SCOTUS Watch / Abortion (History)

The Supreme Court is in a bit of a break, with today a scheduled day to release orders and next week ending with a conference. An execution is scheduled next week so we might have a last minute order or two. Last Friday, after a week for consideration, a stay in a case was lifted.

The notable thing in today's orders is the expected acceptance of a case to replace the "D.C. sniper" case, which was mooted given a change in state law.  The importance of such a case is suggested by the facts: "Today the justices announced that they will take up the question presented by Malvo’s case again, as they granted a petition filed by Brett Jones, who was 15 years old when he killed his grandfather during an argument about Jones’ girlfriend."  If such a person is the extreme case left open by the previous case involving LWOP for minors, the exception is somewhat limited.

ETA: SCOTUS is ever active. On 3/10, Justice Sotomayor,  explaining the conflict check for some reason didn't catch it earlier, recused herself from one of the faithless elector cases given her friendship with the party.  On the docket page, there is a letter explaining this, which would be the rule (unless there is some good ground for privacy such as a medical condition) per a House bill previously covered on this page. 

It is  simple act of openness and avoiding the appearance of conflict that advances public respect and other good stuff.  I think orders should be linked to docket pages generally which shouldn't be too difficult -- so someone doesn't need to do a search in these cases to check out the case materials.  A person who is not aware of the docket page here might just see the order [more than once I saw even a person somewhat famiilar with the SCOTUS website was confused merely with the different order pages, so doing a "deep dive" is one level further] without knowing why she recused.  The media page also would be a logical place.

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I listen to the Strict Scrutiny podcast, which involves three women in law and still get a bit confused about the voices (Kate Shaw has a deeper voice and I'm fairly sure about Leah Litman .. but not quite there yet).  I made a comment on Twitter that Melissa Murray's voice was not quite as expected (wouldn't say it, but she at times sounds "cutesy"), which got a Obama shrug .gif from her over a month later.  Tad embarrassing  (didn't tag her).

This is a long aside to explain why I checked out the C-SPAN Landmark Cases episode for which she took the pro-choice side.  Skipped it at the time since I figured I had enough about abortion, something for one thing I wrote two papers on (one in my Catholic high school!) over the years alone.  It was pretty good with the page having some resources, but as is usual with something that condenses a lot of stuff into a short episode, a good amount of stuff is skimmed over at best.  Thus, sometimes I am like (including when she speaks) like "wait ...!!!!"

The pro-life guy wrote a book and promoted the thesis that there is a major problem with the facts of the cases, including that they did not have in depth factual records. I find it doubtful this would have changed much. It is not like there weren't a range of lower court cases here, which had a mixture of records.  Listening to Doe v. Bolton also suggests the range of material available, if at times in briefing.  It is noted that ultrasounds aren't referenced in Roe v. Wade as well, thus suggesting times resulting in changing understandings of prenatal life.  In what sense?  Heck, the state in Roe v. Wade itself alluded to evidence of the current knowledge helping their case.  Prof. Murray politely said the record could have been more "fulsome" though noted Justice Blackmun's medical knowledge.

In Memory of my beautiful Tigger

We had a wonderful 19 years together. You showed me that I could love unconditionally at a young age, and I will never forget you.

>^..^ <

Meow

Showing what is available online these days, I found an interesting college thesis discussing the background and aftermath of the Doe v. Bolton case.  The paper first provides the above dedication though adds: "And for Mom and Andy.  I would not be the person I am today if it weren’t for your love and support."  Priorities.  The author appears to be doing well.  One thing noted is that the legal team had available a lot of factual material [a range of plaintiffs were also provided, such as nurses, clergy and physicians] and "had prepared multiple witnesses for such testimony and were dismayed at the judges’ dismissal of [the need of] such evidence."  Plus, lots of cases on appeal (the three judge court approach perhaps factored in?) in these constitutional cases do not rest on factual hearings. 

[Looking at the lower court opinion, there is also a reference to a "Jane Roe," but no not the one in Roe v. Wade!]

Again, even when doing a hour and a half presentation including calls and so forth, the complexities of these cases are important to cover the best one can.  The two abortion cases were the product of an extended process, which was touched upon in the episode (e.g., they both were re-argued).  Something like twenty lower court cases, state and federal (see the main opinion itself for a listing of most of them), suggests as well this didn't come from nowhere. Neither did the open-ended reach of the opinion.

The Supreme Court had already decided United States v. Vuitch, dealing with the D.C. abortion law, if deciding things on procedural due process.  I have previously noted that this was an important case all the same because of the broad definition of "health," which did not just include a narrow reach to mean something like "to prevent very serious harm."* This finding avoided a vagueness challenge (repeatedly at issue in the abortion litigation with multiple courts striking laws down on that ground) but it also moved things fairly far along by itself.  Roe v. Wade itself was partially decided below on vagueness grounds though that turned out not to go over well on the Supreme Court level, in part because Justice White said its limitation to "life of the woman" was much more clear.  Cf. the lower court ruling itself and the concerns of Justice Douglas' separate opinion in Vuitch.

The "reform" approach that Georgia practiced had a health exception, which if broadly applied could basically cover nearly any abortion likely to be performed.** And, a law without a "health" exception would seem irrational even to many who would not support so-called "abortion on demand." Which is exaggerated since abortion like other medical procedures would remain regulated and subject to availability in various instances.  Doe v. Bolton could have dealt with things like requiring a panel of doctors to decide if an abortion was justified or blocking out of state patients.  It might have been better to leave the trimester scheme and related particulars for another day. 

Justice Stewart's separate opinion in the D.C. case basically said as long as a physician in good faith deemed it necessary for health, it was not a criminal abortion under the federal statute.  Given abortion is safer than childbirth, etc., when isn't that really the case?   And, back to that concern for factual findings. The main opinion cited another lower court opinion (the lower judge here taking judicial notice and resting on briefs) that did have factual findings, in particular to give a broad meaning to "mental" health.   A key determination:

This Court finds that the determination as to whether an abortion should be performed involves a professional medical judgment by a physician and that judgment, when made in good faith, should not be challenged.

I did not read the pro-life side's book challenging the factual basis of the two opinions, but suffice to say, there is a pretty good chance that someone on the other side would be able to refute the analysis.  Plus, I read and reread these cases repeatedly and skipped over the reference that other D.C. court case.  Putting aside college papers and so forth with dedications to cats, there is so much material out there even in the opinions themselves. And, with current day search availability, you have that much more material to go over.  For instance, Justice Powell's notes are available. So, we shall continue to have these entries.

The tweet still was a bit ill advised.

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* So,  "mental health" would include "for mental health reasons whether or not the patient had a previous history of mental defects."  Furthermore:

Certainly this construction accords with the general usage and modern understanding of the word "health," which includes psychological as well as physical wellbeing. Indeed, Webster's Dictionary, in accord with that common usage, properly defines health as the "[s]tate of being . . . sound in body [or] mind."

Justice White in his own separate opinion (the case split the justices in various directions) made clear to underline that an abortion had to be for "health" reasons.  His brief dissent in the abortion cases later underlined his belief (in rather crude terms) the opinions basically allowed abortions for any reason.  Justice White very well might have at least provided the eighth vote for a more narrow opinion that allowed abortion for "health" reasons.

**  The Georgia law had more restrictive language: "would endanger the life of the pregnant woman or would seriously and permanently injure her health."  But, the Supreme Court agreed with the lower court that a doctor should have wide discretion, "that the medical judgment may be exercised in the light of all factors," expressed in the earlier opinion.

And, again, this was in part to avoid vagueness grounds since just what would "seriously" etc. mean if a procedure safer than childbirth, one avoiding a range of physical and mental health problems, does not meet that test? 

Friends: Season Nine

Running out of Friends -- was going to wait a bit longer, but needed comfort food. What? Will I have to improve my life? The season starts somewhat weakly but it gets better, especially the Christina Applegate Thanksgiving episode for which she won an Emmy (not Emma). Phoebe having a serious relationship also works. Some tired moments, but the gang is still great. I wrote this with the final quarter to be seen but think I'm safe in saying that.

ETA: I basically hold to this though as with the double episode finale in Season 8, think the finale is too padded to extend to a double episode. The table tennis game alone easily could have been removed. OTOH, David was great -- like Janice, he was a great repeat player. Also, the romantic goings on, including a new love interest, had less bite than a marriage, Monica/Chandler [Rachel/Joey was not going to have staying power] or a baby.

Kamala Endorses Joe

The 270 to 1 presidential calendar link I added has Biden and Biden endorsed candidates approaching 200 delegates ahead of Sanders though the lack of winner take all etc. will mean it will take a while before he officially gets the votes necessary for nomination. To speed along the basically inevitable (Sanders himself hoped to win a plurality vs. the field; one on one doesn't work), after Warren dropped out without endorsing (yet), Harris (pushed by some as v.p. among other roles) has now endorsed Biden.

See comments here on what he "stands for." Net, it seems he stands for a generic (kindly) Democrat (with issues; not my first choice!) that gets us past Trump so others have larger role in where the party goes, especially since he won't be around that long (eight years is asking a lot). Somewhat related, see this take on Prof. Ely Jr. and how to work with constitutional problems. I comment some there, including regarding applying it in a way not to make things worse and the possibility for change. Some stuff on climate change too.

Buddhist Prisoner Free Exercise Claims

The First Amendment is particularly important to dissenters, including religious dissenters though especially early on this was deemed to be limited to Christians or at most those who believe in God and an afterlife. An early Supreme Court case, in the 1840s, dealt with a conflict involving Catholics.  A more well know dispute later held that polygamy was not protected since free exercise dealt with belief, or more particularly [a pure application of that principle would ignore various commonly accepted religious acts] because polygamy was deemed to run against basic norms of Western civilization.  (Note that the Bible itself has polygamy.)

The first run of major religious disputes in the Supreme Court often included Jehovah Witnesses, including the famous flag dispute cases. One religion that popped up a few times is Buddhism, including in a case involving the right of a notary public not to need to swear allegiance to God.  In a footnote, it is noted that Buddhism is a religion that regularly is not one that has something generally understood to be deemed to a belief in God.  A dispute last year involved a Buddhist [not yet executed as of this date] deemed to be unequally denied a minister of his choice in the execution chamber. And, a little known prison rights case in the early 1970s gave a Buddhist inmate the right to show if he was being treated in an unequal way.

In the 21st Century, in large part because of congressional legislation protecting religious liberty in prison with a particular funding hook, there has been a sizable amount of litigation arising religious liberty in prisons including an Supreme Court opinion protecting Muslim prisoners having short beards (written by Justice Alito, who has long been fairly consistent in his free exercise stance, up to a point, at least*). But, protecting prisoners in the 1970s was a more novel thing, an earlier view treating prison as a sort of "civil death." See also, a court of appeals ruling a few years before at least leaving open the chance of Black Muslims to have one meal of day without pork, seen as a reasonable compromise.

That penal as well as judicial authorities respond to constitutional duties is vastly important to society as well as the prisoner. Treatment that degrades the inmate, invades his privacy, and frustrates the ability to choose pursuits through which he can manifest himself and gain self-respect erodes the very foundations upon which he can prepare for a socially useful life. Religion in prison subserves the rehabilitative function by providing an area within which the inmate may reclaim his dignity and reassert his individuality. But, quite ironically, while government provides prisoners with chapels, ministers, free sacred texts and symbols, there subsists a danger that prison personnel will demand from inmates the same obeisance in the religious sphere that more rightfully they may require in other aspects of prison life. This danger is not chimerical. In recent years, against the directives of the District of Columbia Commissioners, Muslim inmates in the custody of the Department of Corrections have been deprived of the most basic religious liberties, which only by court order have been restored.

The opinion (which one judge only warily went along with) in part quoted a 1940s Supreme Court opinion that implicitly held that prisoners did have some constitutional rights: "Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system."  The word "many" here implies there are some left.  See also, this 1970s article that also covered a case involving kosher meals.  And, as is often the case, the 1970s lawsuit was just the tip of the iceberg of a much wider story before and after it was handed down as discussed in the article.

The limits of a view of free exercise of religion that rests merely on beliefs is seen in the above cases -- e.g., dietary practices is a basic aspect of many religions.  This impetus of this entry was a somewhat amusing (such as the description of the vegan patty) lower court case though complaints about physical maladies arising from diet is not that amusing on some level.  The judgment held the vegan diet provided to a Buddhist prisoner was inadequate and substantially burdened his religious beliefs.  Veganism itself can be seen as a sort of religious belief (one book spoke of it as not just a matter of food but an overall ethic of nonviolence etc.). 

Current conflicts involving religious liberty claims at times seem to merely be a means for right leaning beliefs to clash with the rights of others such as discriminating against gay people. Other cases are more appealing, especially when they do not burden third parties.  A consistent approach is complicated and raises many issues that should respect religious diversity while not leading to ad hoc rulings that in effect honor only some in part since a consistent application requires a reasonable hand.

Note: I see that after a long lag that the animal blog on the blog list has a few new entries for this year. 

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* The execution dispute cited was a major controversy that in an earlier case went the other way.  Justice Alito eventually wrote an extended separate opinion that granted there was a strong case to be made on religious liberty ground while arguing the early case had a procedural problem.  People pushed back on that but to grant him his due, it showed that Justice Alito has a history of respecting religious liberty to practice going back to time on the court of appeals.

My wariness is that this would include things like practicing one's religion as an employee that supports usage of contraceptives or abortion in certain cases and so forth.  Or, to have legislative prayer policies that respect the beliefs of all religious beliefs. And so forth.  Just what free exercise entails is complicated.  But, his support of things like Muslim prisoners wearing beards shows it is wrong to dismiss him as just caring about right wing religions. 

Abortion Case, Schumer and Elizabeth Warren Drops Out

Yesterday was the big abortion oral argument and Chief Justice Roberts was by accounts (unlike the Kansas Supreme Court -- which had a big abortion case last year -- of course, there is no video) not very supportive of the state's side.  This doesn't mean Louisiana will lose, or lose fully, but it's something.  Alito and to some extent Kavanaugh (who wrote a dissent to the stay in this matter that Roberts joined and was chosen in part for his abortion positions) were mostly alone, Gorsuch staying on the sidelines. 

Meanwhile, Senator Schumer said something about Gorsuch and Kavanaugh specifically that got pushback (I think it advanced goals big picture-wise, but otherwise, this article is mostly on point).  As to Roberts' reply see here (including comments).  Note his reply was released to the media but not posted on the website's page for us peons. Finally, again, abortion needs to be seen as legitimate on social media, tv/film etc. The author nicely thanked me for comments I posted on Twitter.  Edith Windsor's (second) wife also retweeted my tweet about her book and how her finding love again was a nice optimistic moment.  Ah Twitter.

(As Orin Kerr, who I don't like at times but do respect for on the record voting for Hillary Clinton in 2016, thanked Schumer for taking back part of what he said and said it's time to move on.  I agree.  Meanwhile, some Senate Republicans are pushing for a censure vote.)  

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As basically expected, though it's sad, Elizabeth Warren (like Kamala Harris, who some wanted to endorse Biden before the big California primary, not endorsing anyone) has dropped out.  Charles Blow, who early on said "don't you dare vote for Bloomberg," wrote a good op-ed that touched upon Warren (partially blames sexism) and Sanders.

Key point: "In the end, I believe that voters are coalescing around an idea: While they admire the revolutionaries, they are more comfortable with slow and steady progress."  Deep down, though I am supportive of Warren, that to me is a respectable position.  And, Sanders specifically is too blunt and "gnomes will get us to the revolution" about things and nasty about "the Establishment" which apparently includes a lot of black voters.  AOC tweeted that "the revolution" needs to be more inclusive.

Plus, Sanders needs the youth vote and to bring in new people, which doesn't seem to be happening.  Burdens to young voters (26A!) should be noted, but I do not think that is all that is to it since many others are burdened too. There is no perfect candidate but a general election presidential candidate does need  to have some uniting function and in this country also it helps if there is some celebrity-like hook. Obama in various ways had that while being too "Establishment" for some people (talk Sanders wanted to primary him in 2012).  Biden being a sort of Reagan figure might be unpleasant to some, but yeah, that might be why he wins.

Knock on wood.  Sigh though.  I was for Gillibrand. Out.  Harris. Out.  I wasn't really for Klobuchar but early on thought she was a maybe unity type candidate.  Out.  I was wary about Warren but at some point she was just too good to not support especially after Harris left.  Out.  Never for Marianne Williamson. (Not even in photo.)  Never for Gabbard though with one delegate, I believe she is qualified to be at the next debate.  Maybe, for kicks, with my "got to vote for a woman ..."  Nah.  It is not the first time I voted for someone in New York who already left the race.

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To toss it in, there is another troubling execution scheduled for today and I'll update later.   

Update: There was a bit of notice when Justice Thomas -- in charge of the circuit -- stayed the execution but those in the know realized it was probably just so the others could have a chance to look at the record.  Though it appears that the facts make it more notable than some others, no justice dissented or even commented on record.  Though Sen. Doug Jones supported delay and a close relative of a victim opposed the execution, Nathaniel Woods was executed by lethal injection.

I am of the mind that any execution warrants at least a brief statement on why the final challenges do not warrant a stay/review, but there are a certain subset that warrant particular notice.  This from what I gather is one such case and it is depressing that neither Breyer or Sotomayor, the two most open and vocal on death penalty matters, did not do so.  Like there was a recent execution of someone who was on death row for around three decades.  That is Breyer's concern though maybe a murder in prison is not the best avenue.  The facts here are a lot more ripe to use as a red flag on its own and for the death penalty itself. 

Instead, crickets.

Super Tuesday

And Also:  India Citizenship Law. John Oliver recently talked about India's leader (Trump guy) and its anti-Muslim leanings of late; went to a lecture about the troubling new citizenship law yesterday.  India was founded on secular and equal protection principles; this more is troubling.  This ruling about a Hindu holy site was flagged too.  The lecturer also was involved in big sodomy case that was mentioned on Gay USA.  So, you know, I can say that I have limited knowledge about these things.  India has over a billion people, so is of some interest.

(A discussion of United States constitutional law on Twitter flagged the diversity of constitutional law world-wide, India being a notable example.)

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My sentiments remain: Elizabeth Warren is the best option of the pool if we care about basic competency, but that isn't all that matters, obviously.  Also, I wanted to wait at least to Super Tuesday, not relying on about four percent of the delegates.  (There remains over 60% even once California is counted.)  A bit naive, I guess, since Biden's strong South Carolina win was a bit of a dominoes falling moment.  Steyer dropped out (yawn) but then Buttigieg/Klobuchar did (and, hey, it's Beto! remember him?), endorsing Biden. Plus, Warren never showed much viability in actual contests, even if in their hearts, she might have been at least the second choice for Democratic voters. 

I early on said that I didn't like Biden as a nominee. My reasons were mostly substantive. I was wary about his ability in the general election, wariness that really hasn't completely changed, but it was not my primary concern. I opposed him on certain substantive matters. I also really wanted a woman nominee. Yes, I can see various reasons why Biden would realistically be the nominee. My primary image now is a kindly caretaker who can get us past Trump while allowing Dems to operate some including by picking judges. Plus, his vice president might be more notable than usual especially if we have a woman vice president. And, hey, a black woman on the Supreme Court.  At some point, maybe women Warren supporters will not be THAT pissed off.

(There is talk the Warren campaign is considering things -- doing badly in your home state will do that -- but there is a reasonable case that this can help Biden. On policy, she is more inclined to support Sanders, but Biden very well might be more likely to help actually get things done there. If Biden's people can craft a deal, Warren very well might prudently decide that she is better off -- eventually -- going his way. A bit soon though.

Warren was seen by some as the "moderate" candidate if Biden/Bloomberg was a no-go and in comparison to Sanders, this does make sense.  The "Warren VP" talk is simplistic -- don't risk the Senate seat and she would be more productive in her current spot.  Anyway, there is some bad blood between her and Sanders as seen in the whole "you can't win" deal.)   

I found it hard to see Sanders as a general election nominee. I respect the movement he supports, noting that doesn't mean certain flags should be ignored. But, as an actual general election candidate? Hard for me to see it. And, key people, not just "extreme online Bernie Bros," hurt him there. Including he himself.  Many actual on the ground activists can tell you how actual change comes with help of "the Establishment," for one thing. Then again, Sanders is a member of it -- unless some well off white guy in the U.S. Senate is not it.  Sanders and/or his supporters too often come off as angry assholes that do not do enough to address the hard work and compromise necessary for change.  Some are involved there but Sanders does not to me represent who we need on the actual ticket.  Gadfly.

Anyway, yes, hard to see how Sanders will win it even if there are 60% of delegates left. Biden got a plurality in Texas. Sanders got one in California,* but his margin is smaller than the Bloomberg vote.  Bloomberg has now endorsed Biden.  Sanders might do well delegate-wise without it really reflecting his popular vote numbers being handicapping.  RIGGED!  He will have trouble in Florida, another major delegate state. I hope Warren still will have a productive role here. I'll probably vote for her in New York. 

If it's Biden, again, this is the thumbnail take: "Kindly old caretaker who will get us past Trump, pick decent judges and sign some legislation while running things in a matter that isn't that embarrassing. Oh, maybe a black woman vp."  Hopefully, he will be the sort various powers that be, including in the media, are comfortable with, which will help somewhat.  And, yes, he will look old and frail at times. But, apparently, (insert latest reason here) a better woman is not a good fit.

Does Warren have a plan to help?  I vote in late April.

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* It will take a while to count California, but trends seems to be visible. Bloomberg did badly as a whole, but here and there his vote count is notable. Take Colorado, one of the places Sanders won. Bloomberg received 21%. with Biden/Bloomberg approaching 50% numbers.  Bloomberg's big win was American Samoa with Gabbard getting a delegate too.  That is a bit tongue in cheek, but this is a footnote.

(Talking Points Memo has voter totals so you can have fun with obscure also rans getting a few votes. Also notable: Jeff Sessions, still being bad-mouthed by Trump, will need to face some former football coach in the Alabama senatorial primary.  I really hope Doug Jones has a real shot at hanging on.) 

SCOTUS Watch

SCOTUSBlog ignores such things but Kenneth Jost tweeted this helpful bit about an order that dropped on Friday: "Alito issued partial stay, late Friday (2/28), of broad discovery order by USDC-EDPa in multidistrict antitrust litigation against pharmaceutical companies." The blog does provide helpful summaries of full order lists generally and did so today, but not sure why they aren't fully consistent since there simply aren't too many of those stand alone orders.  And, they have traditionally ignored summer order days.

The big news last week was a DC circuit ruling with an unfortunate panel (especially for that circuit; en banc is very possible) that blocked a congressional subpoena lawsuit on standing grounds. The dissent emphasized that the case was particularly easy since the subpoena was in respect to an impeachment investigation.  This underlines why the second impeachment count (which was much broader than this one lawsuit) was on point.  The ruling is lousy and the slow-walking underlines why Congress needs to address the general issue of litigation of this nature somehow. 

Prof. Segall thought the opinion was bogus but focuses on the Supreme Court "making shit up" here with a comment by me.  I think there is a form of "constitutional common law" if somewhat different than normal common law.  One thing there, which I didn't emphasize in my comment but touched upon somewhat by another comment, is justices case by case make law with some important input from current societal and legislative action.  This is seen in the briefing -- what law and society thinks equal protection, let's say, means in 2020 will be different there than 1920. 

There is also a new House bill that is geared to openness of court proceedings (it expressly covers a concern of mine -- opinion announcements),  ethics rules applied to justices and free access to online materials.  It provides lag time to allow courts to do this. It should, not saying it will, have bipartisan support.  People like Chuck Grassley has supported openness but not sure about the rest.  After all, #1 example of ethics will be for some Justice Kavanaugh.  Something like this should be put out there by those running this year. 

The big news in the Orders List is granting a pair of cases to take the ACA (sic) litigation involving a right wing lawsuit even some usual suspects think is stupid.  The question is why take it now -- there was an argument to decide it before the election, but doesn't look like that will happen (?) -- but anyways, pretty good shot it will be kicked to the curb ala King v. Burwell.  Which even some who supported the dissent there would agree is the appropriate result.  Still, one never knows, and seems sensible to wait until after the election, at least, if they aren't going to decide it before then. 

As usual, the order had a variety of things, including two other grants of mild interest (Leah Litman, who wrote that ACA opinion piece, is always interested in ACCA cases). Gorsuch wrote a statement to make sure him agreeing the bump stock case is not ripe doesn't mean he is a friend of Chevron or doesn't care about gun rights or something.  Prof. Dorf wrote about that case here.  Gorsuch is full of himself there -- e.g., agency deference very well affects "liberty" as seen by the range of restraints that result following agency regulations. 

Abortion case will be heard later this week. Fun times.

South Carolina Primary / Abortion

well fuck.

— Leah Litman (@LeahLitman) February 25, 2020

Biden had to do really well in South Carolina, so the talk was, and he did. Steyer conceded -- he did come in third but people just didn't think he had a shot -- as he should have before now. So, delegate-wise with Super Tuesday and Super March  (1/3 and then 2/3 as a whole)  here, it's Sanders and Biden.  Big sigh there.  I supported a guy that ran against Bill Clinton (and died of cancer of few years later) so I guess being a Elizabeth Warren supporter is my fate. And, voting after it's about done.

My concerns about Biden remain, but of the two, he is a better choice.  A sort of Reagan figure in some ways if more decent with better policies.  Can see him as seen as a good placeholder to get us past Trumpism.  Again, I am not excited about that lower expectations and his flaws remain.  But, reality based community and all that, and yeah I like that black woman Supreme Court justice thing.  His v.p. choice also might be appealing and yes more important than usual.  Anyway, guess what's coming up?

ETA: Buttigieg dropped out Sunday night and after seeing an appearance blocked by a protest (don't think the two really are related but it's an example of keeping up with events) on Monday morning, reports are Amy Klobuchar is out and she will endorse Biden. And, now I see that Buttigieg will as well.  I expected that his voters would lean that way but some poll data suggests more of an even split  Will early voting and Bloomberg now screw Biden especially in places with a 15% floor?

The top link is in response to the border shooting opinion last week, but Prof. Litman very well might bring it back when the big abortion ruling comes out this term.  The oral argument is this week.  Apropos, someone asked me about states that allowed abortion after six months, noting she knew that New York did.  She was having some dispute with someone and think she was viewing New York and Virginia moves of late thru a Fox News lens.  She is one of those elderly Fox News loyalists.  I replied:

The Supreme Court held that an abortion to protect the life or health of the pregnant woman is protected. That applies nation-wide. This is so even after six months or technically "viability" -- when the fetus can survive birth (though it could be very risky).  That occurs around six months.

New York has a third reason -- if it is determined if the fetus cannot survive such as if the fetus is brain dead.  The woman is not required to carry the fetus to term there even if she finds out late and that often would be at least somewhat dangerous to the woman anyway so might meet the first two rules.

It looks like about twelve states allow an abortion after six months above and beyond the life and health of the woman. For instance, Utah allows it for "cases of life endangerment, severely compromised health, rape, incest or lethal fetal anomaly."

South Carolina Primary / What is At Stake

Next week is Super Tuesday, which provides to me a real sense of where we are in the presidential race since unlike February, we are talking about a third or so of the delegates necessary to win. The first few races provide more limited evidence with around four percent.  Nevada provided some evidence of Sanders' support in a state with some diversity while today's South Carolina Primary is promoted as a sort of "firewall" for Biden.

I am strongly supportive of Elizabeth Warren, somewhat wary of her assumed negatives earlier on, thus supportive to some degree the likes of Kamala Harris.  But, we are past that moment, and even if I'm willing to imagine a Amy Klobuchar compromise (flagged that as a possibility early), doubt she has much of a shot even if she is the NYT "moderate" co-endorsee. More so than other years, I'm actively wary about the alternatives.  Was I ever so against a possible option as Bloomberg?  I don't recall so.  Yes, I'm aware of needing to support the ultimate nominee. When wasn't that a thing?  The stakes are higher now, but when was that not really a thing?  Other than a limited (if notable) number of Sanders caucus/primary voters, people readily say they will do so. 

But, let's keep in mind that the stakes shouldn't be as high as they are.  The clown show responding to the virus that some confuse with Corona beer just is the latest example of it being simply horrid that it isn't more widely accepted that Trump simply cannot be elected in a sane universe.  I saw reference to a somewhat more limited reason this should be so.

Two important things to note about the DOJ's support for the Free Speech claim of a wedding photographer against public accommodation law: 1. A new way of describing the claim 2. The erasure of eradicating sex discrimination as a compelling government interest. /1 Thread

— Liz Sepper (@lsepper) February 28, 2020

A strong support of this variety of discriminatory law should be something that leads some Republican minded sorts to oppose Trump as well.  Some other (we aren't lacking examples) policy related reason might be a better option pragmatically, but let's cover this.  It has a familiar ring.  Among the blogs that no longer allow comments (Concurring Opinions no longer exists) is a conservative leaning Catholic law related one that I and others pushed back upon in cases of this sort. 

Prof. Sepper notes that the Administration argues that even race is "maybe" enough to justify antidiscrimination laws, moving past even the counter to those who say race, sex and sexual orientation should be treated the same.  When the Supreme Court punted (about the best realistic option there even though the reasoning is dubious) in the cake case, this sort of question was left open. Now, we have the Kavauangh Court and even with more sane people in the White House, the constitutional test is up in the area.  Kennedy was the fifth vote in Hobby Lobby, as one recalls, and was the only conservative there that didn't merely grant the compelling interest to protect contraceptives rights.

Equality sanity as well as the courts are at stake in November.

NY Plastic Bag Ban

I have a few reusable bags including a special plastic one that is supposed to be able to be reused over 100x and also used to repeatedly say "no, don't need one" since my shoulder bag held a lot. But, it got tedious. The gray bags at the Dollar Store was good to use for Ebay book sale wrapping and Rite Aid bags for recyclables. Had a lot anyways and am just one person though the supermarket near me (and the library!) has a bin to recycle bags.

But, the new law starts in March and will see how things go. The fee for paper bags goes to a good cause, but if someone pays over $50 or whatever, stores are petty to charge the nickel. Other than harder to hold when I take a bunch of bags in for my mom once a month, not sure how this really affects me much. As to how much it will help, can do something for a city this large. Plus, it's helpful for the average person to do things so they are part of the solution. It's hard to quantify but it seems in a big picture sort of way it will affect minds and the public good. Anyway, gives me a chance to use my bags.

Buck v. Bell

Adam Cohen has a new book out on "Supreme Inequality" as in Supreme Court and just read his book on Buck v. Bell. Pretty good though a bit repetitive on the eugenics stuff and a bit too thin on cases that came before (author studied law). Recall reading Paul Lombardo's book years back and Victoria Nourse's article and book on Skinner v. Oklahoma (restraining eugenics applied to some criminals as a violation of equal protection) which discusses the case too is also good. And, Marlee Matlin portraying her in the film.  Nourse was an Obama court of appeals pick, filibustered.

As things go, the Virginia eugenics law was better than some (applied only to institutions, limited categories and procedural protections). A basic problem was the bastardization of the process applied to someone not an "imbecile" (or "moron") and not applying basic due process (her lawyer was basically a stooge to help authorize the law in the courts; she and her sister both didn't realize they were sterilized) even if they were technically required. This was a reflection of the basic inequity of the process including open-ended vague terms like "feeble minded." It important to note that not only was eugenics starting to be disfavored (including challenges to dubious intelligence testing) by the 1920s, but most court battles led to the laws being struck down on a variety of grounds (bill of attainder, due process, cruel and unusual punishment, and equal protection).

As Nourse notes, though substantive liberties were starting to be recognized (see, e.g., Meyer v. Nebraska, liberty to marry and raise children), something like body integrity was not the usual concern though at times disgust at the nature of the procedure was expressed. Instead, we had findings only sterilizing those in institutions or certain types of people were illegitimate class legislation.  The law here was not of that type, but a few courts also deemed it as illegitimate criminal punishments.

And, even after Buck v. Bell, a few state courts found such and such law procedurally inadequate. There was some concern for civil liberties here, if at times expressed in a different fashion. This makes Holmes' opinion and all justices but one (who dissented without an opinion) that much offensive. As the book notes, eugenics seemed to be the one cause Holmes liked, so the brief opinion (unlike his norm) was actually gung ho about the policy (cf. the Brandeis approach). Even the infamous "three generations of imbeciles is enough" is more slogan than reality -- the record did not label Carrie Buck's child (a baby at the time) an "imbecile."

And, the numerous lower court opinions that ruled the other way underlines that even if the law was upheld, the case against it warranted a bit more attention.  Buck's so called advocate didn't help matters here, but even his half-hearted effort provided something warranting more than the opinion.  About fifteen years later, a criminal eugenics law that applied to some crimes was struck down on equal protection grounds (one justice was on both courts), but Buck v. Bell itself was never overruled.  I would think, however, there is enough law in place to at least restrain the process including reliance on vague standards like "feebleminded."

OTOH, people who aren't monsters might debate some extreme case such as sterilizing someone severely mentally disabled who was raped [it later came out by her own account that Carrie Buck herself was raped] or the like.  Plus, a range of issues including science, bodily integrity, institutional controls, equal protection and others still remain. Nourse' book, e.g., raises some interesting questions in its conclusion. 

Road to 2021 Continues ...

It really didn't pop up in my social media but yesterday was Mardi Gras and today Ash Wednesday, which means we are entering Lent. We are having pre-season baseball games, the Yankees have another major injury and Super Tuesday is soon.

OTOH, with less than 4% of people voting, there is some talk the primary season is about over anyways though even with Bloomberg looking bad in two debates (one yesterday with the "Biden firewall" South Carolina primary this Saturday), he is somehow ($$$ ... damn, another stupid commercial) is still a thing. What? Debates are stupid and candidates who are trying to win are not just kumbaya with Trump the enemy? I get it, but maybe calm a bit down too?

We basically have people saying that Warren would be the best POTUS, but you know, as things go, it might not be enough. Her job is to do the work (attack Bloomberg; hey, why not make her VP?) and let some old white guy (Kloubuchar beating Buttigieg Mortal Combat style) have it. Anyway, Harvey Weinstein convicted. Justice does occur, somewhat.

SCOTUS Watch: Opinions

We are starting to get opinions of the Court -- tossing in yesterday's per curiam, five came down Monday and Tuesday though as expected for this time of year, most aren't too notable.

Stolen Seat Gorsuch, e.g., wrote an opinion eight pages total (with headnotes and partial pages) dealing with federal courts being involved in "common lawmaking" that addresses a footnote of sorts that might interest a few, but that is about it for now.  Also, RBG mostly had the whole Court (Thomas and Alito disagreed along the edges) in interpreting an international custody case with complicated facts but there was agreement on the law.  We did have 5-4 split in a death penalty case, but even the liberals suggested it was somewhat close during oral argument.

The most controversial case was a return appearance in a tragic cross border shooting case, the result (there was some hope, but the result is not too surprising) blocking a so-called Bivens civil damages lawsuit.  This was a 5-4 affair and RBG had her second dissent (see the death penalty case, the majority there written by the other Trump guy) as she dissented last time (there, Sotomayor/Kagan/Gorsuch was not involved but Gorsuch was not seen as likely to help the family here, his concern for executive power and his power to restrain it going only so far).

When Alito was announced as the author, the result was sort of apparent -- Justice Kennedy wrote the first time around and it was not a great result.  The facts should not be lost here.  Back in 2010, Jesus Mesa Jr., a United States Border Patrol agent, killed 15 year old Sergio Adrián Hernández Güereca, a Mexican national. In 2012, U.S. found insufficient evidence for criminal charges. Mexico indicted him for murder, but the U.S. refused to extradite.  One wonders what would happen if a Mexican border agent killed an American citizen.  At least, of a certain type. 

The family tried this remedy, arguing that other means of relief were blocked given the rules in place. Note that even if the United States (not fully neutral) was current as to criminal prosecution, a civil remedy would be a lower burden of proof while obtaining at least a means to make one's case in court. The feds provided a brief at the end of the Obama Administration against applying Bivens here. SCOTUS sent it back to apply a recent case limiting Bivens. It came back. And, the family lost again.  So, from my reading, the last two Administrations had the same basic position.  See also, blocking relief for "state secrets" reasons.

Bivens basically was the tail end of the Supreme Court being open to an expansive use of federal courts to obtain justice with "remember when conservatives like him were there?"  Justice Harlan concurring separately support of the remedy.  Since then, the remedy was disfavored though the Supreme Court never got rid of it.  The basic principle of all wrongs having a remedy perhaps was seen as too well basic for a majority to completely do so. So, on some level, this is a "reasonable" result since the international incident aspect made it allegedly "novel" and thus one would be expanding into new ground.  On the other hand, the basic facts are standard and again just giving a family a chance to get relief for the death of their son seems like basic justice.

Ideally, Congress -- maybe with a bit of bipartisan support since hey some other time you can have a conservative/libertarian martyr as a victim -- would statutorily provide relief.  But, as with the exclusionary rule and so forth, a vacuum should not allow the courts to wash their hands of the matter. Also, this was a basic value judgment by the justices, the 5-4 split underlining the fact.  One or more liberals repeatedly support denying relief of some claimed civil relief but here the facts was particularly damning.  The Roberts Courts, when it suits, is all for minimalism and avoiding larger results.  This very case had two justices (Thomas/Gorsuch) questioning Bivens totally.  A narrow decision the other way was possible.

Maybe, the matter was more principle than a clear realistic shot at relief, especially with the swing justices on this Court and the membership of the Fifth Circuit.  Still, it had an appearance of injustice, one that over the years had more than the usual Trump suspects offering an assist. Anyway, had three more opinions (unanimous, basically all short and the odd justice briefly concurring a bit) on Wednesday.  Calm before the storm.

SCOTUS Watch / Garbage Searches

And Also: A sports channel recently talked about a mostly forgotten (well, it was news to me) moment of history where Arizona lost a chance to host the Super Bowl since it refused to officially support Martin Luther King Jr.'s Birthday as a holiday.  Before the Super Bowl, but too late to matter for that one (it was given one a few years later), the state finally caught up.

After a break, SCOTUS is back and continues its run of notable actions suggesting that the pause of sorts that might be seen going back to Scalia's death is truly over.  This term has a range of notable cases though the rulings have not dropped yet.  Or even been heard yet with Trump financial documents, abortion, faithless electors and more still pending. 

There have been some notable actions, such as decisions on orders, which popped up on Friday after it looked like we had  break. (It was another "oh come on! can I ever get a break?!" moment.) In early evening, another public charge case dropped, this time with a reply (if only a single justice, Sotomayor, writing her views; the other eight -- 5-3 -- not doing so). A strong response against SCOTUS Trump enabling.  For the second time, by the way, there was confusion [saw this on Twitter among people more likely to pay attention] since the only place the order was found on the website is the lesser know "opinions related to orders" though repeatedly in the past a justice writing an opinion in response to an order does not stop the order itself to be on the order page.

The trend this term at least was to drop grants on Friday and then the Monday Order List has a range of denials and other mundane actions. This Monday, however, was one of those cases (not surprising given the break probably) where various justices commented on a range of cases. For instance, Sotomayor found another death penalty case that looked problematic. Thomas found another way to go after agency deference. Also, there was a per curiam regarding a case out of Puerto Rico with some complicated religious institutional issues that the Court found a way to punt.  And, among the various odds and ends is a request for a reply from the solicitor general in a case involving disclosure laws. Might be important to flag the limits conservatives are taking things.  Also, notable actions somewhat missed among the herd.

The big news is that the Supreme Court granted cert in a case regarding the power of Philadelphia to deny referring foster care cases to a religious organization that refuses same sex couples.  State discretion here while the groups still has the power to their beliefs here underline how this is not a great avenue to change the rules.  One question involves the need to revise Oregon v. Smith, the lower court upholding the policy because it deemed it a legitimate general rule.  A few conservative justices meanwhile among the statements flagged the value of expanding religious exemptions in employment, which originally was something the likes of Thurgood Marshall thought appropriate. Justice Alito in particular have been generally consistent in such cases up to a point, even while on the court of appeals.  OTOH, the rights of supporters of abortion to free exercise their religious and moral beliefs suggests the limits on his stance.

Also in Supreme Court news, Ginni Thomas is a major player in the Trump loyalist movement, including creating enemy lists against people inside the government and/or up for confirmation. As seen in the impeachment investigation, the fact that these people are in general loyal members of multiple conservative administrations is not enough. A higher standard of loyalty including in support of conspiracy theories and attacks on ideological enemies is necessary these days.  Kudos to those who speak out.

ETA:  Supreme Court cases are only part of the story -- e.g., often the party gets relief in state court or some other way.  The D.C. sniper (still recall the terror while it occurred)  is such a case with a change in Virginia law that allows minors to be eligible for parole after twenty years (Malvo agreed to wait the few years) as well as anyone with a single felony conviction.*   The Supreme Court had oral argument, but it will be dropped. 

This is appropriate -- we are talking about mere eligibility, even if some understandably use LWOP as an alternative as a way to show the death penalty is not necessary.  Elizabeth Warren received some pushback -- at some point let's be realistic here but it's nice she apologized -- for supporting LWOP while being against the death penalty.  But, yes, especially since the legislation here has a middle path, LWOP as an absolute rule (what? got to have those 75 year olds die in prison?) is bad policy and probably on principle (even if SCOTUS isn't going to find that any time soon) unconstitutional. 

---

* The article gives the exact language: "any person sentenced to a term of life imprisonment for a single felony or multiple felonies committed while the person was a juvenile and who has served at least 20 years of such sentence shall be eligible for parole and any person who has active sentences that total more than 20 years for a single felony or multiple felonies committed while the person was a juvenile and who has served at least 20 years of such sentences shall be eligible for parole."

===

One interesting footnote is the issue of the power of the government to search people's garbage without a warrant or even probable cause. The matter was finally firmly addressed (7-2) in 1988, but just found out that there were at least two other cases (all out of California) over the years covering the matter. A few states (not New York; one thing done is searching garbage for recycling violations) have stricter rules. And, there still might be some questions along the margins.  It reminds me of a portion in RBG's testimony at her confirmation hearing (SCOTUS) about how her appeals court case by case dealt with Fourth Amendment cases. Big questions are not handled all at once; differences arise.

The first SCOTUS case I found on the matter was back in the early 1970s, but it determined that there might be independent state grounds so punted.  The California Supreme Court there held that there was privacy in "trash barrels in front on the parkway adjacent to the sidewalk."  Noting specific details often can matter in Fourth Amendment cases, both here and the last case, the police directly sought assistance of the trash collectors.  The middle case was different in that it looks like the police themselves searched the garbage. This is notable in part because it is said that basically people have no reasonable expectation of privacy here since they know others can and do search garbage. But, as the state court notes, people who realize this don't (reasonably so) expect police will do so. The trash collector or scavenger is not likely to work with the police on their own.

The California courts found various nuances that were not deemed important in the final Supreme Court case.  It, e.g., noted that for purposes of California law that garbage in one's trash can is not deemed "abandoned."  As noted by the dissent in the SCOTUS case, trash being deemed abandoned was an important reason most of the lower courts deemed trash not protected.   It is true that the three justices in that middle case that dissented (Justice White included; he also wrote California v. Greenwood, the ultimate deciding precedent) granted that abandonment alone doesn't settle things.  But, they still made it clear that it surely was relevant that people do so, leaving it open to others to search.

The oral argument in that middle case was interesting in that the government granted (at least for the sake of argument) that maybe certain trash searches might be different because the trash might be placed in the curtilage. For instance, the state court in that first case flagged an earlier case regarding a trash can on a back porch. Trash -- generally per local ordinances that require it -- placed on a curb might be less clear, but we are still talking about that region close to a home that might be deemed to be a protected area.  Trash has a lot of intimate stuff in it, and if people put it in a black trash bag or on the bottom of the can, they do expect it to remain private.  It is not quite egregious as the idea that because we let the phone company access our phone numbers and conversations (the "third party doctrine") that means the police can have access without probable cause, but it still is a bit much.  At least, regulations and local law should put some limits on how this should work. 

[These cases suggest the complications on determining what a reasonable expectation of privacy entails with split decisions. There can be a tag wags the dog quality here -- if courts protect something, people are more likely to accept it as reasonable and the reverse is true as well.  Trying to reason from the nature of the search (a plastic bag with intimate items would usually be protected and do people really think their trash will be searched by the police? but then the material is disposed and open to the views of others) as shown in the discussion might not answer the question.] 

The middle case involves a trash bin in the basement of an apartment building. (The other two cases involved drugs; this one illegal sports betting/betting slips.)  Not deemed curtilage by the lower court, but still protected.  But, maybe a line can be drawn there. It can be argued that protecting home trash would have discriminatory implications, but the nature of the Fourth Amendment probably does here protect a home more so than a basement trash room.  Cf. allowing a roving drug sniff dog to roam in the halls and thus invading the space outside people's apartments. Note too that the lower court there did hold trash is not like a house -- its at risk nature allows a search without a warrant, but there still needs to be probable cause.

This is an interesting subject that provides a chance to examine various nuances of the question.  The book on privacy related cases co-written by Caroline Kennedy also covered some of this ground. One situation, alluded to in one of the oral arguments, involved the government working around the shredding of documents. Such an action clearly shows some special effort to protect the privacy of papers but the government was allowed to in effect tape the strips back together.  And, conceptually related, consider access to emails or files "deleted" that still can be accessed by the government since is anything truly deleted? 

Nevada Caucus

I'll note that I haven't called Sanders abusive. People who work for him have, and that tends to get disappeared down the memory hole because it conflicts with people's preferred narratives about him just being "passionate." pic.twitter.com/unfz0Oejo7

— Sady Doyle (@sadydoyle) February 22, 2020

One thing people think when they think Amy Klobuchar is her alleged bad relationship with employees. But, huh. Anyway, overall, I'm troubled with the idea of Sanders as the nominee. It really depresses me in part since I think Elizabeth Warren is a great candidate. I wish she was doing better though 3% or so of the delegates isn't enough for me (as some seem to be doing) convince me it's like nearly over or something. That's ridiculous. If Bloomberg hates Sanders, why doesn't he admit this and toss his support her way, giving her an edge? The split of the not-Sanders vote is helping him and slivers add up. Buttigieg especially.

Meanwhile, Mets lost their Grapefruit League openers. Just a flag it begins. Somewhat depressed about them though have a shot. 2015 was nice but ended badly. Then, more of the same. Nats won it all. So, guess it will rest on how strong other teams in NL East are and maybe other wild card options. Various question marks. If things click, Mets can do very well.

Tone it Down

My god

It's time for Jesus to come back https://t.co/2HQFYmz93s

— Yashar Ali 🐘 (@yashar) February 22, 2020

This is prime Twitter content. The whole thread yes-man'ed him. Sorry, dude. How dirty are my feet? I wear socks all the time. Traditionally, people at best washed in a tub. A shower where for five or more minutes soapy water washes over (sic) your feet will wash them. If you don't wear socks, yes, maybe you need to scrub the feet at times. I think this is the guy who was upset people didn't wash pillows, but at least there some people said "yeah, I don't do that." My mom didn't wash our pillows. And, inside shoes? Generally just wear socks.

Dixie Crush Singer Lindsey Lagestee Dies at 25

Not familiar with Dixie Crush but yes she died young. RIP.

Election 2020 Update

Yesterday's Democratic debate was big since Michael "how in the hell is he a thing?" Bloomberg was involved. The general conclusion is that he did horrible with Warren really leading the way (though others joined and she didn't just "go after" him). Good thing. The necessary "he's better than Trump" aside, he has too many "Trump-lite" qualities. It is ridiculous to think of him as a credible general election Democratic candidate in 2020. And, I fear it, including turnout. Sanders, frontrunner, came out looking good. But, long term, his issues -- including a ceiling -- stands. Let's see how things work out after early March.

After it all, what was the value of the late intervention in support of Roger Stone that tainted the Justice Department and even scared some federal judges enough to make it public they were talking about such things? Loyalty to Trump and a message to others, not just the immediate Trump co-conspirator (key line by the judge: “He was not prosecuted, as some have complained, for standing up for the President, he was prosecuted for covering up for the President.”). Meanwhile, a crony moves into a key intel position, reaffirming Trump's mentality there. If one thinks about it, it's scary, and Republicans totally own it.

Trump also did his usual favored crowd pardons, including reportedly letting an old friend from NYC free of over 100K left on his fines. Ha ha. On some level, one can argue the corrupt governor from Illinois served enough time etc., but we aren't taking these on a vacuum. His pardons overall were trolls and/or benefiting friends. Net, this is a bad path for justice.

There Goes the Bride

After a bunch of "didn't do it for me" books/vids, There Goes the Bride, a 1932 comedy, hit the spot. (Mid-Manhattan and library at Lincoln Center are good spots to go for a broad selection of DVDs with the latter having a few videotapes too). Somewhat wary since a film from that era can be too slow moving, but the British actress (Jessie Matthews, new to me) carried the film. And, it was rather amusing and brisk moving.

Also, reading the Edie Windsor book and it starts off well. Nice prologue from the person who wrote it with her, including explaining his technique and noting it is obviously only part of the story, welcoming more accounts from different perspective (and citing the one by Robbie Kaplan, who argued the DOMA case). Nice photos including on the inside cover.

Supreme Court Watch: Death Penalty

SCOTUSBlog had a pair of entries discussing federal death penalty matters.

The latest execution scheduled was someone who was in prison for life (multiple murder) who murdered another person guilty of a heinous crime apparently over drugs. This was back in the mid-1980s. With the help of a former federal judge (Obama pick who resigned to run a civil rights office, giving Trump another slot), he is asking for mercy given his time in prison among other things. As cited last year, execution after so long in prison is alone problematic.

So, even here, regarding an extreme case (murder in prison), the death penalty is problematic. Unusual collection of people not wanting it aside, he was executed Thursday..

Cat People

I enjoyed the original Cat People, including the film historian commentary (two movie set), but could not get into the sequel though I had this idea I might have once saw it. The 1980s sequel was twice as long and much more explicit, but got bored with the whole thing less than half-way thru. It has some value - well made and cast -- but less is sometimes more.

Garland/Scalia

I flagged when repeat Supreme Court short lister Merrick Garland became Chief Judge of the D.C. Circuit and his term just ran out and another short lister will take his place. I still think he would have been a very good Supreme Court justice. Plus was a good Obama choice. Scalia dying four years ago went a bit South, huh? Turned out okay for his friend.

Buckley Jr. has been gone for over a decade -- was it really that long? His debate with James Baldwin (need to read more of him) is the subject of a very good book The Fire Is Upon Us. I would link to the author's website but for some reason my virus software doesn't like it. Anyway, Baldwin repeatedly seems to be talking about our times including underlining problems and Buckley Jr. in the long run sort of won the long game, huh?

New Hamphire Primary

After an overblown "fiasco" that amounted to bragging rights when it is clear that basically Sanders/Buttigieg tied and Warren came in a respectable third (but seemed to be crowded out of the coverage), now Sanders "won" when again it is basically a tie with Klobuchar with a respectable third (9-9-6 split in delegates). More also rans (like Yang) dropped out but Steyer is still with us. A new link provides a helpful way to track dates, delegates and polls. And, Bloomberg is basically a Republican with a LOT of baggage. NO. Two more this month!

With sixty odd delegates total, let's calm down about assumptions though yes Biden isn't the lock his people wanted to make him. Warren isn't done either. Someone with a quarter of the vote (Sanders) isn't a lock either. South Carolina (POC!) might tell us something but early March is the big deal. And, still can't take the baby ex-mayor from Indy seriously. So sorry.

Welcome to the club, John Oliver

John Oliver on Colbert's show always seems a bit off, but there was a bit of news (see also this story in late January; the ceremony was in December): after a long time as a resident, he is now an American citizen. Oliver is a prime case of someone against Trump that is on paper what many FOR him would deem an "American." At least, he is married to a Iraq War vet (combat medic) and deep down is idealistic about our culture and traditions.

Of course, the video along with the performer is on Twitter (including saying, in effect, yeah it's me, it's not funny, it fucking hurts): a stripper got hurt falling off a fifteen foot pole. Looking, yeah, looks a tad dangerous. Sorry, it's a tad funny; maybe, she will think that with let's say a decade of hindsight. Also, it is an extreme case of the basic concerns of those in the entertainment industry, let's say. Needing a Go Fund Me for medical bills? Not good.

SCOTUS Watch

The Schoolhouse Gate is a book from a couple years ago that is labeled as the first full press look at constitutional history of the rights of schoolchildren. As a whole, I found it worthwhile but at times felt it skipped over some stuff. Why exactly did the religion chapter not start with Everson? And, I have mixed feelings about vouchers, but its dismissive take on the dissent in that case was a tad lacking. But, I realize, lots to cover. As to the overall theme, I think you can give too much attention to the Supreme Court here, even court-wise.

The Supreme Court is in recess and there isn't an execution scheduled this week, but it did drop some rules last week. Do not see them on the "Rules and Guidance" page, one more case the website is a tad lacking. The Chief Justice, who wrote about civics and the role of judges to inform in his annual report, for one thing could have dropped an examiner or letter for the general public (instead of just for the press) about his role as presiding officer of the impeachment trial. They are back for a conference on the 21st; orals last week.

Oscars

Seem early this year. I used to like the Oscars a lot including going thru the nominees though then used to go to the movies regularly too. No host alone seems off. And, look at this list that is supposed to show how there were a lot of good movies. Really don't want to see most of them though someone told me Parasite was quite good and I reserved two of them. Did enjoy Little Women and think Florence Pugh has a shot of winning for her role. The director should have been nominated. But, the field does little for me. So, really have little to say.

ETA: Laura Dern, who plays her mom, won but for a different film. Interesting Best Picture: Parasite, the first foreign language film to so win. On some level, not a gigantic surprise with the expanded selection, some dubious choices and it getting a lot of good reviews.

Impeachment 2020: One Side Being Right Is Problematic But Not Quite THAT Way

Special note.  Trump posted a video on Twitter and Facebook that  has Pelosi tearing up his SOTU not after it was over but while he honored a Tuskegee airman and so forth.  They refused to take it down as a doctored video though the article notes starting in March Twitter will label such things “manipulated media."  Various replies suggest Pelosi tore up the speech when he talked about "x" and disrespected the people.  You never know when such things aren't trolls.  See also, here where there is a skillful campaign to target reporters who report bad things about him.  

You say we are sectional. We deny it. That makes an issue; and the burden of proof is upon you. You produce your proof; and what is it? Why, that our party has no existence in your section - gets no votes in your section. The fact is substantially true; but does it prove the issue? If it does, then in case we should, without change of principle, begin to get votes in your section, we should thereby cease to be sectional. You cannot escape this conclusion; and yet, are you willing to abide by it? If you are, you will probably soon find that we have ceased to be sectional, for we shall get votes in your section this very year. You will then begin to discover, as the truth plainly is, that your proof does not touch the issue. The fact that we get no votes in your section, is a fact of your making, and not of ours. And if there be fault in that fact, that fault is primarily yours, and remains until you show that we repel you by some wrong principle or practice.

Abraham Lincoln in his Cooper Union speech was challenging those who strongly criticized Republicans as "sectional" on slavery.  It is what comes to mind when today's Republicans cry out that supporters of impeachment were "partisan" and (like there) appealing to the Founders against that sort of thing.  What is the ultimate take there?  Wrong is right when not enough people on "both sides" think it is wrong?  On some level, it was "sectional," but that didn't make the cause against slavery wrong. At some point, divisive things have to be pushed because the alternative is worse.  It is simply absurd situation ethics to think otherwise.

NO presidential impeachment in our history was some fictional united effort. The first major challenge -- that led to a censure -- was against Andrew Jackson. A limited number of Whigs also went against John Tyler.  Though some wish to find it evidence of injustice, the impeachment of Andrew Johnson was surely partisan. What of Nixon?  Surely, until near the end, the effort was one-sided. Yes, there was more support of the impeachment hearings.  Even then, Nixon (in his resignation speech) said he was willing to fight further except for lack of support.  Such lack came late in the day though and today's party would probably have stuck with him. We would retain talk of a "partisan" impeachment taken to mean the raw reality that the necessary supermajority was not present. And, we know of the Clinton impeachment as well.

Some Republicans were concerned about the "optics" about Trump firing Sondland. Concern and hand-wrigging at some point is trivial; besides, part of this was merely political.  Some Republicans will be in tough races this November. Plus, in general, they have some pressures since there are significant numbers out there who -- unlike them -- do not find enabling a person who daily we have reason to be appalled is even on our television screens [he nauseates me -- I'm tired of seeing him mentioned on Stephen Colbert's show, even as a constant subject of scorn] something we at worse have to count as the cost of doing business.  The basic "wrong principle" here is not quite the point.  I note -- especially as a white person -- the problems of using a speech about slavery here but other than a basic statement of principle, Trump advances racism as well at any rate.

This is not merely a political battle. Impeachment like judicial review is a method to go beyond mere elections and politics.  It's a basic line in the sand and I am appalled by some even against Trump who simply find this hard to comprehend.  They in part think of things in raw practicality, including fearing impeachment would hurt election success.  I find the arguments there dubious and at times of the caliber of Calvinball.*  Or, they look at things in a limited fashion -- would not election success be better, especially when acquittal was a given?  As if the two things are not connected.  Was it wrong to vote against Kavanaugh or filibuster Gorsuch?  Sometimes, you need to fight for principle. And, again, elections are discretionary.  You balance a range of things.  Yes, life is discretionary too. Prosecutors use discretion.  But, it is a difference in kind. 

Remarkable. Sen. Graham says he talked to AG Barr this morning and they have set up a "process" by which Rudy Giuliani will now send his Biden "dirt" directly to AG Barr.

I made a reference in the other post that the Trump Administration is selectively providing materials to the Senate to aid and abet his crimes against the state (impeachment being for that) regarding Hunter Biden.  Sen. Graham, who went into his macho ranting mode when giving his statement on the floor before the impeachment vote (the same guy who in 2016 warned us about what Trump would wrought; didn't quite know he meant on himself to this degree) is a major assist in this effort.  AG Barr, who continues to make one pine for the days of AG Sessions, also announced he will veto any investigations regarding the elections. 

Impeachment drew a line in the sand. One person -- and even Romney didn't so on obstruction of Congress -- on the side of Republicans was on the right side.  Oh some were in the Concerned Caucus for which Susan Collins won leadership hands down.  Some were in the "Hey, we said he was wrong" Caucus though in various levels of conviction. Lamar Alexander followed up with basically giving a Trump re-election endorsement. Others (see last discussion too) will give you a "whataboutism" or complain about process. Others simply will say Trump did nothing much at all wrong.  This underlines they do not think it impeachment level, but really just discretionary politics.  Politicians do a mix of things there, sometimes fairly serious.  But, winning is most important.

Such is the name of the game now. This is the "lesson learned" by Trump. Some might even blame the Democrats, who are given the agency in part since like some five year old or non-human animal, people don't expect anything from the other side anyhow.  (One blog calls this "Murc's Law.")  Cute trick.  But, if Trump was not impeached, would he actually have done less?  At least here, the matter was pressed, and one party (and the other party's 2012 presidential candidate) stood on the right side.  The battle continues, including in litigation (see March Trump financial cases**) and in Congress (well at least one half).  This should not be forgotten akin to a tough loss resulting in not fighting again the next game.  Some will say it's over.  No fucking way is it over.

Of course, we also need to fight on the electoral battlefield. But, battles tend to overlap as seen in litigation over marriage rights or whatnot.  And, impeachment reminds us just what is at stake there.  Romney stood up. Who else will, including in November?

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* One person said an acquittal, likely -- which turned out to be false -- with some Democratic support in the Senate -- as something the Media will hang over the Democrats' heads.  As if not going after Trump in the strongest fashion would not either.  The Media, when it suits, is said to always find fault with Democrats.  Here, they apparently would selectively do so.

Some also just tie Trump as a "Republican."  This is akin to thinking men are as a class dubious characters including in our relations with women [we are in various ways and will not claim absence of guilt there in some fashion, particularly my wandering eyes] so actual sexual assault is just par for the course.  Trump here stands out.  Kavanaugh also stood out there even in comparison to Clarence Thomas who was after all accused of sexual harassment, not sexual assault.  Some firm lines have to be drawn.

** Emoluments was flagged by the House as an aspect of the need for the materials sought.  This is a somewhat forgotten thing though in a big picture way it fits the wider whole, including allegations Hunter Biden benefited from his connections to the Vice President.  This is almost comical given the live benefits to members of the Trump family, including Ivanka Trump's business dealings.  Yet another thing that to me is not brought up enough -- surely with daily talking heads etc., there is plenty of time to fill and such matters can be brought up regularly.

The delays of litigation is underlined by how multiple emoluments suits are still in various stages in the lower courts.  A court of appeals ruling just rejecting the standing of a suit involving members of Congress and on that ground it might have been correct.  But, there are other litigants with direct harm where such a problem does not occur. Plus, it is something that (with or without additional materials) the House can look into and pass legislation to address.  This shows the slow nature of things.  

With A Kiss I Die etc.

"Juliet" as a vampire was a thing on Wizards of Waverly Place in a well done subplot, but she was just named that and around longer. This one is the actual Juliet as in the Shakespearean character, who turned out not to quite die. Well, not the first time. Good lark. Juliet is played by a black actress and the second time falls for a woman. Tragic that time too.

A trip to the temporary Mid-Manhattan Library location (so it isn't just the fiction room; you just go past the lockers) led to a few good films if no Friends. Hannie Caulder is a revenge Western with Raquel Welch and Robert Culp. Beginning is a tad pointlessly violent (why kill everyone at the bank?), but as a whole, it was good of its type. Seeing bit of a theme, Honeyglue is about a dying woman who falls for a gender fluid "girl boy." Good too.

(A bit more on the last two. The three heavies are buffoons, just a start of different touches. Robert Culp with a beard and glasses is a twist on the bounty hunter. Of course, Welch adds a twist. A familiar face as the gunsmith is good; "the Preacher" to me was a dubious move. It's overall well made too. Nothing remarkable but overall good flick. The other is a nice indie find with a good cast. The kidnapping of the doctor bit was stupid. The animation (tying into the title) etc. is good too. Again, not remarkable, just a good flick.)

National Prayer Breakfast aka Trump Victory Lap

Catholic leaders should boycott this event in the future if it continues in this vein. Because it is no longer the occasion for prayer with the President, and is no longer prayer in any meaningful way, but is an exercise in spite, contempt and vanity.

— James Martin, SJ (@JamesMartinSJ) February 6, 2020

Prof. Eric Segall (Dorf on Law)  had a cry from the heart after Trump gave the Medal of Freedom to Rush Limbaugh (his cancer prognosis led to various people on the left to be a lot more respectful than he tended to be) during the State of the Union.  Finding problematic things that he said over the years is ... well, let's say it is not hard.  What really depressed Segall, who wears his heart on his sleeve at times on Twitter was that conservative professor types (he has engaged with them a lot over the years) did not criticize giving this top civilian honor to such a person.

[I wrote this on Saturday but it's mostly about stuff ending on Friday, except for one thing, so dated it thusly.]

Some moments get you really down, I guess, even these days.  Something set me off this morning -- in a thread on this matter, someone "whataboutism" Bill Clinton.  Not some random troll. A lawyer and "university professor, teaching moral theology."  The person at the link called him on it, granting Clinton did something horrible regarding Monica Lewinsky.  The guy then LIED and said "so you are saying" (usual flag that it's the opposite) that he accepted Clinton committing perjury etc. He did not.  It was a fucking lie. The person even said Clinton was "reprehensible" (overblown for having an affair with an adult).  To be lied to and Trump/RL's wrong ignored.  It's really the Democrats fault for handwaving Clinton.  Who admitted guilt and got punished!  This really pissed me off and I cried out in the void. As noted, the medal was given to Clinton and Bush for global health efforts.

After the Republicans bowed down to the Great Leader on Wednesday, Trump used the National Prayer Breakfast as a victory lap. It was be disgusting just to hear Trump give the usual b.s. given the source. Pence saying that sort of thing would be unpleasant, but at least there one figures he actually at believes it on some level.  Maybe, that doesn't mean much really, but even to the degree we are dealing with the usual grifter that uses religion, Trump really is an act of desecration.  Of course, he made it all about him.  I was interested in reading about the event and its history, but the coverage tended to turn on his part in it all.  Spitting on the honest believers (Pelosi and Romney).  Getting cheers for his victory lap.  Those who respect religion -- including those not specifically believers -- should be appalled.

After spitting on God, so to speak, Trump started the revenge stage. Note that we already had various people who testified during the House impeachment inquiry targeted in a range of ways. But, Lt. Col. Alexander Vindman has a special role here given his Americana moment and everything.  He and his brother found out, per the famous moment where he said he told his father that he would be okay for telling the truth, what that means in this day in age.  On a basic level, I think he will be okay, in part protected by his military position.  Gordon Sondland as a political appointee had less security. Trump also helped Senate Republicans continue his targeting of Hunter Biden since it would be wrong to obstruct Republican controlled congressional bodies.  And, a special "fu" targeting New York for protecting undocumented immigrants.

The acquittal vote is an "end of the beginning" moment.

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Just to toss it in there, there was another Democratic Debate Friday Night (yeah, still a thing; still didn't really watch) with Bloomberg still not there. Yang was there, since like the Orioles being in the MLB, technically he qualified somehow.  Steyer also though as with Yang it is depressing a range of more worthy types (like Booker, Castro, Harris etc.) are not there instead.  Then, you have the "uh, yeah, he's from Indiana" co-winner of Iowa, Buttigieg, who Klobuchar (honorable mention) speaks for many of us now and then gets a chance to say "okay, kid, you don't belong here, it's the big leagues now."  This year's Jeb! (Mr. Fourth Place in Iowa), Biden and "um, you don't seriously want THIS guy as the nominee, right?"  (unless you are the Republicans) Sanders.

And, the one credible option, Warren, who hopefully will eventually be a compromise choice when Biden doesn't make it.  I mostly followed on Twitter and my head went up when there actually was something about the Supreme Court.  Talk of a "litmus test," which was a chance for everyone to say they would support abortion rights.  Duh.  The courts is a major issue for Republicans (some under 40 Federalist Society type up for the court of appeals was the first thing Gravedigger/Moscow Mitch worried about after the trial was over) and is after all 1/3 of the federal government.  It really warrants more attention then it gets.

(I clicked on to hear Amy Klobuchar talk about protecting precedent, which is an asinine buzzword here really years into the Roberts Court. Does that mean she won't appoint someone who will challenge Shelby County v. Holder or what?) 

Iowa Caucus

I have not gotten into the weeds regarding the Democrats messing up the Iowa caucus, but it is unclear how much of a clusterfuck it really is as compared to a screw-up. The numbers will come out eventually and we basically got the delegate count now. Will a spare delegate or whatever matter? But, there is a lot of excitement over the matter; maybe I'm just not paying much attention. A local Iowa paper flagged something many missed: there was also a Republican caucus! Bill Weld got one delegate! Joe Walsh a few votes as well as "other." I know; not very striking, but unlike some states decided, at least they had one.

Buttigieg/Sanders now have around the same number of delegates with a narrow difference on vote counts (mainly for bragging rights, I gather). About a quarter of the vote each. Doesn't seem, to quote an adjective, someone has a "decisive" victory. Warren has around twenty percent, maybe 18. Biden (a surprise, since he looked like a winner beforehand) has around fifteen percent. Amy K. around 12%. Basic problem is the caucus is a crummy inconvenient process that has electoral college implications as a matter of "one person, one vote." Maybe, just have a normal primary and rotate first dibs?

I still can't see Buttigieg as the nominee. "Bernie" (he's not five; his name is Sanders!) really doesn't work either. Bit early to assume. The "it's going to be Biden" concept hit a snag, but unfortunately not quite time to be gleeful there yet. Warren just might be able to be the unity/moderate candidate. As one person noted, Sanders and Warren might have similar policies, but on "unity, treatment of women, character, electability," not quite the same.

Beyond Freedom’s Reach: A Kidnapping in the Twilight of Slavery

I saw a passing reference to this book in another and it is an interesting example of using a snapshot as a way to tell a wider story. The actual case (New Orleans slave has three of her kids taken to Cuba in the midst of the Civil War and she later fights back) covers a limited amount of the book while we get a lot of background material. This is a useful approach to me as seen in various books about Supreme Court cases. Timely for Black History Month.