality precedents developed. Reproductive justice was always mixed in. It became more prominent later on. 

Case law underlines the complexities. We have birth control cases. Cases involving pregnant teachers forced to leave work mid-pregnancy. Cases about breastfeeding. And much more. 

(The link at the top is Melissa Murray's interview with the author. She wrote a personal review of the breastfeeding-related book linked above, too.) 

One tragedy, in my eyes, is that not enough Supreme Court cases connected all of this into a united whole. Abortion cases were about applying a ready-made doctrine. They often involved lots of regulations at once. Individual stories and how they fit into a united whole of constitutional liberty lost out. 

The book concerns five women, including someone trying to get pregnant (also a lawyer), a doctor, and three women's experiences before and after being pregnant. They live in New York and Alabama.

The author was about to give birth herself when Dobbs was handed down. The book also has a spoiler in the table of contents. I awaited the shoe to drop.

Six Dems Speak About Unlawful Orders / Trump Wants Them Dead

The video she references features Senator Elissa Slotkin (D-MI), Senator Mark Kelly (D-AZ), and Representatives Chris Deluzio (D-PA), Maggie Goodlander (D-NH), Chrissy Houlahan (D-PA), and Jason Crow (D-CO). More than one of these people is the sort some people deem too darn moderate. 

Slotkin is a former Central Intelligence Agency (CIA) officer. Kelly was a captain in the U.S. Navy. Deluzio served in the U.S. Navy. Goodlander is a former intelligence officer. Houlahan served in the Air Force. Crow is a former paratrooper and Army Ranger.

So I will say in my specific instance that I have had a few conversations with people who have indicated discomfort with sort of the current state of affairs. I know my colleagues have had similar kinds of conversations. But what I would say is this is, as I mentioned, kind of not a specific event but rather a culmination of all of these kinds of things that have resulted in us feeling like we really needed to make sure that we told people that people like us sit in places like this with backgrounds like theirs, and we want to make sure that they remember and understand that we’re here for them. And that they need to remember and understand that they need to uphold the Constitution in their jobs.

Rep. Houlahan, who filed a complaint with the Capitol police regarding Trump's threats, discussed the matter with Greg Sargent. Let's read what they said:

We know you are under enormous stress and pressure right now. Americans trust their military. But that trust is at risk. This administration is pitting our uniformed military and intelligence community professionals against American citizens. Like us, you all swore an oath to protect and defend this Constitution. Right now, the threats to our Constitution aren’t just coming from abroad, but from right here at home. Our laws are clear. You can refuse illegal orders. You can refuse illegal orders. You must refuse illegal orders. No one has to carry out orders that violate the law or our Constitution. We know this is hard and that it’s a difficult time to be a public servant. But whether you’re serving in the CIA, the Army, our Navy, the Air Force, your vigilance is critical. And know that we have your back. Because now more than ever, the American people need you. We need you to stand up for our laws, our Constitution, and who we are as Americans. 

Some people are gaslighting (yet again) and acting like they said this out of the blue without cause. Patently absurd. For those who want some details, see here. The blatant case, leading to at least one major resignation, is the murderous Caribbean strikes. 

The matter was also discussed in this comment thread. Suffice to say, they are not guilty of "sedition" or worthy of the death penalty. There is also a high test before you can refuse to follow orders. One rule cited was "or a person of ordinary sense and understanding would have known it to be unlawful." 

(Marty Lederman elsewhere argued an official supporting opinion from the Trump OLC would likely be a CYA if anyone following orders was legally prosecuted. Generally speaking, don't hold your breath regarding consequences.) 

Trump's rhetoric is dangerous. We have been down this road before, including his repeated acts of contempt of court during his civil and criminal trials for which he got NO consequences (pittance fines don't count). This guy is a menace. 

There has been an uptick in threats to judges in recent years. His remarks also threatened witnesses and others, opening them up to harassment and worse. We ("we" particularly being the media and Republicans) take things much too much in stride. 

A few Republicans pushed back at Trump's welcoming of the prosecution and execution of fellow members of Congress. Graham, with a military background, denounced both sides. 

Rand Paul, the now and then libertarian who usually supports the Republicans, was concerned. Thune didn't support the response but argued the video was uncalled for. Not too impressive from the tyrant loyalist caucus. I'd like a poll of Republican congressional members who are former military. 

Anyway. These six members are not Bernie Sanders types. (Well, TBH, I am not familiar with most of them; Slotkin and Kelly surely are not.) They have their moments. Slotkin had a very good response to Trump's speech to Congress earlier this year.

Trump is a tyrant. People in power should treat him and his minions accordingly. Thank you. 

Richard Barry Randolph Execution

A man convicted of raping and fatally beating his former manager at a Palatka convenience store [in 1988] is scheduled to be put to death next month under a death warrant signed Tuesday by Gov. Ron DeSantis, who is setting a record pace for executions.

A brief in an earlier failed SCOTUS appeal noted the jury chose death by a vote of 8-4. The Supreme Court repeatedly failed to take cases to address old cases without a unanimous jury in capital cases. 

Nonetheless, it is troubling to execute someone when one-third of the jury disagrees. I also continue to find it constitutionally problematic to execute someone after a long, long time (here over thirty-five years).

(See, yet again, Justice Breyer's dissent.) 

Richard Randolph's lawyers failed to hold up the execution, raising many claims. SCOTUS, without comment, turned away a final appeal today. 

Of the 43 executions so far this year, 34 involved at least one female victim. Of those, 21 cases involved sexual violence against the women and six were attacks on domestic partners.

Florida is playing catch-up, leading all states in executions in 2025. It has at least two more scheduled next month. The public welfare has not improved.

Dragon on Centre Street: N.Y. v. Donald J. Trump

I discuss the book and so forth here. 

SCOTUS Watch: Order List

Monday's Order List (no more oral arguments until December) had a few interesting tidbits.

In the most common types of habeas corpus proceedings in the United States federal courts, a certificate of appealability is a legal document that must be issued before a petitioner may appeal from a denial of the writ. The certificate may only be issued when the petitioner has made a "substantial showing of the denial of a constitutional right".

There were the usual housekeeping orders, which made some go "hmm." For instance, only those with knowledge of some inside baseball know what a "certificate of appealability" entails. Where is that Orders FAQ page?

The justices granted one case involving asylum seekers. The SCOTUSblog summary references "aliens," though the lower court opinion uses the more and more standard "noncitizens." 

I would have granted certiorari to terminate the longstanding and unlawful prison-building order at the center of this case. In 2019, the District Court ordered New Orleans to construct a new facility for inmates with mental health needs. 

Alito (with Thomas) had a short dissent from denial regarding a case; the federal government had to be pushed to provide a response to the challenge. Gorsuch would have granted, though he did not join the dissent. It turns on procedural matters.

The facts harken back (going by the briefing) to at least 2013. The new facility was only two-thirds complete as of July 2025. The case is out of the Fifth Circuit, and the usual conservative suspects (including Judge Ho) dissented below.  

The Trump Administration, however, did not deem it certworthy. A tad bit telling as compared to Justice Alito arguing it is compelled by the Prison Litigation Reform Act of 1995 (limiting lawsuits) and so on.

==

More about that case involving a major human rights judgment against Ferdinand Marcos, where Sotomayor on Friday rejected a stay request. 

Steven Vladeck, in his Substack today, also suggested the request for a stay could have at least partially been raised to put the government on the record (see Sotomayor's final order).  

Upcoming

There is a non-argument session scheduled on Friday. These are usually used to swear people to the Supreme Court Bar. Vladeck notes there is a small chance it will be used to dispose of an easy case.

An execution is also scheduled on Thursday. 

Some miscellaneous orders might drop. The next scheduled Order Day is next Monday. That closes the official events scheduled for November. 

I Wish You All the Best

I Wish You All The Best, directed by a trans person, has received good reviews. A Bronx connection: she went to Fordham University. This is her directorial debut. She was an actor in 13 Reasons Why, another case where I only read the book. 

I noticed Cole Sprouse had a supporting role as the protagonist's brother-in-law. I remember him as Ben, the son of Ross and Carol (a lesbian), on Friends. Now, he is in his 30s. Time flies. 

“Non-binary” is an umbrella term that includes those whose identity falls outside of or between male and female identities; as a person who can experience both male and female, at different times, or someone who does not experience or want to have a gender identity at all.

The film concerns another Ben, who is kicked out after they come out as nonbinary to their parents. They moved in with their sister, who had left the family years earlier. Ben has a path of self-discovery, including a cute romance. The book is overall well-written. 

Lena Dunham has a role in the film as an understanding art teacher. The character is Asian-American in the book. The film also, for some reason, also has the sister having a newborn. I don't see a Muslim nonbinary character listed, who plays an important role in the book as Ben's mentor.

Mild spoilers. In the book, things overall work out well for Ben. Their sister provides a safe haven. She and her husband have the resources to help them. It's convenient, for instance, that the brother-in-law is a teacher and helps Ben transfer to a new school. 

They and their parents do not reconcile. They overall do not come out well at all, hints of backward religious beliefs. The mother comes off better. She feels sorry about the pain she is causing her children. But, ultimately, she is loyal to the father. 

(I began using male pronouns for Ben when writing this piece. Even the hosts of Gay USA sometimes trip up with using preferred pronouns. It can be tricky.)

The book shows the value of therapy, the usage of anti-anxiety medication, and dealing with social anxiety. It also shows the essential nature of finding good support. Ben finds a support network that they did not have before, including in school. 

Before, they didn't hang out with people. Finding someone who here helped Ben find two more close friends was oh so important. This is a general principle and not limited to people on the LGBTQ+ spectrum. 

Attacking trans people is deemed acceptable by many governments, up to and including the Trump Administration. Transphobia is both understandable (as far as bigotry can be) and ridiculous.

Transphobia arises from different things. The Trump Administration being so anti-trans might confuse someone. It seems logical (if wrong) for them to target Democrats in illegitimate ways or monetize the government or demand utter loyalty to Dear Leader.  

Why the anti-trans stuff? It does have a right-wing religious angle. It is fitting that the Religion Clause Blog often has news on trans-related lawsuits. Sex and gender flexibility clash with right-wing religious beliefs. Not "Christian" beliefs. To be clear. 

Such beliefs do not only have a religious angle. People can be religious and support nonbinary and trans people. Religious positions often have more to them.

Gender fluidity endangers traditional masculine-dominant beliefs and practices. Fascism and authoritarian governments regularly promote such beliefs. It is fitting that one book about them is entitled Strongmen. Anti-trans policies fit in here.

A book (written by a non-binary person) and a film (directed by a trans person) respecting the self-actualization of a binary person are quite important. We need to be good people and provide support for those in need. We need to not focus on false issues.

A final word about young adult non-fiction. It is often not only for young adults. After all, people enjoy television shows and films about teenagers without being teenagers themselves. YA fiction can be similar.

More Executions (and other Court News)

Bryan Jennings

He was convicted to die for the rape and murder of a six-year-old girl in 1979. Breyer's dissent explains why it is wrong to execute him over forty-five years later. Others are glad "justice was finally done."

The Supreme Court on Wednesday (the day before the Florida execution), without comment, disposed of a final appeal. They argue due process concerns, particularly involving his right to counsel. 

Jennings was a veteran. A study determined they were overrepresented on death row. 

Tremane Wood [Commuted]

Tremane and his brother were involved in the robbery/murder of a nineteen-year-old in 2004. 

His brother admitted to the actual murder. Tremane was still guilty of felony murder. That was enough for a death sentence. The Oklahoma Pardon and Commutation Board voted 3-2 to recommend clemency. The choice is legally left to the governor.

The brother was sentenced to life imprisonment. Tremane's defense had issues, including his attorney drinking heavily (and maybe using cocaine) during the trial. Sounds like a possible Sixth Amendment issue.

Tremane's current lawyers dropped multiple final appeals, including raising due process and discrimination claims. Gorsuch was recused, the case coming out of Oklahoma, his former circuit. 

The second and third cases took twenty years. That is better than forty-five. It's still too long. This case is also the most troubling of the three. 

Only Jackson, without comment, dissented in a final appeal regarding the illegitimate withholding of evidence. It's somewhat moot -- though she still should have explained why -- since the governor (for only the second time) agreed with the board. 

He won't be executed. 

Stephen Bryant

The third execution (11/14 this time) scheduled this week took place in South Carolina. 

Bryant is being put to death for killing a man in his home. Investigators said he burned Willard "TJ" Tietjen's eyes with cigarettes after shooting him and painting "catch me if u can" on the wall with the victim's blood.

Prosecutors said he also shot and killed two other men he was giving rides to as they were relieving themselves on the side of the road during a few weeks that terrorized Sumter County in October 2004.

Claims of mitigation (brain damage) were rejected. SCOTUS rejected a petition (without comment) regarding the matter last month. 

He chose to be executed by a firing squad, which reportedly did not go off without a hitch each time it was used by South Carolina this year. 

By one early report, it went okay this time. 

Other Court News 

January Calendar 

The new year will bring some big oral arguments. 

Trump Deportation Horrors 

Sotomayor and Jackson, without comment, would have granted a stay regarding sending a seven-year-old girl and her mother back to Venezuela. The girl has lived in Texas for the last three years. 

One thing that showed up in a book of opinions by Judge Learned Hand is his strong concern about uprooting non-citizens from the U.S. who have spent a long time here. He saw it as a sort of punishment, quite appalling, and worked hard to find a reason to avoid it if reasonably possible. 

The lower court split 2-1 here. 

Jackson and SNAP 

The end of the shutdown ended a shadow docket dispute involving withholding SNAP funds. 

Still, starting Friday Night, Justice Jackson did the best should could to use her power as circuit justice to speed things along. She held strong to the end, opposing an extension of her "administrative stay," even though by then it was apparent the budget would be approved shortly. Good for you. 

Another Order 

Sotomayor provided an administrative stay to hold things up in a case to consider the matter. She provided a final ruling on Friday:

Order entered by Justice Sotomayor: Upon further consideration of the application of counsel for the applicant and response filed thereto, it is ordered that stay heretofore issued by Justice Sotomayor on November 5, 2025, is hereby vacated. Give [typo in the original] the Government's representation that it will not transfer the funds outside of the United States before the disposition of any petition for a writ of certiorari, the application for stay is denied.

SCOTUSblog summarized:

Issue: Whether the Supreme Court should pause enforcement of a judgment granting control of $40 million in funds from the estate of Ferdinand Marcos held in an account in New York to the Republic of the Philippines while Filipino human rights victims who won a $2 billion judgment against the estate appeal the judgment.

Note how Sotomayor briefly examined her ruling. That can be done for many a shadow docket ruling, though sometimes it might warrant a bit more.

For instance, there were two orders handed down in death penalty cases, one with a dissent, and neither provided any explanation. Not ideal. 

[The typo ("Give" for "Given") is on the docket page but not the entry on the orders page. SMH.]

Happy Veterans Day

Some thoughts.  Also: Mary Magdalene. 

SCOTUS Order List

There are three basic things about today's Order List.

Kim Davis: Denied

Kim Davis's case was rejected without comment, even though some attention was given to it as if there was a real chance it would be used to overturn same sex marriage. Lots of people, including Mark Joseph Stern (gay, married, strongly anti-SCOTUS), were like "duh." See also, Chris Geidner (gay). 

As Steven Vladeck previously noted (linked here):

Third, there was a surge in media discussion about the pending cert. petition by Kim Davis, and what it means for the future of the Supreme Court’s 2015 ruling recognizing constitutional protection for same-sex marriage in Obergefell v. Hodges. (The surge seems to have been caused by the fact that the Court ordered the respondents to file a response to Davis’s cert. petition after they had waived their right to file such a brief. But such a move requires a request from only a single justice, and is in no way predictive of a grant of certiorari.)

This was one of those cases where a juicy-sounding case was on the docket, and too much attention was given. For instance, the Supreme Court doesn't grant a case, and a report suggests they decided the merits of the issue.

I am not going to disdain the average person being concerned here. The stakes are high, and people have a thin understanding of things. People aren't experts here. It's a learning opportunity. Anyway, hopefully, we are done with Kim Davis, who has been around for years. I have my doubts. 

Election Case Taken 

The Supreme Court granted review in a case for which the Fifth Circuit opinion was deemed "bonkers." 

The general idea appears to be that this was a "too much for the conservatives, at least two to three of them" Fifth Circuit ruling.  

Alito, Gorsuch, and Jackson did not take part in a case each. Jackson alone explained why. She and Kagan have consistently done that. Sotomayor, less so. Conservatives, never. Yes, this still bothers me. 

Gorsuch/Native Americans

Kagama helped usher into our case law the theory that the federal government enjoys “plenary power” over the internal affairs of Native American Tribes. It is a theory that should make this Court blush. Not only does that notion lack any foundation in the Constitution; its roots lie instead only in archaic prejudices. This Court is responsible for Kagama, and this Court holds the power to correct it. We should not shirk from the task. 

Gorsuch used a non-grant to dissent and provide some broad woke comments about our historical mistreatment of Native Americans and the Supreme Court allowing Congress to have plenary power over their affairs. Thomas joined him.

Thomas has gone his own way regarding Native American issues, including the proper rules for criminal justice. He has not been as woke on the merits as Gorsuch, which threw a few people.

Gorsuch has a point, though it's unlikely the Supreme Court is going to shift gears after over a hundred years. They won't frame things quite as crudely as some opinions back then. But changing over a hundred years of congressional discretion here?

I think not. Gorsuch's Native American stuff sometimes appears a tad too precious to me. Still, it is worthwhile to press the envelope given how much baggage there has been here. 

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Justice Jackson also dropped another order regarding the very accelerated SNAP litigation. To hint at the speed here, an appellate opinion was dropped late yesterday (Sunday). Legislatively, also in flux.

A Few More NYC Election Tidbits (SCOTUS Watch)

This week's SCOTUS summary is found here.

We had a significant increase in turnout, with as many voters as there were since 1969. The increase is relative, with only around 40% taking part. The Bronx had a paltry 28%. My city council district changed hands. What small fraction decided the result? 

Voting is a civic obligation. Many people think it is pointless to vote, including if they don't like the candidates. Republicans often felt they were wasting their vote, helping someone they strongly opposed in the process.  Others also did not like Mamdani. 

It is still important for people to vote. There were also other races and six ballot measures. The two links provide some voting analysis. For instance, the black vote significantly shifted from Cuomo in the primary to Mamdani in the general. Recall Mayor Eric Adams (black) was not in the primary. 

One analysis argues that Mamdani's leading reform proposals are cheap as a segment of the overall budget. The analysis provides some interesting information, including that free buses seem less extreme when 48% already do not pay for bus fares.

(That seems high, but there was a study comparing riders to fares obtained. I don't take buses too much, but have seen evidence of the overall practice.) 

Meanwhile, NY SNAP funding will continue even in the face of the government shutdown and Trump shenanigans. I expected state funding would help.

[ETA: After last night's SCOTUS order, the SNAP benefits are more up in the air. The linked article was updated since I first posted this.]

==

This entry has links to three online newspapers covering NYC and NY state news, as well as one to an NYT article. The (free) NY-specific online papers have provided helpful local coverage.  

Paywalls are annoying but fair since media providers need to be paid. Archived content can help avoid it. Also, you can fiddle around with the browser, including cookie settings, to avoid some others. 

Democrats Have A Good Election Day

Tonight, the results came in. American voters have spoken.

They firmly supported Democrats. The most notable for me personally is the election of Zohran Mamdani as mayor of New York. As of this writing, he has received a bit over 50% of the vote

Cuomo received over 40% while Sliwa received around 7%, including via his Protect Animals line. Mamdani said that Cuomo didn't send the usual complimentary victory message, though Sliwa did. 

Fox News (local NYC channel) referenced that Cuomo couldn't even pronounce Mamdani's name correctly in his concession speech. Sliwa also ran on a "Protect Animals" line. Someone else ran on the Conservative Party line. Perhaps, Mamdani can find an animal-related position, including involving feral cats, one of Sliwa's causes. 

Women played a major role here. The new governors of New Jersey and Virginia (both with convincing wins) will be women. Also, along with the new Muslim mayor of NY:

Ghazala Hashmi wins Virginia lieutenant governor’s race, becoming first Muslim woman elected statewide

Zohran Mamdani voted "Yes" on ballot measures 1-5 that were on the ballot in NYC, and those won. The sixth ballot measure to change off-year elections lost. It would not have been final, anyway, since the state legislature has to do it. I was a bit wary about the housing measures, but that's fine.

Anti-trans messaging failed this time around. It might best be noted that it didn't change other trends. The message appears to be anti-Trump, supporting Democrats, and progressive policies. 

The messaging there was mixed. Mamdani stood out. But it does provide a lesson about enthusiasm. House Minority Leader Jeffries, at the end, endorsed Mamdani (yippe) while Schumer couldn't even do that. He didn't say who he voted for. Sheesh.

Mamdani is not a "literal communist," which is now the framing. He is a self-labeled socialist, which is not horrible. I look forward to seeing how he does and hope net his administration is positive. Eric Adams is not a high bar, even if he has some positive policies.

I worked at the polls, checking in voters. We have ten days of early voting. We still had a respectable turnout in our neighborhood polling place. The whole process continues to impress me and provide some civic pride. Many fulfilled their civic obligations. 

A Texan parental rights amendment passed. The text seems rather benign, though various liberal leaning groups opposed it. For instance, literally, the amendment seems to help parents of trans people. OTOH, trans groups also opposed the amendment.

After 13 years, Mississippi Democrats have broken the Republican Party’s supermajority in the Mississippi Senate. Voters elected Democrats to two seats previously held by Republicans, reducing the number of Republican senators in the upper chamber from 36 to 34—one fewer than necessary to constitute a supermajority.

I will end with this symbolic bit of good news. After all, it is not like the legislature would logically often need to overrule a veto or something. 

Still, supermajorities do have more power, and that might help limit the damage in some cases. For instance, supermajorities make it easier to propose constitutional amendments. Most significantly, it is a message against extremism and the ability of others to have a voice. 

Liberals have victories in places you least expect. For instance, criminal justice reform has occurred throughout the nation. The wins were often in places, though the breadth was particularly significant; you expect Democrats to win (but see Pennsylvania and Trump's wins there), so that's nice too. 

Back to New York City, for the second time in so many election cycles, my city council district switched political parties. I was concerned, I even sent them an email, about the lack of campaign signs in my neighborhood. They were available on Election Day to hand out literature near the polls. The Democrat won, however, perhaps some Mamdani coattails. 

One major issue for the Republican incumbent was opposition to a health program for former prisoners. I was particularly angry about that. Overall, she seemed to do okay, but I'm fine with her losing. Anyway, the already small Republican NYC City Council delegation will now be smaller.  

A couple of final comments. The personal factor played a significant role, in various degrees, in the Democrats' wins. They had impressive life stories. They ran good campaigns. They connected to the voters in ways Republicans often did not.

Finally, can the new Arizona congresswoman be sworn in already, please? 

The Halloween Cycle of Holidays

Religion Clause Blog flagged an entry from a pagan-related website entitled "Christian Activists Disrupt Salem Witches Market Amid Renewed Calls to Oppose Halloween." 

Some people see Halloween (and various other things, including fantasy books) as a threat to Christianity and/or as overall a bad thing. This is somewhat ironic.

The very name comes from it being the eve of All Hallows' Day, better known as All Saints' Day (11/1). That holiday is a holy day of obligation in the Roman Catholic Church, which could include going to mass on a day other than Sunday. 

November 2nd is All Souls' Day, which includes remembering the souls in purgatory. Relatedly, around this time (including 10/31-11/2), are Days of the Dead, an often colorfully and a tad morbidly celebrated holiday to honor deceased loved ones.  

These holidays suggest various Halloween traditions, along with it being around harvest time. That can explain all the pumpkins. Trick or treat might be connected to the traditional requests for alms, which could have a certain threatening side.

Saints and souls can involve costumes, scary stories, and all the rest. Imagination can help us examine, sometimes on a subconscious level, our fears and other scary things. Children use play for such things too, including overall to prepare for adulthood.

We can understand how some people might think witches and goblins would glorify bad things. I think they tend to have a limited view. Partially, this is because, like a vaccine (yeah, I know), a little bit of "evil" can help keep the true evil away. 

Halloween and other fall-related events also honor our connection to the earth, seasons, and all that. Pagans are often particularly concerned about such things. They are "nature religions" and all that.  

And then Election Day comes around, and we start to think about other things, though hopefully, some of the candidates care about the earth and all that.  

Yes, Thanksgiving comes later, but from the stuff at the discount store, it seems Christmas is here.  

FU Blue Jays

YOU CHOKED! 2X. You F-ING CHOKED. You bunch of losers.