Opinion Day

The Supreme Court cleaned some pending matters today with a busy opinion day. Five opinions, one each for the five with the least seniority (Barrett, Kavanaugh, Gorsuch, Kagan, and Sotomayor).

That is one unlikely majority, especially with Breyer more senior along with the Chief Justice, Thomas, and Alito. Sotomayor has it a bit easier with Breyer replaced with a junior liberal. Still unlikely as would be the in theory possible Kagan-Jackson majority. The best bet is to find something the high Federalists would dissent for and Roberts is recused. Kagan is harder. 

(The release -- again automatically since they don't show up for opinion announcements these days, denying us a chance for opinion announcement audio at Oyez.com -- came least seniority to most.  I won't do it in that order.) 

There were two unanimous opinions.  Barrett had a procedural opinion that gave a limited win (allowing the person a chance to fight on) regarding a tax case. Happy Tax Week.  Maybe, the IRS will finally clear up my issue.  (I asked AOC's office for help.  I thought they forgot about me but then got a call that they need a privacy waiver.  That day I receive another letter from the IRS saying they found another reason to delay things.)  

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Kagan also had a procedural opinion that helped the person who brought the appeal, but only so much.  Providing some of her skillful prose ["The path of our decision has been as short as the hunt for Rue Saint-Honoré was long; our ruling is as simple as the conflict over its rightful owner has been vexed."], and attaching a couple pictures of the art, she explained why California law should be applied in an attempt to get back some Nazi seized art that wound up in Spain.  To be continued. 

(SCOTUSBlog has analysis to explain the nuances a bit more and  it sounds like the family of the original owners still have a stiff hill to climb.)

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Kagan's pen, quite sharp, was in dissent in a Gorsuch case involving habeas.  I do not claim to have the expertise to parse such things, but Steve Vladeck and Leah Litman are usually reliable. So, if Mr. Shadow Docket thinks Kagan (for the liberals) is right for sneer at Gorsuch's "law office history" etc., her passion not for this case particularly, but the likelihood of what it will bode for the future, I'm inclined to agree. 

[Prof. Litman also panned Breyer's latest "book" (if noting her liking the man) in a well received article.]

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Sotomayor had the opinion (Alito thought the the majority went somewhat too far; Thomas for Gorsuch & Barrett dissented) in case involving regulating signs.  The ordinance was upheld and as Breyer noted in a fairly convincing (to me) concurrence, part of the problem here is that the Roberts Court has become too one note regarding free speech cases, even when regulating commercial matters of this type.  

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The most notable opinion involved Puerto Rico.  

Kavanaugh had the opinion upholding a federal policy where someone might be denied SSI benefits if they live in Puerto Rico. Ian Millhiser wrote last year (this case was argued fairly early, making one wonder about the drafting) that this was a tragic case.  His write-up today does as well.  

The tragedy is that justice is on the side of the litigant, but the result might be open season to second guess financial policy that can lead to unfortunate results.  For instance, my governor was upset the Supreme Court didn't take a case where blue states alleged a certain tax policy was discriminatory to blue states.  But, what constitutional rule protects states like that?

This suggests why this opinion was 8-1 though the opinion itself was a thin six pages.  It is basically a case of wanting to get rid of the thing.  Justice Thomas wrote a concurrence finding a new constitutional toy -- he argues that federal equal protection should not be a 5A due process matter, but rest of the 14A Citizenship Clause.  Thomas does, unlike in his same sex marriage dissent (where he had a long passage sneering at it), recognize equal citizenship has a "dignity" component.

At least, he "tentatively" talks about this. Now, on some level, a broad reading of the Citizenship Clause is not a bad idea (various liberals suggest it), but using (as noted in Legal Twitter) his usual selective history, abhorrence at applying equal protection to benefits, and so forth, the whole result is something of a mess when he does it.  Plus, history and precedent does back an equality aspect to due process of law too.

Gorsuch, in one of his "when the asshole is right, he's right" opinions, concurs to argue the Insular Cases should go.  These were a series of cases from the turn of the 20th Century until around 1920 that held the territories obtained after the Spanish American War can be treated differently than others.  He notes (as does Sotomayor) that it was not requested, so he would not dissent on that ground.  

(A few noted that since Gorsuch's concurrence summarized our racist history, that it might not be able to be taught some places who have problems with critical race theory.  Perhaps, such laws are vague enough to have loopholes for this sort of thing.)  

Anyway, it isn't clear (thought the majority avoided the point), if that alone would do the trick. During oral argument, the federal government argued that it was reasonable to treat states differently for purposes of tax policy if it was rational to do so. And, that is fair, but Sotomayor argues in her dissent (agreeing on the Insular Cases) that it is not shown here.  

The advocate for the claimant here (and it seems if he was granted a waiver, the whole matter could have been avoided) made some open-ended arguments during the oral argument.  He suggested the Guarantee Clause and so forth warranted treating the Territory Clause as not a fully open-ended congressional power.  The assumption was that at some point a territory would become a state or be treated on some sort of equal footing.  

It was a rather broad argument though could be a method of constitutional avoidance mixed in with an argument that Puerto Rico is special too in that it is more powerless (no representation in Congress except for a non-voting delegate).  But, Sotomayor argued even rational basis failed.  

I think the case was hard (see Ian Millhiser again), but would look at the regulation with a questioning eye all things considered. Thus, to use the jargon, at least apply rational basis with teeth.  And, policy-wise, change the rule.  Administratively, give the guy a waiver.  Avoid hard cases when possible.  

It seems like it was possible here.  

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There was also a separate press release announcing an upcoming celebration of Justice John Paul Stevens (who would have been 102 on 4/20) on May 2nd.  Stevens regularly posted speeches on the Supreme Court speech page.  Perhaps, in honor of his open government approach, the release notes the event (which will involve Garland, Stevens' granddaughter, and other notables) will be streamed via the website.  

ETA: I also see a few more online links have been added.

Lessons in Chemistry

I have trouble finding fiction that I enjoy so Lessons in Chemistry is a particularly notable gem. One blurb compares it to The Queen's Gambit, which does have some similarities, including a smart, independent woman who survives hard times. The book also has an unpleasant children's home, if for the boy who grows up to be the love of her life.

The book takes place around 1960 and involves a woman chemist, who ultimately has a t.v. cooking show. She uses the show to teach chemistry and life lessons. The book also has various great characters, some whimsy (especially involving a dog), and a good amount of tragedy. In the end, however, the character has her happy ending.

I saw it in the library and thought it looked interesting. It was very good and was a quick reading 400 pages. The book is being made into a series for some platform. If done right, should be popular. First book for the author and hope she writes another in a few years.

Order Day

The Supreme Court released an order list on Monday that was mostly mundane. The one exception was a dissent from cert by Justice Sotomayor in a death penalty case. I'll wait on that since two executions are scheduled later this week. Mark Joseph Stern (of Slate, sometimes a tad over the top voice) summarized one order on Twitter:

The Supreme Court vacates a lower court decision that had blocked the Trump administration from approving work requirements as a condition of Medicaid coverage. The Biden administration revoked approval, so SCOTUS says the case is moot.

Later on, a separate order (with the three High Federalists dissenting) on the "emergency docket" (shadow docket) -- again thanks to Amy Howe for adding details -- rejected another attempt to put on hold a military vaccine requirement. One thing flagged by Mark and others is that the claims in part make political opposition to the mandate into a religious claim:

I find it difficult to see how a fundamentally partisan hostility toward the COVID vaccine can form the basis of a valid religious objection. But Thomas, Alito, and Gorsuch are the philosopher kings, not me. https://t.co/owrTHhPLOP pic.twitter.com/nn5fggMuMc

— Mark Joseph Stern (@mjs_DC) April 18, 2022

The politically motivated or at least timed nature of the "religious" claim is notable if we still actually care about "sincere" being a check on religious liberty. A law professor once flagged it is. Uh huh. In practice, it has little teeth, mostly applied somewhat ad hoc in patently dubious claims. 

Maybe, this is one such claim, though the district judge (religiously?) seems not to think so. But, I think that is likely a limited guide, especially in these times.  You take what you are offered, but me personally, I think compelling state interest and public interest (such as public accommodations and here the military) should be major factors.  

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Religious faith alone is being used to broadly and the net result are arbitrary lines (see the Hyde Amendment).  This sort of blows into  Taking Back the Constitution: Activist Judges and the Next Age of American Law, which is discussed as part of a symposium on the blog he sometimes post on without (even when the blog had them) allowing comments.   

Most of the book is familiar stuff about how conservative judges operate, including how originalism is a conservative "shibboleth" (one of those fancy words ... turns out the idea is that two ancient tribes were fighting and they said that word differently ... so it's a sort of code word to see who your friends are) and so on.  

The book also seemed almost too optimistic about the limits of judicial power (this was before RBG died but it surely was a possibility to have 6-3 Court, which would change the dynamic).  It did seem to assume abortion rights were on the way out -- even with a 5-4 Court -- though you know, it wasn't seen as HORRIBLE that it would happen.  Guess there is a certain matter of fact about that, but you know, would a woman be so blase?

Still, overall, the first part is useful, if somewhat boring ... since I'm familiar with the whole thing.  The last two chapters were more interesting since they provided some possibilities for progressives in the future.  A basic approach being a sort of popular constitutionalism where the people overall say what the Constitution means.  If "health care is a right," well maybe it darn well should be.  Federal courts aren't god.

The book didn't really cover the next step -- what would happen if courts challenged this?  It suggested that local governments might accept it, which would make it "law" in practice.  The book also suggested some sort of popular constitutional convention.  This would at least put pressure actual governments.  

I saw a discussion on C-SPAN of A Constitution for the Living, regarding a thought experiment of actual conventions happening every twenty years or something (taking Jefferson's idea  of constitutions being for the living and running with it).  Sounds interesting though the library doesn't seem to have it.  Like the idea of fixing the Senate without amendment, this all is a thought experiment, but so was overturning Roe/Casey not that long ago.

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There are a few arguments (they seem like technical issues, but surely, none of these cases have no effect ... well most of them, at least) this week. There is also an opinion day on Thursday.  We will see how that goes as does two scheduled executions. 

Easter TV & Egg Rolls

Faith, Hope & Love was a nice movie on Up TV last night. A few familiar faces popped up in small roles, including (hard to catch until he has a moment later in the film) Michael Richards (from Seinfeld) and Ed Asner (in one of his last films; he pops up in a lot of Hallmark type films as grumpy old men). The movie was from a few years ago, but Richards is 72 (!) today. Doing the math, that works, but it is less blatant for the others who are younger.

The co-star does a good job in her first acting role, known particularly (fittingly given the plot) from her role on a dance program.  The guy behind the film plays a widow who is dealing with losing his wife in a car crash a few years ago.  The actor is a bit rough here and has had mostly small roles back to the 1980s.  

The film overall has Christian overtones, but they aren't overdone.  It is mixed with standard romance t.v. movie vibes, though the woman being a divorcee is a bit irregular in these films.  The film is basically a case study on how to do a film like this.  It has some rough edges, but good pacing overall, and I like the cast as a whole.  Nice to see some familiar faces too.

It shows the widow as someone with strong Christian faith, the woman open to it, but not in a heavy-handed way.  The older daughter being trusted to stay out late for her prom and coming home early when the party got too wild (showing his trust was warranted) is a nice touch of the family dynamics.  

The title is a sort of Bible pun (the Bible loves puns, many biblical names actually puns), since it is not only a familiar Pauline reference, but a mash-up of the name of two of the characters with a toss in.  The name drop comes late in the movie in an amusing way.  

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The Big V has made White House Easter Egg Rolls not a thing the last two years.  A sign of (modified) normalcy is having one this year, reportedly with 30K people (seems a lot) expected.  Of course, there is a theme:

The White House announced today the full program of activities for the 2022 White House Easter Egg Roll, a tradition dating back to 1878.  A teacher for more than 30 years, First Lady Jill Biden created this year’s event theme, “EGGucation!,” with the South Lawn to be transformed into a school community, full of fun educational activities for children to enjoy. 

1878?  Yup, a lot of history there.  I guess as a vegetarian leaning vegan, I am not a big fan of a egg hunt (or roll) with real eggs.  But, they do not here for practical reasons.  Which is good.  Things seem to have gone okay with people allowed to take part in groups.  Wooden eggs were used:

This year’s eggs featured the White House pets and the signatures of the president and the first lady. Each child received a commemorative wooden egg to take home.

Impressive.  

Under the Starry Flag / NY State Politics

I was basically 3/3 in my book selection when I went to the new mid-Manhattan library, Under the Starry Flag: How a Band of Irish Americans Joined the Fenian Revolt and Sparked a crisis over Citizenship providing an interesting and down to earth account. 

History, including constitutional history, is filled with details. An important issue, which is still debated in various respects, is the matter of citizenship. A basic debate there was over race, blacks in particular not seen as fit to be citizens.  But, there was a wider concern there, including the matter of immigrants.  The "Know-Nothing" Party in the 1850s shows this.

This book touches upon that issue while addressing a lot lesser known conflict.  Fenians, Irish nationalists, got mixed here.  The center of the action involves a naturalized Irish immigrant, John Warren.  Along with others, including natural born American citizens, he planned to join an Irish rebellion shortly after the American Civil War.  

It didn't go well though the aftermath included an extended battle on citizenship, including the right to renounce your citizenship and become a citizen of a new country.   This was seen in the times of the Declaration of Independence as a natural right.  But, it was actually quite controversial, with other nations (and some in the U.S. too) rejecting the very idea.  

If you were born a citizen (or more so, a subject) of the United Kingdom, darn if you remained one.  This was a major problem in the days before the War of 1812, causing problems when the British "impressed" people the U.S. deemed American citizens.  And, even if the concept should be accepted, there was a debate over how long it should take. 

There are a lot of issues here as well as the overall central event of a failed invasion, the legal and diplomatic wranglings afterward, and so on.  The book, which includes some good photos, covers this overall well.  It also does so in a little over two hundred pages, which is about how long I like books these days, since I read so much online as well. 

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Talking politics, after mostly thinking the now not so new New York governor is low drama vis-a-vis Cuomo, Gov. Hochul now has an issue.  I don't think it is enough for me not to vote for her in the primary -- overall, I still am glad she is there, and my relief is balanced over my general support for a more liberal platform.  

OTOH, maybe my usual move to vote left in the primary should hold here.  I don't think she is really at risk in the general and the extra push that might be warranted there is not really present.  This thing along with various odds and ends, including involving funding a stadium for the Bills, probably warrants a message vote.

The lieutenant governor, a black pol who she chose largely to get some downstate support [her strength and origins is upstate] was indicted for campaign violations.  He resigned, but as of now, he is still on the ballot.  

There are a few creative ways to deal with that [e.g., his bail conditions might make it impossible for him to be in Albany, but he can stay out of state with family ... that might make him illegible].  One apparently clean way is just to pass a law to do so.  This is in a vacuum a decent idea in this scenario -- why should someone who drops out for legal reasons and is a sort of "dead" candidate, not have this option?  

But, yeah, Republicans are calling foul.  Heck with them.  They had their issues with campaign violators and the like.  This can help them in the future too.  Meanwhile, Ana Maria Archilla seems to be the logical choice for me to choose in the primary, various liberal voices I support or respect generally, pointing her way.  

Supreme Court Watch

The April arguments, the last set of the term, will continue the Big V policy of limited court presence and live audio.

The Supreme Court also submitted to Congress proposals for court procedure, which Congress can accept, deny, or (likely) edit in some fashion. This includes: Rules of Appellate Procedure Rules of Bankruptcy Procedure Rules of Civil Procedure Rules of Criminal Procedure.  Technical stuff, except if the procedures matter to the lawyers involved.

The weekend religious holidays pushed the conference back to Thursday (4/14) with a order dropped providing various bookkeeping type orders for upcoming cases.  There will be an Opinion Day next Thursday, orders on Monday, and two weeks of oral arguments (finishing up the term).

For whatever reason, I came across the "Powell memo," the in some quarters infamous marching orders by Lewis Powell (then not a justice) to big business to control messaging. On some level, there is nothing too corrupt or anything about it; it really is a lesson to any group on how to frame one's argument. Of course, one can dispute the message here.

But, it is a lesson that humans make arguments, and they frame their messages. We should keep this in mind and ensure this is done in an aboveboard way, and not let certain groups dominate the discussion. How to do that is the rub. 

[I originally had this as part of the last entry.  I split the two, adding content to both entries.  Perhaps, we won't have anything new until Monday.]

Adultery: Infidelity and the Law

I recently finally went to the new Mid-Manhattan, which has a different name now, which re-opened last year after being renovated. It looks nice and there is for now no guards to check your bags on the way out. There are guards at the research library across the street.

A smallish book is by Deborah Rhode, who turns out to have been a long term legal ethics expert, who also died last year. This obit has various interesting and at times amusing information about her long and much respected career. One part of her deep life is a skill at amateur photography, including taking pictures of Thurgood Marshall, who she law clerked for. 

Prof. Rhode argued that adultery should not be illegal or generally (except in special circumstances, such as interfering with chain of command in the military) be used for negative results.  The book is not comprehensive (and some Muslims might argue she provides a too narrow view of Shariah law), but does its job pretty well.  

She also includes an argument regarding accepting polygamy, but not recognizing it legally. Showing her reasonable approach, Rhode recognizes that polygamy in action will involve some troubling issues (such as underage "marriages" in some cases), which would have to be addressed.  But, as with other possible concerns, criminality across the board is not the best way to address such things.  A good pragmatic approach.

Ultimately, Rhode notes she personally tells people she opposes adultery. As a whole, the book suggests people still think of adultery as a bad thing, if perhaps likely to exist in some form.  The numbers there seem a bit extreme, especially given how often adultery actually occurs. 

I think ultimately it might not be necessarily always a bad thing (putting aside what amounts to agreed upon behavior, including open marriages, which is sort of separate), especially with special circumstances.  If a person, e.g., has an elderly spouse unable to provide certain sexual outlets, is it really horrible to have an affair?  [Entry expanded.]

But, morality and the law often should be separate. 

Though None Go With Me [and other weekend viewing]

There were various religiously themed movies on Up TV on Palm Sunday including the Mel Gibson Christianity porn film. This one was originally a Hallmark Channel movie.  It is basically an example of how you can have a faith based film that wider audiences can enjoy.  

As usual, "faith based" tends to mean "at least somewhat conservatively Christian/evangelical," but it can also have a more general Christian flavor to it. There are also liberal versions, where the film promotes some sort of message that includes faith and love in some fashion, including faith in basic ideas.  

Amy Grabow (who has by now been in many things, this film from 2006) plays Elizabeth, a young woman in a 1950s small town.  The setting is underlined by the Korean War (which comes into the plot) and various films that is playing at the local movie theater.   

Her mom has died and it seems at some point she got some teaching training.  Her dad is the local doctor.  She falls in love with the new minister though a childhood friend pines for her.  Elizabeth also rocks the red lipstick.  The friend eventually marries her, after taking her in when her father dies (in debt) while the minister is over in Korea.  His death was mistakenly reported, but she was married by the time she found out.

An older Elizabeth (Cheryl Ladd in dubious makeup) is telling this story to her granddaughter (given her luck, yes, her one son and his wife dies when the granddaughter is a baby) before she is going on the road with some dubious band person.  The film is largely about young Elizabeth, but then we skip to see the car crash and Elizabeth dealing with her husband having Alzheimer's.  He eventually dies.  At a celebration of her fifty years helping the church and town, hey, the minister is back. 

The granddaughter eventually comes home, being on the road to California enough to convince her small time life isn't that bad yet.  The title is based on a hymn and the film is based on a book.  The author of the book is something to be desired.  But, focusing on this film, it is pretty good.  This is so even if you do not buy all of the faith stuff. 

The framing pieces are okay as with older Elizabeth (a briefer part of the film), but the best part of the film is with the young Elizabeth, the lead actress key here.  

A Royal Runaway Romance was on over the weekend, one of the first of the new spring love movies.  It was basically a travelogue, a princess falling in love with her bodyguard on the way to a court artist who she thought would be "the one."  I was not paying full attention, but as a whole, it was a pleasant watch.  It probably was best on the road.

(The road trip ended with around 15 minutes left in film, so the usual complication part of the film didn't worry us too long.)  

These royalty themed Hallmark films tend to be about male royals, often at first not known to be royals to the women involved. A few films did involve women (the ones I know are about princesses), generally sticking with the "don't know" part.  This one was not only open (bodyguard) but the princess was eventually going to take over from the queen.  

One film -- the third in a series really -- involved a somewhat bratty prince (open) but the couple eventually had a daughter.  A plot point in the third film (which overall was about the American doctor having the baby) was the rule that only males became heirs to the throne.  

She did some research and that wasn't the literal requirement.  The somewhat traditional based monarch (Mr. Sheffield from The Nanny, who has multiple European royals roles these days) eventually went along.  It was a nice touch.  I saw the first and third film; both were pleasant trifles.

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Nick had an award show on Saturday night as well and Miranda Cosgrove (on two Nick shows) co-hosted.  Nick (as it did with the first episode) offered a regular viewing option to see the season two premiere of the iCarly reboot. Like the first episode, it just felt off, including how Freddy and Carly even look. 

Spencer looks fairly normal (just older, especially since the actor himself is notably older than his character), but didn't really act as his character would have here.  Lewbert (now looking normal and with a law degree) comes back to sue Carly for damages (yeah -- she was a teen back then ... not realistic) and her brother (he had three days of law school and hated it) offers himself as her lawyer.  

He wouldn't do something so stupid (especially given the stakes) on the old show.  Even worse, the whole thing comes off as forced and not funny.  I guess it is popular enough for the platform it is on, being the second season and all.  Still, like various other shows, such as Murphy Brown, the return is dubious. 

Joe's Eclectic Thoughts: Weekend Edition

Book: I saw the author of Smashing Statues: The Rise and Fall of America’s Public Monuments interviewed on C-SPAN, being interested enough to check out the book. (I checked it out of the library.) I read the Sandy Levinson book cited in this capsule review, including an update. I also read another book, talking about Confederate monuments. All three are somewhat of a piece, focused on what one might call "bad monuments."

All three are worthwhile (yeah, the other one slips my mind at the moment) in their own ways. The book here is a bit misleadingly named. The book is largely about Confederate monuments with a bit about others such as the knocking down George III's monument.  But, even in that respect, it isn't really comprehensively about bad ones.  The main focus in about Confederate monuments though there is (to be fair) a chapter on Christopher Columbus.  

[On that subject, there was traditionally not too far from me -- if I went to public high school, I was zoned for it -- a school called Christopher Columbus High School.  We also traditionally had a Christopher Columbus parade down the main block near me.  The school broke into smaller schools.  COVID made the parade not a thing recently.]

I would have liked a more complete book about monuments (celebrations) and memorials (mourning something).  Why not a chapter on some "good" monument, or at least one that has so far met the test of time, such as the Vietnam Veterans Memorial?  Or, something like the Statue of Liberty?  If the book is meant to be about those that are "smashed," even so -- this sort of thing will provide a comparison.  

Still, the chapters on various memorials -- to be fair there are ones on matters other than the Confederate monuments -- and monuments are pretty interesting. One thing of note is her argument that Confederate monuments partially was a way to stop rising labor unrest, especially when it was biracial in nature.  Bits like that adds new details.

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Let's Play Ball! Injury to an ace and another try manager-wise? Check! Still, we have some reason to hope this year is a bit different, with a career manager in place, a stud ace signing, and some good additions. I think two time cheater Cano should have been gone, but early on at least (it is the Nats, the predicted NL East whipping boy) he seems to be a promising addition too, especially with the DH (boo) giving him more playing time.

The first two games of a four game series versus the Nationals already had some drama.  We had deGrom out, so Megill started (well), and then Apple TV (not too well apparently) had the second game.  And, as if that and Scherzer (vs his old team) was not enough, yet another hit by pitch had some drama (we got a bit of video on Twitter for those who wasn't watching).  

The game was delayed twice -- lighting issues and at the end (which could have been avoided perhaps without the first delay) some rain.  Mets 2-0, top of the NL East.  So it begins.  Nice to see GKR back and I listened some on the radio, which has its charms.   And, Howie Rose (cutting back apparently this season after a health scare) is getting pretty good at Twitter, giving the daughter involved in the biz a run for her money.

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Academy Awards: I didn't watch, there was some drama -- as noted -- when Will Smith (who from what I can tell is not a "bad boy" type, but I don't pay much attention) hit Chris Rock for making a joke about her lack of hair (a result of a medical condition).  At the time, the Oscars let him stay, and Smith then came on the stage after winning an award.

That was not ideal.  But, if a tad late, the Oscars has penalized him by banning him from the awards for ten years.  Will Smith himself resigned from the academy, basically meaning he doesn't get a vote.  He can be voted for, since that is a separate matter.  That might confuse a bit, but it makes sense (mostly).  He did not somehow corrupt the acting process or something (such as if a director was caught abusing a cast member).  

I think the thing to do was address the matter in the moment. This is not totally bad though.  For one thing, the tradition is for the Best Actor winner to be a presenter the next year.  So, this sort of thing matters in a message way in that direct fashion.  (It matters more there to the degree his absence is specifically notable.)  

And, often -- though it is unfortunate -- it is hard to do things "in the moment."  Ideally, Will Smith should have left, though just what happened there is subject to conflicting reports in the coverage I saw.  Some talk of him being "asked" to leave, but not too strongly; maybe not?  Unfortunate there was not some more lag time, perhaps before him winning. 

Is ten years the right length?  Maybe a bit much, but you cannot handwave physical violence against presenters.  These things sometimes will include presenters or categories for things that might in some fashion will invite the unhinged to do something.  Plus, violence in general should be strongly rejected.  

And, we are not talking prison time here or something. 

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Border Issues: One thing a repeat ask at Jen Psaki's daily White House press conferences (saw news she is leaving soon, but after a few questions -- which she waived off -- about talks with MSNBC, saw/heard nothing ... though she seems to be highlighting support staff more lately as if in preparation) is Title 42.  A bit of immigrant/COVID inside baseball.

I have not gone into the weeds too much here, but have seen some criticism of the Administration continuing a Trump policy here.  The idea is that there is a health need -- COVID (Big V) -- to be more strict regarding migrants wishing to come in, resulting in over a million (some duplicates, but it is still a big number) being blocked. Better be necessary, right?

The link provides some helpful analysis.  Jen Psaki basically had a mantra that it was a health measure.  But, the article argues that the actual health officials at the CDC never really thought it was necessary.  So, there is some idea that was a makeweight argument.  Now, there are plans to end it, and (shocker here) Republicans (and some others) are worried.

Republicans, of course, are regularly against any number of COVID restrictions.  When it is a border matter, largely involving Latin Americans, suddenly they change their tune.  Repeatedly, health experts are wary about the laissez faire policies of the Republicans in this area.  HERE, we have actual evidence (a recent court case reaffirmed this, though upholding the policy as a matter of law, excepting those at risk of torture or the like) from experts the policy is unnecessary.  

The reactions underline why the Biden Administration is loathe to have a more liberal immigration policy, even to the degree that in various respects would be a good thing.  JUST how much criticism they warrant is far from clear to me, but that sort of real politics reality also should be factored in. 

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Blogger Issue: Twice now, for some reason, Blogger has blocked my  posts.  One, regarding the bike death of a media critics, was shortly thereafter found to be okay.  I didn't closely read the email to see what the alleged issue was.

Another, an earlier version of my latest SCOTUS post was allowed too, after a somewhat longer review.  The first time for some reason "spam" was the problem.  I then posted a short post summarizing it, with "Blogger" in the title and a link to the content policy. THAT was blocked!  

I reposted a new version, taking out a couple embedded tweets and some other formatting.  THAT was allowed.  A recent short Judge Jackson post had an embedded tweet.  I have been doing this since 2003 without one case of having something blocked, including linking to porn.  

I'm unsure why there is an issue here, but it's annoying, in part since there does not seem to be a way for me to simply ask Blogger what the issue here.  There is a "help" page with FAQ material and an option to post questions.  If I'm blocked, I rather have a chance to ask directly.

Supreme Court Watch

Graham and Inhofe voted from the cloakroom on Jackson nomination. They poked their heads out and voted thumbs down. They were not dressed in proper attire for Senate floor, which means wearing ties.

When Judge Ketanji Brown Jackson's confirmation vote occurred yesterday, it was done by voice vote, each senator voting aloud. This was a pretty cool moment as we heard each senator, in varying tones. Sen. Sinema, who we haven't heard much about recently, was notably enthusiastic.

It seemed like Sen. Rand Paul did not vote.  And, yes, he was the one who made people wait for a while (apparently about fifteen minutes):

Sen. Rand Paul (R-Ky.) remained noticeably absent. Once Paul surfaced after roughly 15 minutes, he cast his vote from the cloakroom, as well.

Senators were told ahead of time to be at their seats for this historical vote. So, it was bad enough for Paul to make everyone wait.  He could have, of course, not vote.  Recently, for a lower level position, some Democrat for whatever reason made the Senate wait much longer and in that case it was a 50-50 result.  Not sure the issue there, though that was not great. 

The worse thing, and this is for all three, is that the reason they didn't do so was some tie thing.  Sen. Graham had a tie another time that day. And, of course, if we want to be all "born yesterday" here, someone could have lent them a tie.  For the purpose of making a historical vote, someone could have given Paul a jacket, if necessary.  

The whole thing is a total asshole move on all there of their parts, and people have every right to assume it was intentional.  Sen. Lindsey Graham surely has it in him to be petty.  As to one comment that it is "white," well, the others (minus one) Republican are white.  They managed to vote on the floor.  Some of them are a tad racist.  So, no, it seems more of an asshole move.

There was ceremony with the President and Vice President outside the White House in honor of the confirmation with Justice-Elect Jackson herself giving some remarks.  Powerful moment that I bet the usual suspects would say reaffirms her "critical race theory" vibes.  Everyone can be a bit more blunt now.

There have been some controversy regarding the involvement of the White House in judicial confirmation ceremonies.  I want to draw some lines here. This sort of event is separate from the official swearing in (there are two oaths there) of Supreme Court justices.  That is the official start of their tenure.  It is sensible to not have that at the White House, which is how the last member of the Court handled things.

One more thing that I saw was that Judge Jackson will continue to recuse on the Court of Appeals, pending her final swearing in to the Supreme Court.  She will remain on the court, though I do not know what she will do there.  One useful thing there is that she would get paid. 

 

ETA: Of course, there is more material about "Justice-designate" (or "Justice-Elect")  Ketanji Brown Jackson.  

We have an op-ed about her first name (which in an "African" -- whatever that means -- language basically means "lovely" & so far, including her voice, humor, and more, it fits well).  

There is also a first official photo, which is nice, though the background is a bit weird. The photographer is a young black woman artist from the Bronx (does Sotomayor know her?).  As someone noted on Twitter, it is important (when possible) to give credit when credit is due for official photos. 

Another young black woman photographer (I sense a theme) was behind an iconic photo of her husband (and daughter) looking on with emotion and joy.   One profile page notes: "Most recently, SB received a grant from the Pulitzer Center to continue documenting a story about pregnancy and housing inequality during the coronavirus pandemic."

There is also support for her use of "methodology" to interpret as compared to some fixed single interpretative approach (textualism etc.).  As noted at an ACS page, this is both with precedent and a more appropriate/honest way of doing things.  I am not sure if her answer was complete enough -- it probably will do along with other things -- but some "just so" one is bad too.  Anyway, she genuflected to originalism, if probably in a confused way that was as  much about confirmation protocol.  

One law professor (Liz Sepper, who generously follows me on Twitter) recently noted on Twitter a cab driver asked her about the law.  She asked people to offer something.  I said that applying the law is usually a choice among various options, no matter how much some insist otherwise.  The choice is a human one that in our system depends in a significant part on who controls the nomination process and how they apply it.  

One more thing, for now.  The 53-47 vote avoided the stated possibility that we would need the vice president to break a tie. VP Harris recently did that (again) to move along an executive nominee.  It was done a few times to break tie votes there too.  

The idea it is unconstitutional, as compared to unfortunate policy, is to me silly.  Are you telling me it is clear that a vice president can vote for major policy (including I gather involving the Supreme Court), but not to break a tie for a minor appointment?  You can probably manage some argument here, but text, history, and basic principle/logic makes the idea stupid. 

===

Meanwhile, Justice Thomas (who took part in last week's oral arguments remotely) seems to be feeling better. The fact he is up and about doesn't necessary say he is in perfect health or something. But, it is notable. And, the problems of only limited disclosure of his recent health issues remain. 

Justice Thomas is an honorary board member of an institution that handed out some kind of award.  That sort of thing normally is not really too notable, except that people might wish to know about it.  The difference here is that the honoree is running for an important political office involving the divided Senate, against one of the two people who arguably (at least according to tie-less Graham) is the difference of Jackson even being confirmed.   

Justice Thomas at the moment arguably might be a tad bit more careful about the appearance of impropriety given the issues involving his wife and all that.  Regardless, in this general time and environment, selfies, which easily can be made into political advertisements, with political candidates, especially at that level, to me is questionable.  There have been various other instances of Alito et. al. being at events of a partisan nature.  

I don't think this will make much of a difference, especially in scope, but it does have a sort of gratuitous nature.  On other matters, we might see soon how Justice Thomas acts regarding recusing in 1/6 matters, which ethicists and others have made into a sort of "red line" at this point.  I suppose some "line" might be drawn between the 14A, sec. 3 cases though at some point that gets a tad fine, especially with the texts we have from his wife.  

Think my basic concerns pretty on the money after checking out a few reactions on Twitter. Mark Sherman, a SCOTUS reporter says that it is "Very unusual to see a sitting justice pictured with a candidate for partisan political office."

Fix the Court suggests if it was some lower court judge, who have binding ethics rules, it would violate the current rules regarding avoiding political activity.  The Fox News link I added noted a campaign worker posted the photo.   [Last two paragraphs added; there were other "this is bad" comments from people in the know.]

===

The next scheduled thing is a conference next Friday. Of note too, there are multiple executions (including a dubious one involving a woman) scheduled later this month as well.

Justice-Elect Ketanji Brown-Jackson [53-47]

BREAKING: Senate confirms Ketanji Brown Jackson to Supreme Court in historic 53-47 vote.

Jackson will become first Black woman on the Supreme Court. https://t.co/aZ27lbCV4P pic.twitter.com/zNuyXFrDwU

— NBC News (@NBCNews) April 7, 2022

This is a day of joy, in part thanks to the voters of Georgia, at least according to Sen. Lindsey Graham. He said that a Republican Senate wouldn't have allowed this vote. Breyer's retirement letter said he would step down at the end of the session. This would bring in the third Justice Jackson around the beginning of July. Note the term itself ends the day before the first Monday in October. White men will be a minority. Four women, one black man.

RIP Eric Boehlert

This post (I changed the formatting of a quote) was originally -- first time this ever happened -- blocked for content.  I now received a message that it was "re-evaluated" and okay. 

I listen to the Stephanie Miller Show, a liberal radio show led by basically a comedian, but which has many serious politically minded guests on. The first regular, e.g., is Lee Papa, a local professor also known as "Rude Pundit" for his crude, but largely on the money, political analysis. He looks like a hobo and talks like a sailor, but deep down comes off as a sweet guy.

Fucking hell. Eric Boehlert wasn't a close friend or anything, but we talked a number of times, often about music we loved. And his writing on the Clinton and early Bush years inspired me to join in this rhetorical fight. He was killed riding his bike today. Goddamnit.

— The Rude Pundit (@rudepundit) April 6, 2022

He was one of many (on and off the "Steph gang") who wrote distraught and touching comments about the death of the person who comes after him each Monday on the show. Eric Boehlert was a media critic, particularly upset about how the media furthered anti-liberal frames.  Boehlert came off as a nice guy, who I thought at times was a bit too one note on message. I basically only listened, not reading his stuff.  But, he backed it up. 

Pearls Before Swine had a comic about the too personal nature of social media, where people talk about the death of pets [horrible day for Stephanie Miller -- one of her dogs died, which was why Carol Burnett's daughter [Jodie Hamilton] -- her usual Tuesday guest and sometime fill-in -- was on today & then after the show, she finds out about this]  and so forth.  And, we basically have all this personal stuff about strangers thrown at us.

It is part of why social media, including Twitter, is so addictive. I am not a fan of reality programming, but can see the same thing happening there.  You basically get engaged into something, and it feels personal.  It is in a fashion though it still is not your life.  That allows, though sometimes not so much, a certain distance.  So, that might allow you to enjoy things too, since if it was a family member, it would be too much.

And, though there are other people that I feel more attached to online -- such as people I regularly engage with on Twitter -- Eric Boehlert did seem like a little part of my life in a fashion.  Also, he is important indirectly, since he plays a bigger role in the lives of people like Stephanie Miller, who I have been listening/watching (there being an online feed) for years now.  Plus, you can read all the responses, some (including Rude)  even providing some audio.  

I reckon tomorrow morning on the show will be emotional as well.  Miller after all already has a dog issue (she lost a dog she had for a long time not too long ago; this one was much younger).  And, Eric Boehlert was sudden too, a victim of a bike accident (Miller is a big bike rider), some sort of freak thing (details unclear so far as I can tell now) involving him being hit by a train (NJ line) while riding his bike.  Trains do sometimes go on street level, but that just seems strange.  Probably a freak accident.  

The whole thing is a bit strange. The accident happened Monday night, first reported Tuesday as someone being hit without a name.  Perhaps, there was some problem with identification.  And, then the family had to deal with their grief before telling outsiders.  EB was on the show Monday.  It was his last media appearance.  But, his death only came out Wednesday afternoon.  The article linked has this nice bit:

In front of their Montclair Ave. house, a large stuffed bear sits on a swing, something Breslin said her husband put out on occasion for the neighborhood children, until it became a fixture during the pandemic. "He just loved children and loved to make them happy," she said.

Eric Boehlert is beloved both as a person and for years (I might have saw Lapdogs: How the Press Rolled Over for Bush, this blog starting during the early Bush years) as a strong liberal minded media critic.  I have long been on that beat as a sort of hobby and hobbyhorse, but there are people who go the extra mile and do it professionally (at times, also managing to do other things).  

Such people are much appreciated for promoting truth and the preferred American way.  And, doing it so while being a nice person. I can tell you, being a nice person is not that easy.  #RIP 

SCOTUS Watch

This is pretty modest; a plaintiff in a malicious prosecution case must still show that the prosecution ended in a "favorable termination." What the Court holds today is that "favorable termination" = no conviction, rather than some affirmative proof of the plaintiff's innocence.

— Steve Vladeck (@steve_vladeck) April 4, 2022

Before a bit of a break until next week's conference, we had an Order List and a single opinion.  Good time for Kimberly Robinson, Supreme Court reporter, to take a family vacation.   

A photo she tweeted.  The Order List was short and dull.  The opinion is mainly notable as Kavanaugh's first signed opinion (it is somewhat likely he wrote at least one per curiam) of the term.  

The opinion regards a technical requirement necessary to bring a Fourth Amendment claim. [ETA Mark Stern suggests it is "great," but I think this is one of those cases where he is a bit too enthusiastic.  Maybe, I'm wrong, but SCOTUSBlog and the legal tweets I saw don't seem overly impressed by it.  It seems to be a limited, if worthwhile, win.] 

Alito for Thomas/Gorsuch dissented, starting with a pretentious Homer reference.  I thought it was atypical, but again adding this bit, I later saw  reference to other related stuff by Alito.  Guess he has his moments. 

The Senate Judiciary Committee voted on Ketanji Brown-Jackson and a few other lower court judges.  Sen. "Drama Queen" Graham let the cat out of the bag and suggested the Republicans wouldn't have had a hearing for her if they were in power.  He claimed that it would have accepted Michelle Childs, the option from South Carolina who is somewhat less liberal.  

Yeah.  Anyway, this just shows that the Republicans are simply not legitimate actors here, and we can bluntly say this even as people like Booker can sweet talk Sasse and Tillis for not being as much total assholes as the rest.  The final vote for KBJ was 11-11 though it wasn't equally split in the Senate Judiciary Committee for every lower court judge voted on.

KBJ's final confirmation vote should be later this month.

A "discharge" motion voted upon early in the evening. Murkowski and Romney -- who opposed her for court of appeals, a reverse Lindsey Graham -- announced their support and joined Collins and the Dems to bring her to the floor, 53-47. 

 ====

Meanwhile, I read the graphic (very good) version of Fault Lines in the Constitution.  My only real complaint is that -- even if you want to focus (like Sandford Levinson does) on the "structure" provisions of the Constitution, why not have a chapter on the Supreme Court? It was touched upon, but really deserved an independent chapter.

There is also a non-graphic novel version.  Graphic novels provide a useful and creative resource to educate and entertain.  

====

ETA: I was checking the Supreme Court website on Wednesday morning, not expecting anything, and saw an opinion by Kagan dated 4/6.  Wait.  Yeah, right, it's on the "opinions related to orders" page, one of those cases where that is the only place you find out about things, nothing on the main "Orders Page."  It is even a little extra level of "inside baseball."

An opinion on that page means it is not an opinion of the court. It often is one of those opinions/statements justices added to the Order List or a few times some other time (such as Sotomayor flagging a problem, but not quite dissent time, in an execution case).  These things sometimes are interesting remarks of individual justices' feelings.

It also means there was some order and someone concurred or dissented separately.  The order itself is often (like today) a bald statement of what they decided (here granting a stay, continuing a Trump regulation of the Clean Water Act, which removed some power from states and tribes to hold up development programs.  Basically, federalism lost in favor of special interests.  The regulation also interfered with 50 years of policy.

This resulted in litigation and one side wanted a lower court opinion to be stayed as it went on, which in theory is a difficulty matter (consider SB8/Texas abortion  litigation).  More blatantly than usual, five members of SCOTUS dropped an order granting it this morning.  They could have did this on Monday, when people were paying attention.  For some reason, they did it now.  

No explanation.  Not signed.  Kagan called them out, noting by now that is obvious that the so-called "emergency" docket isn't for emergencies. That docket is also called the "shadow" docket, but conservatives on the Court don't like that term, since (though a conservative leaning law professor, Will Baude, first dropped it years back) it implies they are hiding something. But, Chief Justice Roberts joined the liberals this time.  

Kagan (and Breyer) knows how to broaden appeals. They leave the barnburners to Sotomayor.  The order is thus a rather gratuitous 5-4 opinion, suggesting (to quote a favored meme of Strict Scrutiny Podcast) the conservatives fail the so-called "marshmallow test."  That is the idea that people want instant gratification, even if waiting a bit will get them more marshmallows.  Roberts is for the "long game." 

Amusingly -- in a fashion -- Amy Coney Barrett just gave a speech (of course -- neither side do this, and it's wrong -- a transcript or video is not readily available, though we get a few quotes from Politico articles and such) at the (sure) Ronald Reagan Presidential Library Foundation (come on, how on brand can you be?) fighting the idea they are just politicians in robes.  Just "read the opinion," she suggested.  Or, the lack of one.

In a rather timely bit of scheduling, Sen. Sheldon "dark money controlling judiciary nominations" Whitehouse and a few others had a press conference shortly before noon to promote their ethics bill. Whitehouse noted the importance for disclosure to know the powers that be involved. The opinion was so new that it was not referenced, though his Twitter account cited it later in the day.

This order just pissed me off (I was annoyed for another reason anyway) and it is hard to move on (at least at the moment) when they keep on hitting you with things (this again is the case for me personally on another matter that I won't go into).  The Barrett Court cannot just screw over us with the law.  They have to do it in a particularly shitty way.

Desperately Seeking Susan

This film was on cable and I was able to get it free on demand. I'm not quite sure if I actually saw this in the movies (would have been around 15), but did see it the first time quite some time back. 

Fun movie. The movie's charms greatly comes from its stars (Madonna is good in film when she sticks to her strength try to get deep) and sense of place. It takes a bit of time to get into the groove of the story. Still, even that is enjoyable, since you get some of the two lead actresses. 

Likewise, the plot has a few standard silly devices (you need basically a "McGuffin" for the bad guy to be after) mixed in.  But, darn there are some good performances, including familiar faces in smaller roles such as Steven Wright (the wry comedian) as a dentist! And, it all put together in a fun way, and doesn't seem to go on too long.  This takes talent.

Susan Seidelman is the writer/director and first came to the public's attention in a more "underground" film entitled Smithereens. I have not seen the movie, but looking at a description, the lead seems a bit like Susan.  Plus, the person "desperately seeking her" (other than the bored housewife) is actually himself in a band.  Showing the time period, Aidan Quinn works at a cheap movie theater as a projectionist.  Remember?

Desperately Seeking Susan was Susan (ha) Seidelman's first "big" picture as well as Madonna's first (after a cheapie).  She went on to make various films that I have seen including Making Mr. Right (woman and a male robot) and Cookie (gangster comedy with Peter Falk).  Each are quirk films with some familiar faces, but not really big star figures.  Gaudi Afternoon also looks interesting; I will check out the book it's based on.  

[I saw Cookie after writing this.  I think I saw it before though don't remember it. A major mark in its favor is that I again was able to watch the whole thing straight thru in one sitting, something I find harder these days.

The film was enjoyable, her mom especially put in a great performance, and nice to see a late career Jerry Lewis in a good supporting role.  But, there was really less of  an enjoyable whole effort here.  Still, it was all well put together in various ways, showing the strengths of the director.] 

She also did some television, including directing a few episodes of Sex in the City (which I watched some the first time around) and  The Electric Company (I never really watched education children's programming; not a Sesame Street kid).  Some of her work (including Gaudi Afternoon) deals with GLBT issues, including one film with "competitive wheelchair ballroom dancing."  

Desperately Seeking Susan was the sort of somewhat wish fulfillment fantasy ("Susan" is tossed in an alternative lifestyle that is not exactly wondrous -- she finds a job at some low rent nightclub, but it does look pretty fun, especially if you have a hot guy), well put together film that I enjoyed watching in a theater.  

You can enjoy such things at home, but you lose something in the process.  And, like the Academy Awards with all those awards, even if people often don't care about technicals [more are being crowded off the main event], shows just what a movie involves.  Good acting, good supporting cast, writing, editing, music, and all the rest.  The film felt right basically all around.  

(For instance, the role of Susan's somewhat ordinary looking friend, Crystal, was played by Anna Thomson. She was very good in a small role. She popped up in Tune in Tomorrow, another fun movie.)

===

I need some fresh material for later nite viewing, if only syndicated material.  Still, there is pleasure in watching some of the old favorites, like iCarly (catch some scenes I don't remember from the first time around).  

Miranda Cosgrove on that show was the sort of person you could pine for as a teenager without her seeming too unreachable.  She also is very cute being embarrassed about certain things.  The others on that show are good too with a lot of energy.  "Sam" eventually noted that the whole thing was not a great experience, especially burnt out when the spin-off filmed a lot of episodes in a short period of time. 

Since she is almost 30 now, me talking about that is not skeevy at all.  Seriously, adults are allowed to cite clear aspects of such characters though actually pining for them is best left for adults.  Time moves on. Now the actress who played Monica on Friends is older (though she is older than the character anyhow) than her older boyfriend (around 50) was at the time. 

And, look at Mary Chapin Carpenter here in 1991.  How long ago?!

ETA:  I saw a bit of So Undercover, with a spunky/sarcastic Miley Cyrus going undercover as a sorority sister.  Various familiar faces, including now repeat Hallmark movie player Autumn Reeser in a small role.  Aimed for teen fans of her t.v. series and such, probably, the bit I saw of it seemed pretty painless. 

Jacob deGrom

Last weekend, on MeTV, I saw the wedding episode of Petticoat Junction. It started with a cute, funny, and touching bit involving the bride winding up with multiple wedding dresses. Notably, I didn't hear an "obey" in the vows. But, then that is old news.

Checking the paper, I see April began with the usual Mets news. Yes. It's injury time! A few players had issues and more than one member of the rotation might start slow. But, all looked pretty well there. April Fools! Update: Ha ha ha.

The assumed Opening Day Starter -- even as late as yesterday maybe -- is now said to perhaps due to be out for into May. Yes, deGrom, who we were assured was okay early last season (stop being a naysayer!) but suddenly had issues and ended his season early, is hurt again! Shocker! Hey, there is another wild card. Second place (or something) here we come!

SCOTUS Watch

I covered the one signed opinion handed down in my piece on Breyer's book. There will be one or more opinions handed down Monday. Also, there was an notice that: "The Supreme Court of the United States today announced that it will entertain public comment on proposed revisions to its Rules."

No conference scheduled next week. A bit of a break until the next conference (4/14) and then orders and more oral arguments. Jackson (Collins' confirmed, providing a likely 51st vote) should be confirmed sometime this month. She will step in after the end of the term. So around the beginning of July. 

It is approaching 9PM, and it does not seem like there are any Friday orders or some other late day shadow docket matter being handled.  Knock on wood.  We await further developments on the Thomas family etc.  BTW, I saw a bit more content on the online sources cited page. 

On the blog list, there are three blogs that I contribute to (books, symbols, and various teaching materials).  Two at least -- not symbols really -- have various Supreme Court related material.  For instance, there is a book review regarding Marbury v. Madison and other matters.  It looks like there will be more material that provide a sort of mock oral argument of key cases. [I'm not exactly sure where this will be.]

Just doing my part on the Breyer project of civic engagement. 

In the News: Deborah Lipstadt / Transgender Issues

After delays largely because she was mean to Ron Johnson, Deborah Lipstadt was confirmed via voice vote as special envoy to Monitor and Combat Anti-Semitism.

Lipstadt to me is but one of many executive nominated officials who should either not be subject to confirmation vote or done so by a quick streamline process. Too much time -- months upon months -- is being spent voting for lower level positions. If it is just going to wind up like this, it is even more ridiculous. I support the cutback on debate on district judges put forth by the Senate Republicans when they were in control.

Lipstadt, who surely isn't somehow off the reservation (this might be non-PC to say) on antisemitism, called out Sen. Johnson for being too pro-white nationalist or such. You know, telling the truth. I read some things by her and saw her portrayed by Rachel Weisz in the movie version of her British libel suit against a Holocaust denier.  (His sort might rather be called a "belittler," since they tend to belittle the breadth of the Holocaust.)

I see that the Trump Administration was not that gung ho about the position. One article cited by Wikipedia noted:

Secretary of State Rex Tillerson isn't sure the State Department should have a special envoy to monitor and combat anti-Semitism, with concerns the role could actually take attention away from efforts to combat anti-Semitism.

Bloomberg reported in late February that the White House was considering eliminating the envoy, as well as positions dedicated to issues such as climate change and Muslim communities.

Upon bipartisan opposition, they eventually found someone.  Trump was rather pro-Israel -- the leadership there being Trumpian -- but as compared to the other two, this very well might have been a power thing.  Anyway, those types aren't very pro-State Department in general.  

==

Meanwhile, yesterday was "Transgender Day of Visibility," and the Biden Administration not only honored trans people, but reminded people of the actions the Administration do to serve that community.  This includes the HHS noting the multiple health care needs and both HHS and the Justice Department noting that it is illegal to discrimination against them. 

Both matter has trans people are used as targets by the usual suspects (including during the Jackson Supreme Court Hearings) and states.  The latest (signed not quite on the same day as Transgender Day of Visibility) is the so-called "Don't Say Gay" law out of Florida. And, there are various laws targeting trans athletes, another hot button target. A few years ago, and probably some places today still, "bathroom bills" were popular.

As noted here, as the laws goes through the courts, a key issue is all the anti-gay judges Trump put there.  Clearly not partisan/ideological in nature. Don't want to make Breyer cry.  And, to be clear, trans is just low hanging fruit.  People have noted that same sex marriage and other gay and lesbian issues are still major partisan disputes. Gender issues as a whole (and abortion very well fits here) continue to dominate.  

One might think in 2022 we would be further along -- even trans issues have already been around for years now; apparently not.  

===

My state senator, Sen. Alessandra Biaggi, is running of a House district neighboring me.  But, for the rest of the year, we will have information about the cutely labeled "Biaggi Bills."  

One, as I noted in the past, would provide a one-off for secular wedding officiants.  It passed the Senate again though it has already been blocked in the assembly already.  I myself have split feelings about this bill, thinking it probably a good opportunity, but wishing the law was changed more.  

The usual approach is for people to self-ordain via an Internet ministry.  This would in theory mean they were no longer a "lay individual" though various people, and at least some time back a mid-level New York court, basically disagree.  They don't take it seriously as a "religious" minister, including by the somewhat unclear language of state law. 

This is generally relevant to the last news issue since people often used Universal Life Ministers etc. as a means to preside over same sex weddings.  Generally, there is an understanding that people should have a way to express themselves here following their own personal beliefs.  The law already partially reflects this by making a limited exception for certain ethical societies and as I recall Quakers (who self-marry). 

The Biaggi Bill is a limited mechanism here and does not really to my understanding clarify that dispute.  It specifically just provides a limited, if clear, means for "lay" marriages.  To the degree this helps provide people do something that has shown to be popular over the years, I support it.  

You at times have to do the best you can to move the needle. On that, Breyer is correct.  Sometimes, partial victories are worth the candle.

Breyer's Myth: "The Authority of the Court and the Perils of Politics"

Joan Biskupic has an analysis (noting editors often apply headlines) entitled "John Roberts can’t do anything about Clarence Thomas." 

I would argue that his end of the year report for the judiciary "did" something; it increased the idea that the "need for independence" requires "a sound structure for self-governance" [noting Congress did help by setting forth certain administrative procedures for them to use]. In other words, "trust us." 

This gave Thomas more power. One court analyst basically also argues Thomas is "untouchable," providing more details on his power and influence.  Meanwhile, (after a press releasing saying he would be out of the hospital probably after a few days; he was not) we have vague ideas about his health, including as he took part remotely this week.

Justice Breyer agrees his friend (they often were seen as chummy when they sat next to other on the bench) should basically be untouchable.  We should not assume the "perception of political influence among justices" and "structural alteration" based on that is not only ill-advised, it threatens the rule of law.

When we hear the word "myth," what often comes to mind is things like battles of Greek and Roman gods or something like Adam and Eve.  We sometimes use it to speak of "patriotic myths" or the like.  This flows into my usage here.  The term doesn't mean mere fantasy.  Myths can often tell us some real things about how things originated or work.  One definition: 

a usually traditional story of ostensibly historical events that serves to unfold part of the world view of a people or explain a practice, belief, or natural phenomenon.

Let us focus on the specific "book," which received some ridicule while people were pushing Breyer to resign.  The "book" is actually a form of a lecture (originally a presentation in France entitled "The Supreme Court: Power and Counter-Power," but you know COVID, so he gave it at Harvard).  In his Author's Note, he says it is his personal and professional resposne to the "recent disagreements over the nature and future of the Court."  

I think he should have avoided that angle.  The book has some interesting aspects (if even there somewhat questionable at times).  When he directly cites ongoing controversies, it is a real problem.  Logically enough, since they are now his colleagues, Breyer doesn't address the controversies of the last three nominations.  [This was published in 2021.]  But, that is simply playing unfair.  They are a basic aspect of the dispute.

This is a major problem, but Breyer (and critics flagged this) is selective even beyond that.  The importance of "rule of law" is readily accepted.  We can also, though it is somewhat more controversial, grant the importance of judicial review.  But, there are a range of ways to handle this.  You do not need life tenure. We can have constitutional courts with less jurisdiction. We can have larger courts.  We can have greater means of overturning constitutional rulings.  And, so forth.  These are not cited AT ALL.

Breyer after all clearly supporters what is known as a "legislative veto" to handle the necessities of the modern administrative state. Given his druthers, he would allow it, and he would not deem it as a threat to separation of powers.  Ditto line item veto and a greater role for the federal government to regulate what is now seen as threats to federalism. 

Many reforms similarly do not merely think judges are "politicians in robes."  They accept the rule of law and so forth.  But, history has shown that the nomination process has been tainted. That judges cannot just be trusted to self-restrain.  He cites things like "clarity," "deliberation," and "just do the job."  How about the shadow docket, already much more of a thing as he gave the lecture even more now?  How about handing down orders that executions can go on without comment. Clarity?

[Update: A case is "DIGGED" if it is dismissed as improvidentially granted.  This generally comes up if some technical issue arises that makes it not useful to decide reason it was taken.  

So, if a case is taken to settle a a certain question and it turns out the facts of the case means the case isn't appropriate to deal with it, SCOTUS might DIG a case. This sometimes comes up at oral argument.  

A basic concern, such as with the federal government lawsuit in the SB8 case, is when SCOTUS does say why they decided the matter was DIG worthy.  I by chance found an old case that was DIGGED, and though it's tricky since two justices dissented (leading Harlan to as well), it shows how you can in a brief statement explain a DIG.  

If "clarity" is the answer, you should to that.  Breyer, however, doesn't face up to real life here so comes off as a naive idiot.]

The lecture begins with the important of the "perception that the state is just" as a means of obedience of the law.  The other options are fear and hope of rewards and punishments.  He notes the Supreme Court has less power to do the last two (the proverbial absence of purse or sword).  So, it needs to act justly.  But, not only that. There has to be that "perception" of it.  And, the controversy and push for reform threatens that.

I respect the need of the courts to act correctly and cautiously.  Breyer has provided various advice in that department, including compromise and careful deliberation.  He has also promoted each citizen to have a role, including education, public participation, and practice (cooperation and compromise being key here; he doesn't note it, but consider the need of unanimity on a jury).  

This is all fine.  And, Breyer argues the reach of judicial power is limited. Statutory and agency decisions can be handled in a range of ways.  Constitutional opinions also are limited (and one should aim to make it so), including leaving other ways to advance the same policy.  To give one example, U.S. v. Lopez struck down a federal law involving guns near schools, but left open a means to do much the same thing in a different way.

This sort of thing is somewhat exaggerated.  First, it takes time to do these things, and presidents -- unlike justices -- do not have life tenure. Second, it can be hard to pass legislative fixes, especially with new party control and filibusters.  Third, and this goes also to his examples where the Supreme Court does not simply in a "liberal" or "conservative" way matching its personnel [multiple examples were 5-4] too, there is a limit to the limits.

Breyer likes to avoid admitting that justices have different views that can match political labels, though admitting certain experiences and the like will influence judges.*  At some point, this simply avoids reality.  Toss in the justices failing to do the job, including the clarity and so forth Breyer promotes, we have a problem. 

A valid statement is that it is not a 1:1 ratio and there tends to be swing justices and justices who judicial views for various reasons on certain issues do not overlap.  People do sloppily and ignorantly miss the nuance there, surprised when Kavanaugh, let's say, seems to do something reasonable.  But, the current 6-3 Court, a result of problematic political moves over the years (a bit of "luck" for the conservatives in 2016, deaths, and electoral college/Senate issues), skewers even that to a significant extent.  

Breyer cites his usual judicial moments, each with a bit of spin. Interesting how Chief Justice Marshall in Marbury "found a brilliant way out" as if he was doing some crafting politics as compared to merely applying the law.  His favorite moment is obviously Brown v. Board of Education though even there he grants the courts carefully handled racial equality to protect court power in the face of opposition.  When does that become "political"?

The "powerless opinion" involving the Cherokees is cited. This skips over an important detail -- Georgia repealed the law in question, not bringing the opinion to a head.  And, the "trail of tears" was not done by raw force alone. The federal government found a means to sign a treaty with the Cherokees, or at least enough of them for it to look legitimate.  

Critics will point to the various conservative and justice resistant aspects of the history of the Supreme Court as a whole. Breyer can provide the high points and grant there were some low lights, suggesting really though they were unfortunate exceptions.  Clearly, as a whole, he thinks the Court played a positive role [as a judge and justice for over thirty years, one is not surprised].  I don't know the appropriate answer to that general question.

If Breyer wants "trust" in the Supreme Court, the institution has to do a better job.  And, trust is not something that only arises from self-restraint. Our system has three basic branches and public institutions that in various ways check and balance each other.  To do so, we need full knowledge and clarity of what is happening. This book does not provide that.  

The system also provides means for each part to limit the other. Breyer might want to ignore that "political influence" very well has skewered the Court so much that we need to fix it.  I think "political influence among the justices" does exist too.  But, you know, that isn't even necessary to warrant change here.  

If a "justice" is put on the Court because it is deemed inappropriate to even grant a compromise choice a hearing and then another is shoved on the Court as the voting for Biden is taking place -- in rank violation of the so-called "principle" used before, the trust in the Court is RIGHTLY going to be reduced.  If you are concerned about that, doing nothing but putting trust in the Court -- a trust that continues not to be shown to be worth much -- is a bullshit, ostrich approach that warrants the scorn many have for it.  

I personally think expansion is warranted since the Court already was basically "packed" just like you do not need a formal filibuster to do that to a nominee.  Prof. Victoria Nourse, who would provide an intelligent, challenging approach to statutory interpretation and other issues, was filibustered.  There was not a Senate-wide vote to block her nomination vote, but "blue slips" and other means will do it is all the same. And, as a result, the ideological balance of the Seventh Circuit changed.

There are also other reforms necessary and some might be useful.  They are not covered at all in this account though Breyer has voiced acceptance (at least at times) for something like term limits.  These things will not threaten the rule of law or judicial review as a whole. If anything, as changes in federalism, voting, and so on, it might improve it.  

After all, in one of his books, Breyer specifically addresses the role of international law.  He has regularly respected the practices of other countries as a means to provide insights.  Well, they do things differently than us regarding constitutional review without the "rule of law" being threatened.  I also recommend his book Active Liberty, which provides insights on his judicial philosophy.  

This "book" is more problematic.  It has some good stuff in it.  The appeal for citizen engagement is very important.  But, it also has too much myth, and a rather skewered version at that.  I'm ready for his replacement.

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* The one opinion that was handed down this week is right in his wheelhouse, since it split 8-1, with Kagan writing in the majority and Breyer with a solo dissent.  Just goes to show the justices do not split by usual ideological lines, right?  Plus, the matter involves a technical jurisdiction question that seems safely non-partisan.

Breyer uses the opinion to state his vision though as is often the case, one wonders how much it really determined the result:

When interpreting a statute, it is often helpful to consider not simply the statute’s literal words, but also the statute’s purposes and the likely consequences of our interpretation. Otherwise, we risk adopting an interpretation that, even if consistent with text, creates unnecessary complexity and confusion. That, I fear, is what the majority’s interpretation here will do. I consequently dissent. 

I think this is true as a whole and the Court's recent trend in support of "textualism" in practice can be a "just so" story where the justices split on what the text means.  Ultimately, other things will factor in.  

Breyer is correct that justices use a variety of techniques.  His honesty about the choices made make it depressing he cannot not be fully honest.  But, we do lie to ourselves as much as we lie to others.  No April Fools there. 

Kagan  takes some potshots at the dissent, including the "dissent’s vaunted practical “advantages” also mostly concern avoiding those diversity issues" and the "dissent’s gloomy predictions."  Hey! Breyer says he is an optimist.