Bush v. Gore 25th Anniversary: The Beat Goes On

And Also: Jim Ward, whom I know best from the Stephanie Miller Show, has been ill for years. He died this week. He had a long career in voice work.

SCOTUS Update

A look at the media advisories page on the SCOTUS website will show two recent additions about seating for January arguments. The cases involve transgender athletes and executive removal of officers in independent agencies. 

We already saw this week what is in the cards regarding the executive removal power. The only question is how far gone the opinion will be. How far gone it is from text, history, tradition, and overall good policy. 

The Supreme Court and transgender issues are also a matter of harm reduction. The results won't be good. But some good will come if there is some room left for opinions like this. 

Bush v. Gore 

Bush v. Gore was decided twenty-five years ago. I wrote about it years back. It was an act of judicial hubris. Things have not gone much better since then. 

A 5-4 act of judicial hubris. Yes. 

Four justices dissented. None of them, even if they might have felt something was wrong and would have offered up a compromise solution if they had their druthers, concurred in judgment. 

Anyway, the opinion was a symbol of an overheated view of the Supreme Court. A divided Congress and other factors likely meant Bush would have won in the end. But it would have seemed to be less of a stacked deck. And maybe each institution (Congress, Supreme Court, state government) would have operated a bit more like it should have. 

December 2000 also appears to be such a simpler time. Many thought a just result would be a Gore presidency, including when analyzing the likely choice of Florida voters. Partisan election officials (and the candidate's brother as governor) didn't help. 

Among other things.

This led to my first passionate excursion into online analysis of current events. I strongly opposed the Bush Administation. It seems almost a golden age (not quite, I know) next to now. 

SCOTUSblog

Yes, the new ownership of SCOTUSblog brings with it some unfortunate stuff. The analysis has a more conservative spin, including talk of an "interim docket." You can check the link for more.

I would be careful not to just throw the website into the trash pile as a useless entity. The continuing coverage from Amy Howe and others, including Relist Watch, does not seem to be notably different.

Maybe people can point to concerns there, too. Nonetheless, along with useful docket pages and other material, the website is still a good resource. 

Upcoming 

No late Friday SCOTUS news (as of 8:30 PM!). There will be an Order List on Monday. Two executions are also scheduled. There might be some SCOTUS-related news there, mostly likely a pro forma denial. 

August Sixth

Three important things happened today over the years. Other things happened. These things stand out.

Hiroshima

A nuclear bomb was dropped on Japan in 1945. We have since then debated if it was just to do so.

One analysis today suggests the Soviet Union's entering the war factored in. Experts still debating suggest that just maybe people in the midst of things acted reasonably. 

Not necessarily correctly. But 20/20 hindsight is easier than a decision in the middle of a world war. 

Voting Rights Act 

The Voting Rights Act of 1965 was a fundamental defense of basic republican values. Voting rights are still threatened today. Rick Hasen's right-to-vote amendment idea (and his book discussing it) is worthwhile. 

I think the current Constitution protects a right to vote, but it has not been adequately applied in recent years. An amendment could also address such things as people in territories not being able to vote for president. 

A new Voting Rights Act is a fundamental goal when sanity returns to the national government.  

Bin Laden 

Today was also the date of the infamous "Bin Laden Determined To Strike in US" presidential daily brief. 

The Bush Administration assured us no one would have expected something like that. See also, the chance Iraq II would go badly. No one expected that!

I am not going to say that President Gore would have stopped the attacks. There was reason to think Clinton/Gore were paying more attention to the overall threat of Bin Laden. But it assumes too much to think Gore would have stopped 9/11. 

It is more likely that the Gore Administration would have focused on Afghanistan and not invaded Iraq. How Gore would have handled Afghanistan -- it lingered on until the Biden Administration -- is also unclear. Some are a bit too cocksure about things. 

Here is a discussion on 9/11/21. 

War, Sports, and SCOTUS

We are having various discussions of the twentieth anniversary of the Iraq War, including how it was a sham (with a few trying to convince us it was not).  I discussed it at the time over at the Slate fray.  Remember the "star" days?

My basic take was that war is a last resort (especially with the Bush Administration and some of the seedy characters supporting it on the Iraq side) and the case wasn't made.  At best, there was maybe a case. But, not enough to toss the keys (authorization of force) to Bush. It didn't seem too hard at the time. 

(The war decision.  The alternatives? Harder.  A basic lesson here is that killing people often doesn't solve matters. Horror movies with all those sequels sort of have a point on that end.) 

I also didn't buy the "can't criticize now, the war started" bit.

=== 

Sport is an alternative to war, including worldwide efforts like the Olympics. The World Baseball Classic is truly a "world series," and various baseball fans (and players) had fun with it.  Until now, Japan won twice, the Dominican Republic won once, and so did the United States. After an upset Mexico team (vs Puerto Rico) blew it late, it was U.S. v. Japan.  

The series ended on basically almost a scripted note -- Ohtani v. Mike Trout with the U.S. down by one, two outs, top of the ninth. The Mets connection was that Jeff "Squirrel" McNeil started the ninth with his second walk off the bench.  A double play then set up the finale.  Japan won.  

The spring break feel of it still was there for the U.S. gave some run-of-the-mill type (his overall record about even won/loss) the role as an opener. And, he gave up the two runs that made the final score (3-2).  Still, it was a fun series, even without the new timing and shift rules.  

MLB should have more games throughout Latin America at the very least.  They are starting with a series in England.  Fine.  Do more of that. Rotate in England, Spain, Italy, and so on.  I would have two foreign series to start: one in Europe, and one in Asia.  Promote the world nature of the game.

Our "World Series" amounts to one country and a team from Canada. This was the true World Series.

===

The dog toy parody game had some fun moments though many justices did not seem too interested. It was a fairly quick ninety minutes.  More details on the leak "investigation."  

And, the final March execution scheduled in Texas, for now, is off.  More SCOTUS action next week though. 

Congressional Tidbits

The House and Senate has "pro forma" sessions of a few minutes long these days. They provide a means to do something if something came up during a work recess. The Senate [basically to avoid interim appointments from my vantage point] just gavels in and out. The House tosses in a prayer and Pledge. Sometimes, the House has some communication of some sort. That seems not to come up generally for the Senate.

The House chaplain starts with something like "pray with me." This is the sort of extra bit of involvement that strict separation makes a bit more concerning. I notice guest chaplains (the latest a Catholic priest) don't do that as a rule though maybe someone did.

I have also seen some Republican events/debates when clicking through the channels. One thing I find unsurprising if simply absurd is the idea "Biden is a complete failure" or some such. I thought Bush43 pretty bad, but even then, he wasn't a complete failure. The hyperbole is such bullshit, especially given the many things actually accomplished.

RIP Colin Powell (Bronx Guy)

Colin Powell, in his 80s with a medical condition that made him particularly at risk, died of COVID related illness though he was vaccinated. Many kudos, including from liberals like Melissa Harris-Perry and Joy Reid along with some not suprising "f you" type responses for him helping to sell Iraq War II. Both are fair though he did repent and later support Democrats.

Big V and Elections -- Trump Related but Also Beyond

Most troubling of all, perhaps, was a sentiment the expert said a member of Kushner’s team expressed: that because the virus had hit blue states hardest, a national plan was unnecessary and would not make sense politically. “The political folks believed that because it was going to be relegated to Democratic states, that they could blame those governors, and that would be an effective political strategy,” said the expert.

We were a few years into the Bush Administration when I started this blog. A lot of content about the wrongs of his Administration (and Republicans) could be found in the archives. I also commented a lot over at Slate fray in particular, but that is no longer existing. Clearly, we have much anti-Trump content. But, perhaps not the same level of constant detail and analysis. No longer new. Trump is so blatantly wrong. More places to comment elsewhere.  Still, it is good to remember.

The excerpt above is referenced again in a post along with the death of a professor, who contracted the Big V earlier this year.  Note the time lag: months later, people still suffer, some will die.  A major problem here is that her university did not close shop until April.  New York received some criticism for waiting a week to ten days in March.  The problem is wide. But, yes, there is some special attention warranted for the head of the executive department.  Relatedly, national policy requires passage in the Republican controlled Senate.  They have their own issues, but also must factor in what the titular head of their party is willing to do.

(Stalin says at some point a list of dead is merely a statistic. The "merely" is his gloss and/or implication.  Still, 140K dead becomes more real with individual cases. One recent was Herman Cain.  It seems quite possible he contracted it at a Trump rally.  Or, if the timing is off, he very well might have spread it by being there.  The timing of his announcement that he had it actually might make the latter more likely the case. He's dead now. The state of others he might have infected is unclear, helped by imperfect track and trace policies.)

The President, not being known for thinking through anything, suggests this morning that the presidential election be delayed. Let's run with this hypothetical, shall we?

As noted, Congress has the power to set election dates, so if no one was picked by Inauguration Day, existing law would mean the House Speaker and then Senate Pro Tem  (as might be in place after Congress comes back in session in early January) since we have fixed terms.  In fact, really going with it, we might have a rump Senate with Democratic control.  As noted in comments, over twenty Republicans (including McConnell) are up for re-election in November.  This all is useful for academic interest.

The whole thing seems so stupid that one commentator argued the appropriate path is ridicule.  And, we had some.  Secretary of State Mike Pompeo might have passed the buck to the Justice Department, but even Republicans granted we will have elections on time. We did so during the Civil War with treasonous rebels in control of a chunk of territory.  It's true that the Copperheads were not in control of the presidency and Senate, but still.  One Trumpie in comments argued Trump didn't say he personally would delay the election, so this is just him "blue skying" in such a way that is triggering people who don't like him.

He added something about maybe Trump doing it to assure ballots would be counted by November 3.  Found this inane myself, but Mark Field (near end) actually gamed that scenario, arguing the net result could be to depress the vote and taint absentee ballots not actually counted on Election Day, something that is a policy in multiple places.  Note how the results were delayed in the primaries just for this reason.  Still, find that stupid. The thread itself tediously had a "stupid" tangent, including the idea that Britney Spears is pretty smart.  I am not making this up.

The tweet was not some sort of one-off.  Trump has for a long time been arguing that the election will be tainted, particularly because of the increase of absentee voting.  This was the particular nature of the tweet -- maybe we should delay the election, if that is necessary for accuracy. Just saying. That sort of thing.  The idea that only Congress gets to change the election as obvious should not lead us to think Trump knows that and won't try somehow to interfere with the date. It's Trump.

Vague open-ended comments of this nature deserve strong responses.  Plus, there is a general idea that for the "good of the country" or something, executives can do a range of things they don't seem to have power to do.  In fact, courts -- up to the Supreme Court -- has blocked attempts to loose the rules some to deal with the Big V.  OTOH, there repeatedly were major debates on the right path.  The obvious case there is Wisconsin.

Mark Field's comments -- including the important reference to the now Trump led post office -- point to the concerns we still should have about Trump here.  Directly changing the election date is not the only thing he can do.  As I myself said, the basic thing (and the Trumpie in his own fashion showed this in his own words) is that Trump is serving as a chaos agent to de-legitimizing elections.  He has direct powers to do this, or at least to try to do so (his latest is to not count undocumented people for purposes of apportionment), but also indirect means.  Lack of trust in the election system, especially if this election turns on a fairly close count in a few states, is dangerous.  Republicanism includes an overall ethos accepted by the public at large.  And, again, distrust can influence his own actions.

John Lewis (RIP) noted democracy is a state of mind.  It is not just voting, but an ethical state of mind, that has to be developed and reinforced. This also follows from individual liberty. So, liberty is not just majority will, but things that are protected to create republican citizenship.  Justice Douglas spoke of the importance of privacy here (see, e.g., Poe v. Ullman).  An op-ed by one of the people that makes NYT not just a bunch of idiots compared Lewis with Trump, citing an important philosopher:

In “The Ethics of Democracy,” an 1888 essay written while he was teaching at the University of Michigan, Dewey described his expansive vision of democracy. Against contemporary skeptics who saw democracy as little more than simple majority rule by ignorant, isolated individuals, he argued that we should understand democracy as “a form of moral and spiritual association” that takes “personality” — meaning individual potential — as its “first and final reality.” Democracy recognizes the “infinite and universal possibility” within each person and seeks to foster its expression, not for “mere self-assertion” or “unregulated” desire but for “an individualism of freedom, of responsibility, of initiative to and for the ethical ideal.”

Trump is a type of active virus against this sort of thing. He is being a "chaos agent" to chip away at the trust in our nation's institutions.  Trump could and probably should have been impeached for a range of things. But, the House chose to select something specific, an attempt (far from a one-off, and this was specifically noted) to interfere with our election. Relatedly, his interference with congressional efforts to investigate this.   So, though he has a lot to answer for, given his current role, there is something especially nefarious about all of this.

RIP Bush41

I added a couple books on the side panel on the Nelson Mandela trial and myths about the Civil Rights movement. It is helpful to remember the complexities of history, which is surely true with the death of the last credible/legitimately elected Republican president. The negatives are true but so are the more positive aspects of his character and public service.

Libby Again

And Also: The joint effort with the UK/France to bomb Syrian chemical weapons targets is probably illegal.  It very well, at least under current rules, may not be "war" as implicitly required by the Declare War Clause, but a use of force versus a sovereign nature can be illegal regardless. It is also of questionable value. The fact to other nations were involved suggests it is not merely some sort of "Wag the Dog" scenario at least. Tinker tinker.

For perjury and obstruction of justice, [Libby] doesn't deserve a day in prison ... the disgrace to his name (as if these people care) and a $250K (easily paid either by his deep pockets or his pals, including supporters like Fred Thompson) fine is enough. Oh, and probation. Jumping over a turnstile might get you more time. But, hey, that is a quality of life crime. Nothing like helping in the outing of a CIA agent to punish someone for calling your people for lying us into war.

That's me on this blog over ten years ago.  Yes, I disagree with Timothy "reasonable Democrat" Noah on the point.  Perjury and obstruction of justice in the course of an investigation regarding the outing of a CIA agent is worth some prison time. Reference is made to a "double standard" in reference to Bill Clinton. The context of the situation is not the same (I might add -- I'm older and more tired now -- "asshole") and Bush could have waited until he served some time.

Finally, the commutation itself is arguably obstruction of justice, the whole affair blocking finding the whole truth in the Plame Affair, one of the most infamous matters arising in the Bush presidency.  The old gang is kinda back together now with Trump pardoning Libby (who I refuse to give a stupid nickname) though as with Arpaio and somewhat less so the other person (both FOX News troll pardons) it is basically symbolic. The guy got his law license back and unlike various other felons can vote again.

As explained at the link, no, the pardon is likely messaging for others. Either way, yet again, the pardon power has been abused.

The Chickenshit Club: Why the Justice Department Fails to Prosecute Executives

Two chapters in particular were eye glazing regarding the complicated economic wrongdoing at issue, but as a whole, this was a pretty readable account that suggests the complications involved here. Online, I have seen people on the left angry at the lack of prosecutions (not quite absolutely so) and felt somewhat sympathetic about the pressures involved. But, the book helps point out to the problems, even if some on the right in the electorate are rather hypocritical with their concerns (TRUMP is who you pick? the book provides a positive look at various Republicans in the Justice Department, but big picture, Tea Party Republicans in Congress etc. don't seem to be Bernie Sanders fighters for justice here). No pictures!

Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law

Agree with the thesis of this book on the importance of civil institutions in the development of constitutional law. It covers a lot of ground and interestingly suggests over time the Bush Administration did greatly change its ways. Found the discussion a tad tiresome though perhaps since it covered old ground in a way didn't find too fresh and caught various errors (e.g., Clement didn't really defend the law in Heller) that annoyed me. Worthwhile overall.

Rumsfeld On "Late Show with Stephen Colbert"

[This is a form of a comment first provided here, see also, Shag's thoughts. As to the original subject matter covered there, the Ted Cruz as natural born citizen issue is again debate here, I again not finding Mark Field -- who on the whole is a great progressive type with a deep knowledge of history and law -- convincing. A tell is him being a guest host for a clear weak link on that blog.]

Stephen Colbert, I think, did a good job -- he has repeatedly have had serious guests on and used a combination of his niceness, sense of humor and serious questioning to make it worthwhile television. This includes scientists, politicians, someone from Black Lives Matters and others.  Don't know if this will be as popular as his competition, but hopefully enough will watch to allow him to continue.  Seems there should be niche for it.

In the end, the sit-down with Rumsfeld was yet another in-depth interview that he could never have pulled off as his old Colbert Report character. It took straightforward, genuine persistence, but the real Stephen Colbert got the job done.

Given the nature of his audience, who booed Ted Cruz when he was on, I wonder if they were put on notice beforehand to be nice. The fact Rumsfeld came on to promote an app -- if one that is being used to support military vets (no comment there), a cause Stephen Colbert has supported in the past -- just left me speechless on some level.  Anyway, some don't want Colbert to have guys like him or Trump on, to give them legitimacy, but asked serious questions and reached an audience that NPR or Charlie Rose etc. would not get.  A highlight is Rumsfeld's comment: “If it were a fact, it wouldn’t be called intelligence,” and Colbert clearly making an effort to be fair probably helped.

It seemed to cut into his next guest's time, some basketball star with his own brand of eyewear, but that is okay.  Also, I think Colbert's pre-interview segment was great last night too on Cruz etc. And, the inability of Carlson Palmer to do what QBs have to do -- throw balls to the right team. Well, I needed a laugh at least and he helped get it, mixed with some serious stuff by a nice, funny talented host. Good luck, SC.

15 Years Ago ....

The Court should not have reviewed either Bush v. Palm Beach County Canvassing Bd., or this case, and should not have stopped Florida’s attempt to recount all undervote ballots, see ante at ___, by issuing a stay of the Florida Supreme Court’s orders during the period of this review, see Bush v. Gore.  If this Court had allowed the State to follow the course indicated by the opinions of its own Supreme Court, it is entirely possible that there would ultimately have been no issue requiring our review, and political tension could have worked itself out in the Congress following the procedure provided in 3 U.S.C. § 15. The case being before us, however, its resolution by the majority is another erroneous decision. 

-- Justice Souter, dissenting (sic), Bush v. Gore (12/12/00)

The infamous stay of the recount (though to be clear, many votes were never counted once) occurred on a Saturday, the final ruling that year on Tuesday.  As noted here, a big problem was the unnecessary activism of the Supreme Court.  Justice Stevens hit to the core of things:

What must underlie petitioners’ entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed.

This was encouraged by some justices (including O'Connor, who earlier deemed it just "terrible" that Bush didn't win free and clear on Election Day though later she had some buyers' remorse) thinking they were ignoring them after the first opinion though the state judges were kind of busy and the first stage of the post-election day proceedings made the matter a bit moot.  Plus, the concerns of the first ruling were kinda bogus, even if the liberals went along with it in hope that the whole thing would go away.  Hey, this isn't like a state execution or something. That is about federalism.

It is also about a 5-4 opinion.  Justice Stevens' dissent was joined by two justices (Ginsburg and Breyer).  Justice Souter's dissent, in which he "I am in substantial agreement with the dissenting opinions of Justice Stevens, Justice Ginsburg and Justice Breyer" was joined to the most part by the other three, two not joining one section.  But. people still claim it is really a 7-2 opinion since two was willing to take on the equal protection point (if actual relief was taken seriously) though firmly believing "The Court should not have reviewed" the case in the first place. The state election process should have been allowed to take its course and ultimately Congress would have a special responsibility here 

It is a shame, if true, that Ginsburg let Scalia convince her to remove a footnote flagging real equal protection concerns by black voters. What the hell, RBG?  This is like when the contraceptive mandate case was up and the voice of the women employees were not directly heard.  Where were the real victims?  Be sure of it -- George W. Bush wasn't the truly aggrieved party here.  His brother was the governor of Florida (those darn judges was a big part his responsibility) and co-chair of his state efforts was Secretary of State, running the elections. A certain system of voting was set up beforehand. Crybabies didn't want to follow the rules.  And, repeatedly the rules were stacked up against the other side from the felon vote purge to giving Republican voters special help in filling out registrations to how the butterfly ballot was formulated to how military votes were counted etc.

There is probably a clear and convincing case, taking everything into account, that Gore recieved more votes in Florida. The Nader issue (in Florida and New Hampshire (the latter largely forgotten) adds to the sense of injustice of it all.  But, what actually counted made things closer. There were various ways the recount could have went -- another bit of confusion -- and only an actual recount would have determined what would have taken place.  Some newspaper recount won't tell us any more than looking at a replay will determine how the people that count -- officials -- would have truly decided.  If it ultimately went to the Congress, split in control at the time, Bush might have won since a split decision would have not been enough to deal with a disputed state count.  But, it would have been the right way of doing things, the responsibility in the right hands.  Sorry Juge Posner etc. if that seemed too messy. 

It was a depressing spectacle for those of us who lived through it from the Election Night ending with a "to be continued" to not a single damn senator joining with the challengers of the final count in the House, the senators following Gore's lead.  But, it wasn't really his call -- the rights of the voters were at stake, and they deserved at least a token contest of the votes to have the issues brought to light.  This needed a formal protest from both houses, no senator willing to provide one.  Sen. Boxer went along in 2004 when it was a much less blatant case.  So nice of her.

Some consider Bush v. Gore when things went to pot -- we could not trust the majority justices after that point and it was a sign that they were willing to do anything politically appealling to the Right. A tad exaggerated, especially since two of the majority repeatedly did things liberal critics support such as gay rights or (O'Connor) support of campaign finance laws.  It cheapens Bush v. Gore to make it into just par for the course. But as Stevens warned, this heartache was a self-inflicted wound. It still lingers.

Dubya MIA

Nobody has pulled a more thorough disappearing act than George W. Bush. Unfortunately for the Republicans, Democrats and independents do have functioning memory cells.

Sometime by the time of the you know who's administration, a certain line was crossed for me to make one national party simply hard to take seriously as a credible option. It is rather unpleasant. This is a glaring sign of things.

What Would Martin Say?

After a good autobiographical first chapter, the author (a lawyer/speechwriter of Martin Luther King Jr., writing in 2008) discusses such issues as affirmative action, antisemitism, black leadership, the war in Afghanistan/Iraq and illegal immigration. He does so all too often with a heavy hand and repeatedly using right wing talk show level discourse. His chapter on the war was pretty bad but some of his language when examining Mexican border issues etc. was downright offensive. Overall, it was a rather disappointing effort.

"The President’s Legal Authority to Order the Use of Military Force against ISIL"

I think a new AUMF should be passed, but find this argument fairly convincing. Even if it isn't, ISIL is not "any terrorist threat," underlining the "anything goes" argument is both overbroad and gives away the store too much along with the sneering cynicism.

Saying It Aloud Is Something

Even before I came into office, I was very clear that in the immediate aftermath of 9/11, we did some things that were wrong. We did a whole lot of things that were right, but we tortured some folks. We did some things that were contrary to our values. I understand why it happened. I think it's important when we look back to recall how afraid people were after the twin towers fell and the Pentagon had been hit and the plane in Pennsylvania had fallen and people did not know whether more attacks were imminent and there was enormous pressure on our law enforcement and our national security teams to try to deal with this. And, you know, it's important for us not to feel too sanctimonious in retrospect about the tough job that those folks had. A lot of those folks were working hard under enormous pressure and are real patriots, but having said all that, we did some things that were wrong. And that's what that report reflects.

It might not sound like much, and on some level it is not, but it matters.

Supreme Court Watch: Criminal Justice

First off, intriguing argument about addressing "small scale" violence better to deal with gun violence overall, including the mass shootings of the sort that get the most press.

As noted here, with multiple later posts (see also SCOTUSBlog) on the 5-4 ruling on proper standards for determining mental impairment in capital cases. In the view of one blogger:

But while the Court has in my view but too much emphasis on the consensus of state governments in its Eighth Amendment jurisprudence, it has never claimed that the current consensus or lack thereof is the only criterion relevant to Eighth Amendment cases. Executing the mentally impaired, for reasons eloquently explained by the majority, inherently conflicts with the individual dignity and fairness required by the Eighth and Fourteenth Amendments. By creating an unacceptably high risk of executing a mentally disabled individual, Florida's standards violate the Eighth Amendment, and this would be true whether one state used them or fifty did.

The "nose counting" here is done basically to address the "unusual" part of cruel and unusual, in part because of the argument that both criteria must be met. Does this mean that if the rack somehow became "usual" again, it would not violate the 8A, even if patently cruel? The term "unusual" has often been largely ignored as an independent criteria as noted in Trop v. Dulles in lieu of some general principle such as the "basic concept underlying the Eighth Amendment is nothing less than the dignity of man."

The word "unusual" should have some meaning, yes, but especially taking the Constitution as a whole, it ultimately has limited bite. [An interesting take is discussed here.] We saw this in the lifetime without possibility of parole for minors case, e.g., where the fact that it wasn't overly rare wasn't enough to save the procedure at issue. Common practice is perhaps a rebuttable presumption of some sort. At any rate, as noted above, basic "fairness" might require striking down a punishment. This due process laden sentiment does not rest on nose counting. That is but a supporting argument. And, the mixture of reasons for not executing the mentally impaired is a case in point: both dignity and procedural fairness are covered. Finally, the opinion should not be stereotyped -- e.g., it did not merely rest on medical judgment.

Meanwhile, a few other cases of a criminal nature (one was more of a First Amendment case involving protestors), including a per curiam striking down something on double jeopardy cases via a bright line rule. Basically, putting aside the latter, we dealt with bad fact situations that were losers for the defendants, even if there was some reason to be concerned. Ginsburg/Breyer didn't join all of Alito's opinion in a deadly force case, but Ginsburg's opinion in the 1A case was fact specific (see, e.g., the SCOTUSBlog summary*). No big surprises in this area today.

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* OTOH, see discussions cited here, especially one pretty upset with the ruling. I admit to only briefly looking over it and think it's unclear how a closer case would be decided.

Self-Inflicted Wound Day

13th anniversary!

"Sandra Day Late"

I'm reading Judge Bazelon's granddaughter's book on bullying and this column came to mind.  Not quite "over it," but sorta forgive her for her failings there.  She is only human. As to being on the bench, well, not a great fan of Alito, but twenty-five years were enough. Along with Souter, she provided a good precedent for resigning before you know she died.

GG is a tool, Iraq War Edition

Since the 10th anniversary of the Republican + 1/2 Senate Dems (Dems in House voted against it) Iraq War is in the news, and gave up on him after respecting his research etc. until his bully boy advocate tone (and 'yes sir' comments) got to me, this is appreciated.