SCOTUS Watch (RBG Is Okay!)

Football: Panthers had a shot to go ahead at the two minute warning but missed a chip shot and a penalty flag was picked up to add insult. Saints then marched on to victory. Another three "NY" early game day. Jets had a laugher vs. the Raiders (opening FG and nothing else), Bears offense good enough to beat Giants and Bills now 8-3 with their win.

Supreme Court took another case for argument on Friday:

The question arises in a lawsuit filed by Muslim men – who are either U.S. citizens or lawful permanent residents – who contend that they were placed on the “no fly” list after they refused, based at least in part on their religious beliefs, to provide information about other Muslims to the FBI in terrorism-related investigations. The men sued the FBI agents, claiming that the retaliation against them violated RFRA, which generally bars the government from placing a “substantial burden” on an individual’s exercise of his religion unless the government can show that the burden advances a compelling interest.

The district court dismissed the men’s claims, but the U.S. Court of Appeals for the 2nd Circuit reinstated them. It ruled that a provision in RFRA that enables litigants to “obtain appropriate relief against a government” allows lawsuits for money damages against federal employees who are sued in their individual, rather than official, capacity.

Okay, so it's the weekend, and we can wait for Monday orders before the holiday or something.  Nah.  We have a press release from the gods, so to speak, which these days is a bit worrisome (main subject matters tend to be health related with another subject being Trump nominees) about RBG's health. She "was admitted to Johns Hopkins Hospital in Baltimore, Maryland, last night after experiencing chills and fever earlier in the day," but apparently is okay now.  Compare this to more opaque trip for some medical matter Trump had in recent days.  The transparency is somewhat hard for the health but appreciated though the cynical might think she isn't telling us every single thing.

(This sort of thing makes people again think about if she should have retired, after Stevens retired at 90. On some level, such spilled milk is just that, but the overall question doesn't go away like many others and will likely return in some form again and again. I personally had mixed feelings about her decision, at the time influenced near the end with expecting Clinton to win. For now, we are left with hoping she stays healthy enough to last until Trump cannot replace her. The idea of fixed terms does seem appropriate though retirement decisions will still arise.)

Orders are usually boring but along with the usual stuff the pre-holiday one was one of those where various justices provided statements of interest and the first per curiam of the term was dropped. The justices sent back for further review (but other than RBG -- doing okay! -- the implication is that it deserves to go down) an Alaskan campaign finance regulation.  As losing goes, Rick Hasen said this is probably the softest blow one could ask for. The House subpoena case is still lingering without further action after the deadline for a response late last week passed.

Justice Alito was the sole justice who wanted to take a defamation suit and the fact it involved National Review vs. a climate scientist surely had nothing to do with it.  Sotomayor tossed in one of her concerned statements, here about possible bias of a judge in a capital murder trial.  Kavanaugh, who did not take part in the big Gundy delegation case (re-hearing denied; he did not take part in the decision), did praise Gorsuch's dissent (found wanting by those who know the history) and flagged he would likely be the fifth vote for some new test, at least if a majority of the relevant panel deems the policy question "major" enough, to tighten up the rules.  It is not usually a major area people think about, but an amendment addressing agencies would be to me more appropriate than the ERA (mostly symbolic) or something that overrules Citizens United (likely to open a can of worms or be phrased in a way of limited scope). 

The Supreme Court will come back in the first week of December for some more oral arguments, including the big Second Amendment case that if they handle it right (as compared to right wing) would be to declare the challenge moot.  There is an execution scheduled for next week. As seen by the summary at that link, the federal executions scheduled for next month have been held up on a claim the feds aren't follow statutory rules regarding execution protocols and separately (Mitchell) on a discrimination challenge.  Have we pardoned the turkey yet?

ETA: As with Roberts order delaying things, we get a late bit of news here and the Supreme Court holds up the House subpoena to get accounting records pending a cert. petition (must be filed by December 5th) being acted upon.  The lower court deemed the argument against it weak and turned down an attempt to have the decision argued en banc.

Judicial Review

ETA: It might only be a few people, but it seems that this post did get a few hits when (other than a porn related one and a couple others) this blog doesn't get any really. Hi!

It has been a repeated argument here that Griswold v. Connecticut did not really establish a constitutional right to privacy -- previous decisions did so even if that opinion firmly did so as part of the decision of the Court. See, e.g, Mapp v. Ohio, mentioning "the right of privacy."  This is informative as a matter of how law is "found" or at least announced and developed by the courts.  Things tend not be announced from the ether, so to speak, but in some fashion based on previous decisions.  In varying degrees, a ruling might significantly move the needle, including by firmly saying something.

It is, indeed, a general opinion, it is expressly admitted by all this bar, and some of the Judges have, individually, in the Circuits, decided, that the Supreme Court can declare an act of congress to be unconstitutional, and, therefore, invalid; but there is no adjudication of the Supreme Court itself upon the point. 

-- Justice Chase, Cooper v. Telfair

Something comparable was in place regarding judicial review and Marbury v. Madison (1803) though the comparable is not exact for various reasons. Early cases had no decision of the Court, each justice separately explaining their opinion, and the matter was never expressly pressed.  Nonetheless, it was repeatedly assumed, including by both sides (ideological or otherwise) in the case at issue.  Judicial review -- here we can summarize it as the power of the courts to overturn executive and legislative action, of an equal sovereign (here, the U.S. Congress) because it is deemed in violation of the relevant constitution -- was on some level not really controversial. Alexander Hamilton in the Federalist Papers (No. 78) provides the famous accounting, but Charles Beard (early 20th Century) later on made a good case it was overall not too controversial if not universally held.

Hylton v. U.S. (1796) is a telling case here. The matter at hand was the constitutionality of a federal carriage tax, deemed by James Madison as an illegitimate direct tax.  The headnotes and multiple justices so noted. Madison's side did not oppose submitting the matter to the courts from my understanding. The separate opinions also are early examples of interpretation such as meaning of words, purposes, assuming bad arguments should be rejected and so forth. The same applies when the Alien and Sedition Acts were passed -- it was unsuccessfully claimed that the legislation should be struck down as unconstitutional.

The justices assumed that judicial review existed but that a high test was in place before a congressional act a law (per Chase) is held to be "unconstitutional and void."  As Chase notes then: "The deliberate decision of the National Legislature, (who did not consider a tax on carriages a direct tax, but thought it was within the description of a duty) would determine me, if the case was doubtful, to receive the construction of the Legislature."  Justice Iredell in Calder v. Bull (1797): "If any act of Congress, or of the Legislature of a state, violates those constitutional provisions, it is unquestionably void; though, I admit, that as the authority to declare it void is of a delicate and awful nature, the Court will never resort to that authority, but in a clear and urgent case."

Cooper v. Telfair (1800) declined to declare void a 1782 Act of the Georgia legislature attainting British loyalists and confiscating their property, Chase specifically emphasizing it was during war time and before the Constitution.  It is unclear that would matter later on, especially since it seems to me to be an illegitimate bill of attainder that the courts were -- after the U.S. Constitution was in place ... being asked to uphold.  Justice Douglas discussed the case, one of those neat online finds.

Nonetheless, multiple justices assumed a right to judicial review, if strictly applied.  Justice Washington: "The presumption, indeed, must always be in favour of the validity of laws, if the contrary is not clearly demonstrated."  Justice Cushing: "Although I am of opinion, that this Court has the same power, that a Court of the state of Georgia would possess, to declare the law void, I do not think that the occasion would warrant an exercise of the power."  Justice Paterson: "to authorise this Court to pronounce any law void, it must be a clear and unequivocal breach of the constitution, not a doubtful and argumentative implication."

Mossman v. Higginson (1800) was handed down about the same time and is an interesting little curio. The recorder provides a brief summary "by the Court" as was at times done by then, showing a single opinion of the Court was not a complete invention by John Marshall.  We first get a summary of each side's argument, one saying "the judiciary act [the subject of Marbury v. Madison] was only intended to carry the constitution into effect, and cannot amplify, or alter, its provisions."  The summary provided by the Court noted that it "must receive a construction consistent with the Constitution," which is a bit more vague.  Does that mean that unless courts have no other ability to do so, such as if there is room to work, or that a clear case would warrant it being held void? There might be some room for argument.

A footnote by the recorder to Chase's remark noted the Marbury did adjudicate the question. But, the basic holding as to judicial review wasn't surprising. The debate was more on how it decided the matter, including regarding a matter that someone like Thomas Jefferson thought was clearly a matter of executive discretion (decisions involving handing out commissions).  Later debates also regarded how much restraint the judges showed and how binding a single ruling would be to future parties. It is sometimes assumed otherwise: that judicial review itself was a big deal though many of the usual accounts emphasize other things too.

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To add something on one of those last points, James Madison twenty-five years after opposing it as a member of Congress accepted the constitutionality of a national bank:

Waiving the question of the constitutional authority of the Legislature to establish an incorporated bank as being precluded in my judgment by repeated recognitions under varied circumstances of the validity of such an institution in acts of the legislative, executive, and judicial branches of the Government, accompanied by indications, in different modes, of a concurrence of the general will of the nation, the proposed bank does not appear to be calculated to answer the purposes of reviving the public credit, of providing a national medium of circulation, and of aiding the Treasury by facilitating the indispensable anticipations of the revenue and by affording to the public more durable loans.

In fact, a companion opinion to Marbury v. Madison  accepted circuit riding duties for Supreme Court justices as established by practice after less than fifteen years of history.  What this tells you about originalism is unclear, but it is notable.  Lincoln in his first inaugural also argued:

I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.

The matter at hand was Dred Scott v. Sandford, the infamous decision  that Lincoln himself argued was based by mistaken historical facts (see his Cooper Union speech) and that the Congress during the Civil War basically ignored when it blocked slavery in the federal territories.  While the issue of precedents, not just about abortion, is in the air, this again shows the question of judicial review has various nuances.  This too goes back far.

More TV

A bit more about Friends. Rachel's hair is real nice. Rachel also usually is the one who shows off her breasts, but there are a few moments where the others have their moment. Monica is particularly sexy in the New Years Eve episode where she and Ross dance. OTOH, the actress seemed to do some sort of plastic surgery or something and it's evident in the season finale. I don't like her new look. Overall, less "LOL" but still a lot of fun moments.

Joey's new roommate starts off as a levelheaded sort that is a good contrast, but then (mainly for plot reasons) she becomes a bit of a jerk. Kathy earlier also left on a sour note. Bruce Willis is a good sport, especially when Paul can't stop crying. The DVD has a nice extra with various "friends of friends" including Janice and it's amusing the actress sounds so normal. Chandler's old classmate has a nice one-off episode.

I like the first season (10 episodes) of the show The Fosters so much that I re-watched the episodes (even got a free DVD) about three times each. But, then it seemed to go downhill fast and I only really liked "special" episodes that are basically can't miss (basically death related). But, the series went on for another three seasons and now two of the daughters are on a spin-off! I checked out a few new shows of this t.v. season that seemed to have potential and none were really interesting. Lots on, but not really into anything.

"I finally did it. I’m making @Veloci_trap_tor my wife. She said yes!"

A woman I first read online per her horror blog [last entry in 2016], but later talked about other things such as her fight (in her 20s) with cancer, her own film-making, experience as a teacher and relationship with a trans woman announced on Twitter today she proposed. And, right after I saw the Chandler/Monica proposal on Friends!

There is a lot to complain about regarding the Internet and various platforms on it, but I have gotten to known people there over the years, putting aside all the stuff to read (informative and otherwise). The "known" part comes in various degrees and she I mainly just read. (I follow a few people on Twitter who provide little snapshots of their lives as parents or otherwise and it's charming. ) Either way, you do grow to care about these people and her doing well/getting married is nice. "BJ" stands for "Brittney Jade," but yeah, she knows.

Impeachment Hearings: "We are Better Than That!"

Adam Schiff has presided over the hearings related to the Ukraine Extortion Racket in a calm and professional way, but his anger does come out in his final statement. He ends by noting the deciding matter for him was that right after Mueller testified, we had another round of Trump electoral meddling. At some point, even though he was wary about impeachment before, some line had to be drawn. Exactly. Will we wait for a third time? I think impeachment should not just be related to this Ukraine matter, but Schiff's final remarks (I quote his last line) suggests at the very least the Mueller Report matters can be combined.

There was various powerful moments during the public hearings so far, especially with Fiona Hill, the former senior director for European and Russian affairs on the National Security Council, who was particularly strong. Hill was appointed by Bush43 and Trump, one of multiple witnesses not some Democratic leaning type, but military and foreign policy experts worthy of respect. Doesn't mean the true believers [or party hacks/cowards] will change their mind, but others just might care. I hope more such hearings on other matters will follow.

Friends: Season Six

I needed some comfort food, but my DVD set was not at the library as noted on my record so I went to the Lincoln Center library since multiple copies were supposed to be there. Last time I went to a library with one copy, it wasn't there. It was there and it's a nice library with a collection of various things such as movies on videotape. I vaguely remember years back (not in the same building) going there to borrow records, when I still had access to what old people call a "record player." The branch is also far off the street past a wishing type pond.

I noted before that the show went downhill around this season, partially after seeing some late season episodes with Bruce Willis (who was doing a movie with Matthew Perry) and the final appearance of Tom Selleck. But, noting another earlier season had weaker late episodes too, there is some good stuff here including the "what could have been" two-parter. A few stupid "it's necessary for the plot" points aside, it is still a good season. Unami!

Okay. So, the last few episodes are focused on Ross' student girlfriend and her dad (played by Bruce Willis; the guys love Die Hard, but don't reference this look-a-like) dating Rachel as well as the lead-up to the proposal. The first part is okay, the second set up in a cute way, but the whole Richard drama in the end didn't do it for me. And, Joey -- who earlier had a hard time spending an extra $400 for a new frig -- buying a $20K boat is just stupid. They use it once later and then in passing say he sold it. It's one of those signs the show is stretching.

Socrates and Chocolate (Book Quickies)

I saw Why Socrates Died in the book store and got around to reading it. Interesting though the extended portion about the war (relevant but not sure you needed that much detail) seemed a bit much. Have not read that much on Greek philosophy though know the basics about "the cave" etc. Thesis of book seems convincing. I also never read Charlie and the Chocolate Factory until today. I liked it; can see why the author (who I did not read as a child) is popular. But, if each grandparent is in their 90s ... Charlie is what 10 ...

Supreme Court Watch

(Things mostly going as expected football-wise this weekend with the Jets beating the Redskins comfortably thanks to first season struggles by the new QB [not  that he got too much help from what I can see] and poor Redskins defense. Redskins have one win, barely, vs. the Dolphins.  Giants with a bye, now has two wins vs. the Jets three, a gift win really and one vs. these same Redskins.)   

On Friday, audio of the second set of November cases were released and as other things were happening (Roger Stone convicted, another big impeachment hearing day, Trump pardons some war criminals), they also granted some more cases that might be of mild importance. Also, for some reason, the Trump Administration's sentiments a New York gun case isn't really moot appears to be relevant. Just in time for another school shooting.

[One person at a blog commenting on the pardons made an open-ended attack on the pardon power itself because of certain abusive applications. This is throwing the baby out with the bathwater and applies to prosecutions too. I do think state practice of putting strings on unlimited pardon power -- so, e.g., in theory a POTUS can commute everyone sentenced to die or given long prison terms for drug possession -- is on some level good policy.  Even there, I would think selective use of pardon power, such as to relieve people involved in a riot or insurrection of the threat of prosecution, which occurred since the days of Washington, would basically be tied to executive power itself.  This doesn't mean even there limits would be bad, but flexibility regarding ongoing affairs of that sort is even more appropriate.]

SCOTUS also showed some concern for the Rodney Reed case (asking for briefing or some such thing, suggesting at least one justice was concerned), according to one account I saw, but Texas courts eventually held up the execution. This after multiple appeals over the last twenty plus years with limited results.  There was significant attention given to the case recently and not just from the usual suspects like on Chris Hayes' show. Some more concern about the innocent claims than the usual case. So, of the numerous executions originally scheduled the last two months, four occurred, which is probably at least three more than should have. One was tainted by anti-gay animus, another had serious innocence claims and a third was the method of execution case that reached the Supreme Court. So, maybe if nitrogen gas was used. The fourth was probably too mentally unbalanced, but in the end he waived appeals.  Arbitrary and capricious.

The Federalist Society big meeting last week is very relevant here too for various reasons, not limited to its role in the appointment of federal judges. A special "fu" to those who refuse to admit such a role or realize they are enabling Trump, given the special importance judges have to his support. Furthermore, Brett Kavanaugh came out to give a big speech, a sort of victory lap.  And, there was Attorney General (allegedly) Barr who followed up his religious liberty speech (reported on this space) with a "you got to be kidding me ... you aren't, are you?") executive power speech, including how "the left"  (always a flag) is the true menace. 

Today was Order Day (they will have a conference this Friday and then take a break until December). As noted at the link, Sotomayor dissented in the others not granting relief sought involving one case involving applying a criminal forfeiture case.  Other than that, though as noted at the link some of the non-grants are as usual notable cases, it seems like a normal no drama order (SCOTUS has a habit of granting cases for oral argument separately on the Friday before).  There is one of those "huh" moments for me personally when it granted a request to release a joint appendix in the big abortion case under seal.  Why?

Finally, to toss it out there, the woman who should be judge if she wasn't filibustered (she would have been a key vote in a divided circuit, but her scholarship and support by certain conservatives also makes her stand out for me) adds to a discussion on a book on McCulloch v. Maryland.

More: After the House side did not oppose a short delay, Roberts held up a court of appeals judgment requiring release of presidential accounting records for a few days. One reason flagged by the court of appeals (rehearing denied 8-3, two of three Trump appointees) was enforcement of emolument clause requirements: "If the President may accept no domestic emoluments and must seek Congress’s permission before accepting any foreign emoluments, then surely a  statute facilitating the disclosure of such payments lies within constitutional limits."

The original COA dissent argued that the only way such records, which to underline comes from a private firm who are now alleged to be a sort of agent for executive privilege purposes, can be obtained is if the House had a formal impeachment process.  We surely have one now, but they were requested separately and for a more general legislative purpose.  All the same, the impeachment inquiry is clearly relevant here and emolument clause violations are one of many non-Ukraine matters to keep track of.

Planned Parenthood Wins Suit Against Activists Who Released Secret Manipulated Videos

(See also: A liberal source is somewhat concerned about the judgment, especially since the "manipulated" part might not be necessary.  Thus, e.g.,  merely breaking rules against taping etc. is involved though he notes that this might be a normative concern, not one matching current law. I comment there, but suffice to say I question this as a whole. The jury should weigh everything and First Amendment exception to the rules in place seem questionable.  At least, enough appears to have been done wrongly here for a fair judgment though we can debate particulars like the breadth of the damages. But, the concern is reasonable.)

The footage was then allegedly edited to make it appear as though the group was selling the tissue for a profit. Planned Parenthood says they do not sell tissue, but at the time they did engage in the legal practice of taking fees to cover procurement. In 2018, they stopped accepting fees to cover procurement costs. The organization claims discussions about fees were manipulated to make it seem as though they were "selling" the tissue.

With all the bad news out there, it is somewhat appreciated that sometimes we get good news such as a report of a $2M judgment for Planned Parenthood "after a jury found that an anti-abortion group had broken multiple laws by secretly recording and releasing manipulatively edited video footage of doctors and staff."  One doubts they will ever get the money, the judgment itself occurring years after the events occurred, but can still be a deterrent.

A jury decided the damages, but the linked article talks about how the right wing troll involved complained about how unfair the judge was. The claim that they were protected by press privilege (the overall issue taken seriously here as it on some level should be) was found to be besides the point since even if they were "press," they wouldn't have the right to break the law. I would think a reasonable argument there would be for the jury to factor that in when deciding damages. As is, they come off more as an advocacy group.  There is a continual debate if the "press" as such should get more protections, but a basic point there is you have an institution with editorial standards and so forth that warrant extra respect than a group like this.

A basis result of the whole affair was to embarrass Planned Parenthood and cause some to be upset about how freely fetal tissue research was discussed.  The basic idea that fetal tissue research is done could not really be challenged very much since it was well established that it was respectable and had multiple promising implications. But, it just seemed so icky to talk about some of the details. Not that the person involved was doing so in an op-ed or something.  She thought she was talking to an insider who was involved in handling research supply and such so did not feel a special need to cushion her conversation in euphemisms or such.  People were left to complaining that she was talking to him in some public place and she might have been overheard or something.  It was ridiculous and I discussed the matter in this thread, even if it seemed diplomatic for some at the time (see linked video) to apologize for the tone of certain comments.

(The "profit" concern also is dubious at best. If you support research, it is not simply going to be done by the goodness of the hearts of those involved. Some sort of fees and so forth will be charged.  Some of the same people who get the vapors here would find it appalling if we just make the whole thing publicly funded or something with zero profit motive at all.)  

Some things are just at least somewhat embarrassing and we do not wish to talk about the details openly.  Or, at least some of us, my efforts here at times to be open about such things especially since no one reads my blog. Seriously, it is appropriate for some people to basically be grown ups and face up to some things that might be uncomfortable in some fashion. This includes keeping in perspective video or photos that can be embarrassing, but still needs to be kept in the proper perspective.

Anyway, the judgment is appreciated since the laws in question are appropriate to protect privacy, especially for something sensitive like this. Plus, even if release might in some case have a justified muckraking function, it was done illegitimately here to mislead the public. This would be problematic even for a more reputable group and action. I am not sure how that amount was obtained (seems a bit high), but the result is just. 

Paypal Says "No" to Pornhub

Saw an article (see also the article linked) regarding Paypal blocking usage of their site to pay contributors to a porn website. As noted: "PayPal is one of many payment processors that have discriminated against sex workers for years. Its acceptable use policy states that "certain sexually oriented materials or services" are forbidden—phrasing that's intentionally vague enough to allow circumstances like this to happen whenever the company wants."

I assume the concern is some laws might be being broken somewhere, but in the end this is a bad policy that can hurt the performers. The wide use of certain things makes them not garden variety "private." This applies to popular easy payment options. Porntube provides free porn (I have commented on them in the past) and their pay content even brought in a former Disney star, if in that case as director. To toss that in there.

"Blessed Be the Fruit: Threats to Reproductive Rights in 2019"

And Also: Why They Marched: Untold Stories of the Women Who Fought for the Right to Vote is a collection of vignettes about women (and one man) who fought for suffrage (one chapter is about two sisters, one against).  It is a brisk read without that much depth, but informative all the same.  It covers a few black women, but not other women of color (Asian, Native American etc.), but does have a chapter on Mormon women.  I think it has young adult reading list potential.  Not really panel worthy.

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I have gone to a few interesting events at NYU in the last year (only one had lunch though), including this one on reproductive justice with familiar faces (Kate Shaw is Chris Hayes' wife as an aside), who I read (and listened to; two are part of the Strict Scrutiny Podcast; Murray pops up regularly as a commentator and was the choice side in the Landmark Cases Roe v. Wade episode on C-SPAN) in the past in various respects. I also do want to buy the book (part of a constitutional case study series of which I read a few), but it's a bit pricey for my tastes at the moment.

It was noted that reproductive "justice" is an important way to phrase things in part because it is not just a freedom "from" but "to," in the sense of removing barriers. This also connects to a wide view of rights that is not just a matter of the courts. Thus, the Supreme Court in the 1970s did not treat pregnancy discrimination as sex discrimination (it did accept constitutional claims to a limited degree such as forced pregnancy leave for teachers) but legislation did cover that. There is an effort to expand this national legislation and there is some crossing of lines here since it is also seen as a way around abortion.  This is a true "life" (or potential life) concern when often the state (e.g., strict abortion law states like Georgia and Alabama) turns out not to have them in practice by looking at infant mortality numbers etc.

Griswold (contraceptives) was noted to be one of many cases (including interracial marriage) that decriminalized certain conduct. It was also a marriage related matter, which has civil implications.  I was struck by a reference to "terrifying moral conformity" in this context.  Roe itself was decided on privacy and medical science grounds, but there were other cases that had a more open-ended view that saw it as an equal protection matter (race, class, sex), disparate health treatment and full with stories of the real life experiences of women.  Note that "Roe" and "Doe" were class actions under pseudonyms though the true life stories of the leading parties of both were striking.  RBG (somewhat unfairly) repeatedly disparaged Roe v. Wade, partially since she had her own case involving a servicewoman that actually had a pro-life sort of claim in that the military would have accepted if she had an abortion, but that went against her beliefs.

Abele v. Markle, referenced by Justice Stewart in a concurrence and as I recall also impressing Justice Powell, reflects the sort of possibly more open-ended approach as well.  It actually (not noted here) was a two step affair.  The court dealt with a 1860 statute and like Gaul split three ways: a broad feminist sounding opinion, a somewhat more narrow affair (the judge wrote the second opinion referenced by Stewart) and a dissent.  The broad opinion is the one referenced by the panel.  It brought in the recent sex equality ruling, the 19th Amendment, ERA and Title VII. This paragraph (footnotes removed) suggest the tenor:

The Connecticut anti-abortion laws take from women the power to determine whether or not to have a child once conception has occurred. In 1860, when these statutes were enacted in their present form, women had few rights. Since then, however, their status in our society has changed dramatically. From being wholly excluded from political matters, they have secured full access to the political arena. From the home, they have moved into industry; now some 30 million women comprise forty percent of the work force. And as women's roles have changed, so have societal attitudes. The recently passed equal rights statute and the pending equal rights amendment demonstrate that society now considers women the equal of men.

This was handed down April 1972 and the very next month the state passed a new law. The legislature seems to have been addressing the deciding judge's argument that the earlier law was basically a health law, one for which the times made outdated.  The other two judges were more open to resting on the idea that the life of the unborn was at issue, but reached separate conclusions.*  The new law forced the issue and in September the same panel again, this time with that judge speaking for two of them, again striking down the law. The opinion, just to cite it, early on cites who brought the suit, reflecting  this all wasn't just some physician matter:

Plaintiffs in this and the earlier litigation are several hundred women including doctors, nurses, social workers and others who wish to advise concerning abortions, and pregnant women who wish to have an abortion.

The opinion cites that the matter is covered by the right to privacy, explains how a "fetus" (using the usual misleading term) is not a constitutional person and noting that constitutional right at issue cannot be denied based on reasons that turn on a major individual dispute.  The dissent strongly again said that the legislature's view (backed by evidence of human development) should be respected. The majority does not have the same feminist language, more privacy based.  As a whole, it is arguably a better form of the Roe decision, especially since it clearly faces up to why the choice some deemed blatantly illegitimate should be left to the individual:

There are those who believe it is destructive of family life to permit the use of contraceptives. In each instance, the viewpoint behind the challenged governmental action was a serious, thoughtful judgment, deeply held by large numbers of people. But in each instance the Supreme Court ruled that such a viewpoint could not constitutionally be imposed by the power of the state upon individuals who did not share this view.

Young v. UPS (pregnancy discrimination) was also addressed, it being the case one panel member covers in the book.   It dealt with treating pregnant employees equally to others in respect to accommodations.  The cited proposed bill seeks to expand the protections to secure a strong affirmative right to accommodation.  It was noted that one issue here was that the pregnancy discrimination law was not seen to have a "disparate impact" application (talk of that being a "hunted animal") though the text arguably allows for it.  OTOH, twenty-seven state laws have wider laws.

[The ruling was somewhat limited but Roberts and Alito (in judgment) did go along. Kennedy did not. He repeatedly took a more restrictive view of national gender rights laws, including sexual harassment and pregnancy leave, in that latter case once dissenting from a Rehnquist opinion.]

State laws provide a possible window here for more protections generally.  One panel member somewhat tongue in cheek argued Justice Kennedy retiring was a good thing, since him being there forced advocates to use limited arguments.  Now, there was more of an ability to think big, in part in appealing to a new generation.  One issue to consider here being economic justice as whole.  Meanwhile, there is a pending Supreme Court case that threatens abortion rights, perhaps by reducing the ability of physicians and others to bring suits before they directly block rights.

An opening question wondered what effect the passage of the ERA might bring, the panel avoiding the "wormhole" of the various barriers of that actually happening even if the new firmly Democratic legislature in Virginia is the putative 38th vote (three votes coming long after the deadline).  Not much clarity was given in the answer.  There was a suggestion current sex equality law is somewhat weak and the ERA would help to make it more robust.  Maybe so.  But, take the Violence Against Women Case.  The issue there was lack of state action.  How would the ERA help there?  The Civil Rights Cases (amazingly in my opinion) were held to still be good law so the same result would have occurred if race was at issue.  One woman who was a teenager as the ERA battle went on told me that she thinks the ERA's time has passed.

One charm of modern day happenings is that I personally have a chance to interact with people here.  For instance, Gay USA covered the Rhines case referenced on this blog.  The female co-host in summarizing the case referenced an "accidental" shooting, meaning that it wasn't premeditated (it being in the course of a robbery), but confused in the moment. I flagged this in an email and she nicely responded to thank me. She then corrected it in the next episode, thanking viewers for engaging with them etc.  Appreciate that sort of thing -- shows like that are clearinghouses of sorts for lots of information.  Sometimes, they might get something wrong.  Providing a means to provide feedback can be helpful.  At any rate, I like providing feedback, especially on certain blogs, and figure it is not only a means to express my views but also to help others in some little way.

Anyway, as with another panel discussion, my question was also addressed. (Index cards were given out beforehand.)  I asked how Congress might be able to interfere with liberal state abortion laws such as the expansive one recently passed by New York.  This comes up in my readings online: there is basically an assumption that the Roberts Courts will open up not just restrictive abortion laws in places like Alabama, but that there will be a national anti-abortion law in place akin to The Handmaid's Tale or something.  I find this a tad exaggerated, but it came to mind.

The panel was not very gung ho about delving into such dark subjects though touched upon things that came to mind. For instance, perhaps a twenty week ban.  There also would be serious Commerce Clause questions though that was not addressed (Scalia/Thomas flagged this though Thomas regularly opined on things not directly addressed) in the "partial birth" abortion case decided about a decade back.  Questions of fetal personhood also might come up.  This latter issue might be pressed at some point given certain state laws that on some level seem symbolic, but might eventually (if they haven't already) clash with actual third party interests.  This is not a new issue either.

Good talk and all four women greatly impress me.

---

* Reading the first opinion more closely, it is clearer that the best approach would be to combine the two opinions.

The first opinion provides a helpful statement on the interests of women, but does not provide a complete accounting of the state's interest. It is quite dismissive: "these statutes restrict a woman's choice in instances in which the state interest is virtually nil."  The burdens on women were cited and will get no refutation here though in theory there are various ways for the state to address them.  There are (hard as it is for some to believe) a segment of antiabortion types who would aim for the sort of social welfare policies that might arise here.  But, it doesn't face up to the concern for fetal life, while citing the current concern for a population explosion as if mere numbers of people was the interest asserted.  That concern also might not be as compelling anyways. 

[The dissent has its own problems here though it gives it more in depth analysis than the dissents at the Supreme Court. This sort of thing doesn't quite work: "It should be noted that the majority decision leaves the State of Connecticut with no law or control in this area of human relationships. It invites unlimited foeticide (the murder of unborn human beings), as a way of life, in a state long known as the land of steady habits."  Abortion can still be regulated and the framing itself is arguable -- what is "murder" here?  It assumes the conclusion definitionally.] 

This is where the second opinion comes in -- basically, the interest is a personal dispute that divides the nation too much to pick and choose, at least early in pregnancy.  The debate then would be line drawing, which would be harder, but the law was quite broad.  The first opinion also notes a third state interest (Roe basically handwaves it, saying the state did not rely on it; the dissent here also doesn't rely on it), "inhibition of promiscuous sexual relationships by prohibiting escape from unintentional pregnancy," but notes changing moral standards no longer makes it a compelling interest.  This is a tad conclusionary.

Basically, opinions like Griswold recognized this as a private matter.  Again, this turns on a constitutional right to decide such questions though a "common law" constitutional law approach very well will reflect current moral standards to some degree as well. The conclusion as a whole was correct, but I think it warranted a bit more analysis.  After all, some very well still rely on such arguments. Plus, as done in contraceptives opinions, one can even grant the interest while holding that denial of abortion rights is not an appropriate approach. 

(This footnote was added in part because a full accounting of these issues are appropriate.)

She Said (#MeToo)

I added the book about the efforts of the authors to research a major article on Harvey Weinstein to the side panel; it is very good. It has "All the President's Men" film potential perhaps, including the stories of various players. The book ends with Brett Kavanaugh, particularly Dr. Ford, but there the authors have a more hands off style since it wasn't to the same degree their story. The book also leaves the suggestion only one person really has evidence against him though by the time of publication at least one other accuser had her allegation backed up by multiple sources. That should be fixed in later editions.

Execution Watch: Ray Cromartie

ETA: Some years back, I wrote a letter to Justice Breyer about an execution for which multiple liberals supported a stay but did not say why. Here, we didn't even have that.  I wrote a new letter to him complaining.  

I have written a few letters to justices over the years, Justice Blackmun actually writing back. It was about him not voting against the constitutionality of the death penalty, which at the very end he actually did. Justice Sotomayor recently did too, regarding not having Spanish language material on their website, particularly regarding recent cases involving Puerto Rico.  The letter thanked me, but noted she could not comment on existing matters of court policy.  Seems a bit off given I wasn't talking about a specific case or anything, but appreciate the reply.  

Ray Cromartie was scheduled to die at the end of October, but a procedural matter delayed things for a short period, resulting in new execution day on November 13th.  I discussed his case earlier, expecting he would be executed, then that dispute would result in a significant delay.  A notable thing was he requested DNA testing that the daughter of the victim supported though the state rejected it.  At the time, I was dubious that the evidence would really help though any doubt should lean his way.

Hannah Riley of the Southern Center for Human Rights flagged that he rejected a plea deal (his mom encouraged this) that would have brought with it a seven year sentence. The guy who was in the store with him is already out and one article says his whereabouts is unknown, which is notable since the other co-defendant (and Cromartie's half-brother) now says in an affidavit that the guy pulled the trigger.  The DNA testing allegedly would help show Cromartie wasn't the shooter, but the state denies this.

A mess -- it is hard to work around a guilty verdict, even when you are not relying on a family member blaming someone conveniently not around.  Some people on Twitter are basically assuming the guy is innocent or something, which is a stretch.  But, if you execute someone, you better be damn sure. There is room for a bit of doubt here though sure someone against the death penalty who will use most anything half-way reasonable against it might not be convincing.  Still, let's leave him in prison and sort it all out. He already got more than the other two received.

The Supreme Court waited until after 10PM to ... deny the final appeals (related to request for DNA testing and addressing the new evidence regarding that affidavit)  without any comment ... no, not even a concerned but not denial (sorta of her thing the last few times) from Sotomayor.  As criminal justice activist/former reporter Chris Geidner summarized on Twitter: "BIG PICTURE: There is an innocence claim here, there is a request for DNA testing (which the victim's family supports), and there is new evidence suggesting another person committed the crime. And yet, the Supreme Court will not do a thing to stop this irreversible punishment."  Which happened.

Little additional tidbit: "The state says it uses the sedative pentobarbital for injections, but Georgia law bars the release of any information about the drug’s source."

Meanwhile, Patrick Murphy (remember him?) was scheduled to be executed the same day, but there seems to be enough evidence that Texas is treating different religions differently regarding final access to religious advisors to hold things up again. The Fifth Circuit has upheld the delay while there was no push for the Supreme Court to overturn it as today's original scheduled execution date passes. So, he will not be executed for what amounts to a petty bit of religious favoritism while someone with an innocence claim is denied relief.  Somewhat typical death penalty arbitrariness really.  See you soon. 

Impeachment Day (Preview)

ETA: I listened to a lot of the beginning though couldn't really deal listening to the Republicans (led by the guy who sued a cow and the former wrestler fast talker who doesn't wear a suit jacket / appears to have looked the other way when warned of sexual abuse) since they seem more spam than anything else.  Some powerful stuff with two career public servants as the opening witnesses. You have the ambassador to the Ukraine there. Hard to hand-wave it as just Democratic b.s., but hey a Vietnam vet/lifelong Republican, former Bush43 appointed FBI head (Robert Mueller) was.

Today is the first day of public hearings after the impeachment resolution (labels are tricky; after all, some argue we have been in de facto impeachment mode for months now), which is a historical moment. It's sometimes hard to see history clearly as it happens, but it is.  I experienced the Clinton impeachment (toddler me did not register the Nixon impeachment), and thought that he did something wrong, if not something that warranted removal.  I thought it important though that he receive at least a majority vote against in the Senate.  He received a 50-50 vote.  Okay.  Trump is a whole new animal here.  He deserves removal.

As with other things, not getting all you want (or need) does not mean something is a failure. There are also levels of need. It is very important to get something here (impeachment is not removal after all) since Trump is guilty of range of crimes (not just Ukraine; please don't just impeach on that!) that go far above simple electoral disputes. Too much has been normalized over the years here. Some line -- think waterboarding -- has to be drawn in the sand here.  It's of fundamental importance.  It won't be easy and we will feel like hitting our head against the wall repeatedly.

The hearings will focus on the Ukraine matters (I suggested the "Ukraine Extortion Racket" label at one point), but we should not ignore the other crimes Trump has committed.  I speak here specifically that of the high crimes and misdemeanors variety (bribery in there as well). Other congressional hearings and efforts were and continue from what I understand to be in place regarding other matters. For instance, Robert Mueller testified.  Just yesterday, even more evidence came out related to those matters in the Roger Stone trial.  The Mueller Report itself ended in an open fashion -- matters were forwarded to others and prosecutions still open.  Roger Stone was one such matter.

The Ukraine matter has been shown to have some special effect on the public and relevant parties, the latter some rough unclear set of markers to get a sense of what "matters" out there.  That sort of thing can be a fool's errand, but realistically it means something.  And, there are people who judge such things, such "opinion leaders" or tipping points or whatever. Anyway, it has been noted that it is seen as a tipping point because it occurred while he was in office, we having a "smoking gun" and it seems so blatant and stupid.  Yes.  But, it is only part of the story.  Paul Manafort's connection to Ukraine alone shows how it fits in to other things.

And, things continue to come out.  Court opinions on a variety of matters, involving both local (New York) and national (emoluments, congressional investigations) based investigations on a variety of matters.  Stormy Daniels and campaign matters, taxes, financial investigations, emoluments, the stuff in the Mueller Report and obstructions of justice overall.  The Roger Stone trial, e.g., brought evidence that Trump lied in his written answers to Robert Mueller.  Shades of Clinton.  This would be evidence that he is obstructing justice. Denying resources including people subpoenaed to testify to Congress is of that caliber. It was part of the Nixon impeachment.  Again, overlap to the current matter.

Some strongly against Trump was and maybe some still are against impeachment for various reasons. But, impeachment to me is a fundamental thing.  We are a limited government, and when members of the executive department and judiciary cross the line, there is a constitutional means to address it.  Members of Congress also fall under this rubric but it is a lot easier to remove them, including by basic prosecution.  If we don't use impeachment, even if we use investigations, again, it normalizes it.  This is not just about election politics.

We cannot make it only about that.  We can not. 

SCOTUS Watch

After the holiday, the Supreme Court started a full week (there will be orders next Monday, a conference that Friday and then a lag until December) of activity with orders.  The orders are the usual bland stuff as a whole (it added a trademark case separately last Friday) but among the cases not taken was one that allowed litigation related to the Sandy Hook massacre to go on.  This was not really surprising, both because they have avoided major gun disputes generally and the fact this specific one is still only in the process of going on.  But, it got some attention.

Remington had countered that the federal Protection of Lawful Commerce in Arms Act, which generally gives gun manufacturers and sellers immunity from lawsuits “resulting from the criminal or unlawful misuse” of guns by others, shields it from liability. However, the law carves out an exception that allows lawsuits to go forward when the manufacturer or seller knowingly violated state or federal law governing the sale of guns, and that violation caused the harm at issue. Remington urged the Supreme Court to grant review of the Connecticut Supreme Court’s decision allowing the case to go forward, alleging that the state court had read the exception too broadly, but today the justices turned Remington down without comment.

(See link.)  I tossed in the qualifier there because there were some cases that involved guns, including a domestic violence related law (where Thomas actually spoke at oral argument for the first time in a long while) and a possession law involving undocumented immigrants that continues to pop up on orders (like this one) to send back cases to apply the ruling. The Supreme Court this term will hear a Second Amendment case involving a New York law that seems to be moot (they didn't accept an argument a change of the law made it so but will consider the matter), the first time it will give full review of such a 2A matter for about a decade.

The order list as noted has the standard stuff, including allowing the solicitor general time during certain oral arguments but not agreeing to such requests for other parties.  There is also a couple cases where the Supreme Court denied requests "for leave to proceed in forma pauperis," which would avoid the need to follow certain requirements including fees.  To give a sense of this, normally multiple copies of materials have to be submitted, but only one copy is required for prisoners.

A list of cert. denials are included with a few separated (some justice didn't take part or a request for filing as a pauper was denied), in neither cases the reasons (including reasons for not taking part) provided.  In rare cases, a justice might explain why they agree that a case should not be taken.  There is a single denial of habeas corpus, a special longshot means to obtain review at this level particularly.  Then, there is a list of mandamus denials; this is a request for the Supreme Court to order some other party to do something. A writ of prohibition (one instance) is an order to stop something. And, various requests for a lower court matter to be reconsidered was also denied.  Other odds and ends such as requests not to print an appendix, file under seal (secretly), amicus brief matters etc. were not included this time.  Again, a general glossary would be helpful. 

Anyway, there are also some important oral arguments this week involving DACA, damages for a border shooting, a potentially important (so said someone on the Strict Scrutiny podcast) racial discrimination matter and a more technical case on Wednesday.  SCOTUSBlog has the details. The first set of cases again bring up desire for video of the oral argument as well as same day audio.  I am not really that excited (though it's fine and little reason not to have it) about the latter, my main concern is that these things are available in general.  Again, argument transcripts are available same day, and lower/foreign courts have video.

A few bad teams shine

Let us honor vets by education, respect for their service and needs as well as being very careful about how we use the military from now on.

There is a major divisional match-up tonight [messy game; Seattle won in OT], but a theme yesterday was for bad teams to shine a little. Jets v. Giants? Jets win by having two good halves (of four) and a great take away for a score. Dolphins hang on vs. a back-up and a veteran kicker who is having issues (missed XP key at end). Falcons upset Saints. Panthers back-up in the snow came within inches from going around ninety yards for the tie (they would need a two) in the snow vs the Packers. Bengals still winless.

Friends Season Five

I am continuing to "binge watch" seasons of Friends via DVDs, which provide a chance to see a few more bits not on television, commentary tracks (none with actors) and other extras. Saw a lot of the episodes, but either didn't watch or don't recall many of them as well. It is continue to give me joy and a few moments are particularly amusing. Plus, I like these characters and care about them. And, the first half of the run, especially after we get into the heat of the relationship arcs, is the best. A key marker in the energy level of Monica.

The major plot development is Monica/Chandler's relationship, which has some touching moments and also amusing ones (including from Joey) while it is hidden. Ross' emotional state also is a plot line, showing the actor's range. The actress playing Emily was pregnant so her role was shortened, making her story rather truncated. Some good Rachel work stuff, an ongoing theme (along with Joey's acting, her work is shown the most). Phoebe has her brother's babies (and that couple disappear, he pops up once more) and her grandmother dies (more Ursula, which is amusing; also their dad) and has a relationship (which generally aren't as interesting as other characters' are). Overall, a good bunch of episodes

Few tidbits. Rachel's hair looks so soft. I like it here. We also see her breasts the most -- the other characters don't wear tops so open. I'm team Monica/Chandler and Monica being so all in is both amusing and touching. Chances when we see Joey's sensitive side (or being into a bag etc.) are nice too. Phoebe at times seems the most of a bit of an outsider. Her backstory suggests why. Four of them after all are also interconnected more. And, Joey has a big family though interestingly you rarely see or hear of them. OTOH, he did have a spin-off.

SCOTUS and Elections Watch

On the Supreme Court front, oral argument audio was released and the January calendar as well. How fast 2019 is going. No real "hot button" issue among the cases this week, though the nuances of an immigration law etc. as usual has notable effects. The old sovereign immunity battle apparently is not totally done either with a copyright case popping up. Will one or more liberals submit to precedent? A continuing story. [New case granted.]

The Democratic win of governor in Kentucky will affect Medicaid rules; the legislative win in Virginia (special nod to gerrymandering reform) will have various implications, including maybe a possible "38th" state for the ERA. The Dems in the House of Representatives are already examining the issue, including restarting the deadline that passed before the "final three" did their thing. See here for more details on the dispute, including just what is left for the ERA to do. Assumption is that text is not simply redundant.

If it looks like the ERA is not dead, will other states act? I rather resubmitting it. Extending a single vote in the House so it would pass was frowned upon when Republicans did it. Nearly forty years passed here. It very well might still pass if sent back. I still am somewhat uncomfortable about splitting equal protection into parts but maybe it will be helpful.

Execution Watch: Justen Hall [Dead]

The last execution involved someone who murdered someone decades ago during a robbery where the jury seems tainted with anti-gay bias when choosing to make him one of a handful of people executed in South Dakota.  Justen Hall is also a disreputable character:

As district captain of the Aryan Circle gang, Hall ran a meth house in El Paso, a spot where gang members lived and partied. On the night of Oct. 28, 2002, prospective gang member Ted Murgatroyd and a friend, Melanie Billhartz, got into an argument. Billhartz threatened to call the cops on the gang's meth cooking operation. Hall overheard the threat and disappeared with Billhartz in her truck. Hours later, he returned with her dead body. Within days, Hall was arrested and confessed. He was sentenced to death in 2005.

Hall has a waste of a life -- he is not even 40.  Someone mixed in with the Aryan Circle gang, even indirectly, sounds a bit dubious if not as much as Hall. And, he didn't just murder her to deal with a threat but did so gratuitously:

According to documents, a medical examiner’s investigation revealed the power cord was wrapped tightly around Billhartz’s neck three times.

The examiner’s report went on to say that the victim had fractured nasal bones, multiple fractures to her lower jaw bone, fractures in her right hand, a fractured rib, and fingers missing from her right hand.

The missing fingers appear to be a failed attempt to hide his guilt.  The fact, quoting from one of these articles, this guy is mentally messed up is also not surprising:

The judges ruled that his attempt to end his life – and his hallucinations, paranoia, depression, and bipolar disorder – didn't make him incompetent to waive his appeals. In fact, they said, his depression and desire to die were understandable for one in his position.

Among the litigation, the coverage noted a court determined that someone like him on death row trying to commit suicide was not proof of incompetency.  Wanting to end it all given the state of life in that situation was rather rational.  So, the court accepted his statement that any claim of innocence was a means to delay, not actual belief of innocence. Or, lessened guilt.  OTOH, there still is evidence he has serious mental issues.  This sort of thing might not be enough under current law to block an execution, but maybe it should.  This came up already this year.

Hall seems like one of many dangerous criminals who does not have the level of free will, so to speak, to warrant the ultimate punishment.  Executing hm in some fashion might seem fair to people in his position.  This doesn't excite me though.  I understand that someone in his position might want to end things and pointing out how the system degraded him only takes one so far.  Long term imprisonment is always going to be very hard and some rather die than deal with it.  This was the subject of a well know short story from years back.  But, those who scornfully call execution here a form of state assisted suicide are not really that wrong. And, this is not just misguided sympathy. The alternative is a long prison sentence.

The fact -- at least these days -- Hall welcomes death (as do others in prison, even those with less mental issues) does not to me provide the state a good reason to give it to him. On some level, that is a tad ironic, don't you think?  At any rate, he was executed, refusing any additional appeals, thus no final Supreme Court orders.  He apologized before dying and said he was ready. On that level, it was somewhat satisfactory.

===

I'm going to address something else that is something of an aside here, partially since learned part of the it after writing the above.

The victim was a victim of her involvement with the crowd in question, opening herself up to violence. This doesn't mean she "deserved" it or anything, but it does slightly mitigate the crime. She was not just some totally innocent person; it was somewhat akin to a gang member or hanger-on being killed for threatening to expose the gang's habits.  This to me could have led one or more jurors to decide execution was not appropriate.

On the "worse of the worst" factor, a rough constitutional rule, there is the complicating factor he also admitted to another murder. However, he was not actually convicted for that one -- he was actually on bond (!) pending trial for it when he committed the one he was convicted of doing.  If he was not convicted of this crime, it would be dubious to use it a reason to execute him.  OTOH, why the hell was he on bail?  Look what happened. Perhaps, the evidence was weak enough or the victim (saw a reference of the victim being transsexual) not honored enough  for a higher bail to have been set. Or, maybe that was common practice. 

(The bail was $75,000, but the general rule is you could get out by paying 10% and $7,500 is not that much in that respect even if he didn't have money from his illegal business or Aryan friends to help him out.  Drug illegality also factors here. Violence is a consequence and often can be have avoided if drugs are legal.  Meth isn't quite marijuana and he hung out with a group inclined to violence generally, but this too should be factored in.) 

Election Day

There is a certain charm of local elections, especially in off-years like 2019. Democrats won governor in Kentucky, control of the Virginia legislature but only fairly close in Mississippi. Local races in NYC, including ranked choice voting. It passed along with a lobbying regulation and other things many were confused over by large margins. To add a twist, I worked as a poll worker, which is civic if boring (5Am-10PM with two hour breaks).

Execution Watch: Charles Russell Rhines [Dead]

As I noted last time, the short term execution warrant approach (let's say one that expires at midnight) led to a case this year where the U.S. Supreme Court took too long to decide a last minute appeal, leading the state to run out of time. The person was later eventually executed (a new execution warrant provided) after the Supreme Court rejected the appeal.  My proposal would be to (except in extreme cases where something arises at the last minute) provide a buffer zone (perhaps twenty-four hours) for final appeals to avoid this happening.  Anyway, like the last entry, South Dakota provides an extended period (a week) to execute though the warden has to give forty-hour notice.  On Saturday, therefore, we knew Rhines was sentenced to die on Monday though the clock started the day before.

There is a last minute dispute on the proper lethal injection protocol, the claim being that state rules warrant him to get one of two ultra-short-acting barbiturates while the state wants to use another.  As noted in the past, there is overall some reason to be concerned about lethal injection protocols, including the efficiency of specific drugs and respect for some basic due process on procedures used.  There has been problems in both cases.  Rhines cites expert testimony and appeals to the text of the specific law in question.  So, not just some federal constitution claim.

One notable aspect here is that he is gay and claimed discriminatory bias tainted the proceedings.  One problem here is that the justices are strongly split on even using the possibility of racism to pierce the privacy of the jury room to question the result.  But, especially with only two people on death row in South Dakota suggesting the possibility of arbitrariness is if anything more present given small sample sizes, there does seem to be credible evidence here of problems.  He also made other procedural claims.  Supreme Court rejected all without comment.  Rhines brought back the claim of discrimination in his final appeal to the Supreme Court.

After 1913, someone was executed in South Dakota in 1947 (murder of a state agent), the next execution was in 2007.  Of the four people executed since then, two were executed for the same correctional officer's death. Talk about "special circumstances." The torture/murder leading to that 2007 execution also covers one of the two people on death row now, something being found wrong with the conviction of that second person.  This is an example of how even the same crimes can result in different results. 

Charles Russell Rhines, the other one on death row, was sentenced to die for the torture murder of a store clerk during a robbery.  He has been on death row for over twenty-five years.  Thus, we have the length on death row issue that comes up in various case.  Rhines is now in his early sixties and selectively executing one long term prison resident for a heinous murder to me constitutionally arbitrary and bad public policy. Yes, heinous:

Rhines, caught burglarizing a doughnut shop in Rapid City, South Dakota by an employee named Donnivan Schaeffer, stabbed the 22-year old in the abdomen and back. Then, as Schaeffer pleaded for his life, Rhines thrust the blade into the base of his skull.

The horrible method of murder during a robbery here is why his crime was found to fit within the aggravating factors that bring forth a finding of capital murder.  I'm still not sure if murder of a witness to a robbery is the sort of "worse of the worst" type of murder warranting the death penalty in a state where four people were executed since the Truman Administration.  Murder of a correction officer, if we allow the death penalty, very well might be.  Not factoring in other concerns.

Two would be being one death row for twenty-five years after being sentenced to die in significant part because you are gay.  But, though Sotomayor showed some concern about denying some assistance for the clemency hearing, no justice even commented on this matter. (Might have dissented privately.) The third final order involved the argument that the state was not following its rules for lethal injections.  That is a technical issue that I understand (especially with multiple comments on this issue in the past) the justices going over again on the record.  I appreciate Sotomayor following her now apparent habit to clarify her vote in death penalty cases even when she does not vote for a stay.  And, the long time on death row issue was not specifically flagged from what can see, even if Breyer wanted to reference it again.

Unlike Brennan/Marshall and eventually Blackmun, the more anti-death penalty justices (RBG joined Breyer in Glossip but tends to let others speak; Kagan is less often a vote against the death penalty but joined/spoke out in certain cases) do not comment each time there is an execution.  But, the anti-gay issue was worthy of comment, even if it was to say that they considered it again or there isn't enough material on the record to be able to base holding up the execution.  The silence is unfortunate.

SCOTUSBlog summarized things here.  He was executed.

Read more here: https://www.miamiherald.com/opinion/opn-columns-blogs/leonard-pitts-jr/article213672629.html#storylink=cpy

Supreme Court Watch

After a bit of break, the Supreme Court is back in action with orders and oral arguments. Also, over at Oyez.com (Slate recently had Kagan's partisan gerrymander dissent from the bench), the opinion announcements (including dissents from the bench; RBG has one in the cross display case) from last term are available. Again, why can't SCOTUS provide this on its own website?  The fact it is going to be released anyway just adds to the stupidity.

===

It turns out that "Beto" O'Rourke deciding to end his presidential campaign (who is the next "B" level candidate to do this? Booker? Klobuchar?)  is not the only federal government news from Friday.  The Supreme Court released a stand alone order to grant review to a case as it sometimes does, this time before an official day to release orders.  I'm somewhat curious about the dynamics of their decision-making here since it seems that they are sort of telling you something by singling things out.  Along with extending oral argument in the DACA cases, this was taken up:

A ruling for Liu and Wang could have a significant impact on the SEC’s enforcement efforts: In their petition for review, they told the justices that in 2018 the SEC collected $2.51 billion through disgorgement – over a billion dollars more than it collected in civil penalties. The case will likely be scheduled for argument early next year, with a decision to follow by summer.

In a term with various hot button cases, this might be lost, but sounds like it can be a serious matter especially given the interests of a President Warren.  The grant is interesting in part because the solicitor general opposed it, asking for the two courts below upholding the practice to stand. The plaintiffs argue that the enforcement is in effect a penal measure that was not authorized by Congress.  I do not know how strong their case is but it does sound like an important case to keep an eye on. 

===

Meanwhile, the impartiality of the justices was questioned by meeting with a conservative marriage group that were involved as amici in recent cases.  Kagan also spoke at a law school who signed an amicus brief in the DACA cases.  The link pushes for ethics rules that apply in both cases though Alito and Kavanaugh speaking at some law school probably would look somewhat less bad.  I don't know how far to take that rule though as a matter of good policy can see the concern.  The wider issue of having clear consistent ethical rules that apply to the Supreme Court is an important aspect of government ethics generally.  There is some lack of clarity there and repeated matters of public concern.

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Also, this article is getting some attention, including a concern for a celebrity case.  As is often the case, the novelty is a matter of degree, the "good old days" often a fiction.  For instance, over history, multiple justices had political ambitions and more than one resigned to actually try or obtain political office. Kavanaugh shows about the usage of politics in confirmation hearings, but do not know about someone that directly involved at least since Scalia and Cheney being friends.  Justices in the past also had public roles off the Court, including as professors, writers and so forth.  Plus, it is a reflection of the times, even if only state judges ethically are allowed to publicly be on social media like Twitter. 

The increase of a "celebrity justice" concept does suggest a need to address the matter but the ethical rules touched upon above to me is the way to go. Her per curiam opinion approach to me is dubious.  The use of gratuitous (allegedly) concurrences and the like is surely not new.  Was she upset when liberals did it in the past?  The tendency went back to the later days of the Marshall Court.  And, unless you simply stop the justices from having a public role, would this not just encourage them even more to have off court ideological moments in person and writing?  Plus, she realizes that hiding the ball will lack transparency.  Chief Justice Marshall only sounded above the fray.  Ignorance is not bliss.

I think RBG has been overexposed here and certain justices have shown up at some dubious ideologically inclined events but up to a point public appearances that will likely lead to some "fan bases" are acceptable.  Sotomayor and Breyer in their own ways done a lot to promote their views though Sotomayor has a more "celebrity" role as seen in her autobiographical writings.  Would she stop that sort of thing if her quota of writings on the bench are anonymous? I think even anonymous writings there have touches that suggest who wrote them, and if they all were, we would then have more people trying to parse.

To the extent the public are wary about the Supreme Court, this is a too cute way of addressing the problem.  A major issue lately is the nature of the Gorsuch and Kavanaugh nominations and the ideological push to fill lower courts.  Anonymous opinions will not change that sort of thing.  Judges are not fungible and cases that reach the Supreme Court repeatedly will be tough divisive subjects and hiding dissents there to me is dubious at best. The felt belief that judges are not all above the fray types is a result largely of reality.  I do think judges, though this is FAR from new, at times argue in a too pointed fashion, but Marshall did so too in a fashion.  Including in off Court writings.

Anonymous opinions -- I find doing away with any sort of dissenting opinion rather dubious -- might have limited value. But, to address the wider concerns, it seems not likely to do much.  It might even worsen the situation somewhat, since water wants an outlet.  If being a "celebrity" is the problem, there are various ways to do that and maybe address that instead.  Ethical rules would be a way to go there, for instance, and if we do not even label opinions, transparency there will be even worse. 

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The justices will hear some cases this week with somewhat interesting facts and you can read about them at SCOTUSBlog.  The  Supreme Court followed its sometime habit of dropping a grant on Friday while using the Order List today to do basic things.  Still has a few little things that make one go "huh."  What is this case under seal?  Why did Gorsuch and Roberts not take part in the consideration of one case each?  What are the rules for being allowed to file "out of time"?  I think the Supreme Court should have an "Order List Explainer" that will cover such basic things. Even normal legal coverage doesn't deal with this stuff.

Sexual Materials and Minors -- A Free Speech Special Category

Over the years, I have been somewhat more supportive of realizing that an absolutist take on freedoms is unrealistic. We have freedom of speech, not a regime where speech is not regulated.  The same applies to regulation of guns ("well-regulated") and we classify in various ways, so some sort of "arbitrary" or "invidious" discrimination rule must be in place.  Lines are not always clean, crisp or whatever and pointing this out along the margins (e.g., when debating affirmative action) is only a limited gotcha.  People speak in extremes, but it is at times often for effect. Deep down they know what I just said. 

We regulate expression lots of ways, including when children are involved.  Where are the lines here?  Touchy.  An early case in the modern era was Butler v. Michigan (1957), which said merely because something can corrupt minors does not mean it could be illegal. The freedom of speech of adults should not be set by the limits of what is appropriate for a child. A decade later, the Supreme Court did allow New York to have stricter rules when selling sexually explicit materials to minors.  And, the government can also limit what is broadcast on the radio or "free television" because minors can listen and watch.  Given 21st Century blocking technology and the realities of cable and satellite, this might be an outdated thing.  It was dubious in the 1970s that George Carlin's routine was blocked.  It has value; it isn't just porn or something.

As I have noted in the past, not a big fan of current obscenity laws for adults, which to me amount to content/viewpoint discrimination that seems to me to hit to the core of the First Amendment.  Certain types of sexual expression is deemed too tasteless and offensive. Offensive ideas, however, is not the sort of thing the First Amendment should allow to be banned.  You can regulate a lot of speech, including disclosure laws in businesses or campaign finance or time/place/manner regulations of various types. But, a basic thing here is not to censor viewpoint. A threat is not that -- you can express the basic idea in a way that is not an illegal assault.  Perjury etc. is also different.

But, we still have obscenity laws, though it's hard to know how often they really are enforced.  To toss it out there, in our country violence is treated differently, even though it is really a form of porn at times. Thus, the Supreme Court (in a ruling not blatantly obvious really) treated violent video games sold to children different from if you sold them a Playboy.  Such sexual puritanism leads to some problems such as teaching children sex education and other countries like France are more comfortable about children being familiar about sex and nudity.  So, certain French films, for instance, might have at least partial nudity of teenagers. We do have some photography with revealing poses and the like here, but even that has a few times gotten people in trouble.  We have teen sex flicks but the actors tend to be adults especially if there is anything acutely shown.

I am not aware of many Supreme Court cases that deal with use of children in sexually themed film.  Surely, there are various films such as those with Brooke Shields that have them.  The Supreme Court did protect virtual use of children in such materials.  So, cartoon teenagers having sex in non-obscene ways will be allowed.  Ditto simulations -- e.g., Romeo and Juliet having sex would involve a girl who is thirteen.  Showing an eighteen year old there having simulated sex would be protected unless it violated the in my view arbitrarily vague obscenity laws in place. 

But, use of actual minors can get you in trouble. Now, the basic concern here is child pornography, which involves children having sex in ways we basically would find abhorrent. It is child abuse and geared to a certain market of pedophiles.  We can target the specific acts but it is often hard to stop that, especially if it is produced overseas. So, a state or the federal government will target possession of the resulting materials.  Certain problems can arise regarding proof, excessive punishment and so forth. On a basic level, however, the material seems correctly illegal.  See, basically, New York v. Ferber, which held that this need not only involve the stricter rules in place for adult obscenity. 

That case involves "films are devoted almost exclusively to depicting young boys masturbating" and even the lawyer for Ferber appealed to overbreadth and alleged that if the prosecutors handled the case better that obscenity laws could have brought a conviction.  And, that is what concerns me there -- the law includes "simulated" sex.  Take Show Me Love, which is a foreign film about two teenage girls who fall in love. There is a quick scene where masturbation is simulated though it is hidden.  Simulated sex is a broad category.  So, basically Stevens concurred to say sure this stuff can be prosecuted, but was open to an as applied challenge for stuff that would not be appropriately targeted.  This might be an okay policy for child related material.

A later case involved photography by a reputable artist -- "10 color photographs of his partially nude and physically mature 14-year-old stepdaughter, L.S., who at the time was attending modeling school."  The law was later amended so only something with "lascivious intent" would be covered.  This allowed the core speech question to be avoided though three liberal justices made clear that to them mere nudity, even of minors, is protected speech.  Osborne v. Ohio cites a few photos of a male teen (maybe two) in sexual explicit positions, this time merely involving possession.  The partial dissent (Osborne won a procedural point) would have protected mere possession here like in Stanley v. Georgia.  The dissent, as in the past case, also was concerned about the law being overboard though again the law did not cover mere nudity.

Various cases over the years protected minors in matters involving sexual matters such as their access to contraceptives and abortion. Minors in various ways will be involved with sexual materials both as viewers and participants.  The proper line drawing here is tricky given it is valid to treat children differently given their lack of maturity and the possibility of abuse including lack of consent.  Nonetheless, an excessive policy here is not appropriate.  And, other concerns, including privacy of the home, should be weighed in the balance.  

Free speech is not absolute but exceptions should be treated carefully even when "taboos" are involved. 

Oh wait ... he's not the Jets QB any more ...

Jets QB came back from mono, beat Dallas and the Pats embarrassed him. Okay. So, you had the Jaguars and some scrubs. So far, so bad. Dolphins get their first win with an ex-Jets QB leading the way. Giants tomorrow night. A lot of youngsters and back-ups this week (one game had third stringers facing off with the game turning on a miss by an old kicker).

To toss if out there, we had Halloween, All Saints Day, All Souls Day, someone's birthday and will have Election Day on Tuesday. So, a mini-stream of event days. Back in the day, All Saints Day was a day of holy obligation, which for Catholics was church on a non-Sunday and maybe a day off. Guess it was a cool down day for hyped up Halloween kids too.

ETA: Nice Sunday Night game: Ravens dominated the Pats with multiple long drives and ending up winning by 17. Monday Night started well for Giants but ended First Half by giving up ten (three on a final turnover), kept it close for a while, but Dallas ending up winning big.

Sigh. So, we will hear about 2006 some more, right?

I gave blood again and continue to think for those able it is a great easy way to give back. I planned to give "double red," which involves processing red blood thru a machine but apparently (they didn't tell me why, which was wrong) there was some issue with the machine or something. Still, with one of those new bigger needles, it was quick and easy. My thinner veins or something at times give them trouble. While downtown, also took the fairly new 2nd Avenue Subway at 86th, though how far down you go, not sure you save much time.

I checked my phone and saw Carlos Beltran was chosen as the new Mets manager. I'm wary of his lack of experience though his NY experience and being the first Latinx (that's the term, right?) manager are pluses along with his leadership abilities. Key though to get him a good bench coach. Still, Bill Madden has a point. More wary than many fans; it comes off as another "flashy" move like last offseason. That was a mixed bag.