SCOTUS Watch

Odds and Ends: Justice Jackson is settling in (not yet assigned a circuit, the assignments made the morning of her noon swearing in). The only apparent thing (other than Kavanaugh needing to go out the back door to avoid protestors at a restaurant) that happened is a couple typos were corrected in opinions. I dropped a line in the comment box, so to speak, but the calendar is not updated to include summer orders. 

Death Penalty: Ramiro Gonzales was due to be executed by Texas this week.  He wanted to donate organs and there was some reason why that was blocked.  A lower court case also ordered certain religious accommodations to be made. An attempt was made to get a commutation.  But, in the end, the Texas courts held up his execution for the time being. This underlines that even in Texas, there have been very few executions in recent days.  There is still another execution scheduled later this month.

Dobbs: Going back to Kavanaugh, there has been continual news on abortion, including a controversy involving a ten year old rape victim. A major thing was multiple actions (adding to the Administration's statements) from the Biden Administration.  The argument "nothing" was done or that he "finally" did things here is basically a slander.  

You can argue he could do more (though I have my doubts how useful it would have been), but this general framing is a united whole of "Biden is weak" (we are even talking about 2024 elections, when we have November to worry about).  It is both wrong and horrible on a strategic level.  

Chad Meredith: There is also a continual focus (with Biden sometimes attacked in vehement ways) about some "deal" that apparently (the details are hazy) are being considered with McConnell involving an anti-abortion district court judge.  Again, the details are hazy.  Some say it is about U.S. attorneys.  

But, that is far from clear.  It very well might be about helping to confirm judges overall.  I realize it looks bad (abortion? why are we making deals with that guy?) and it's fine for the chair of the Judiciary (Durbin) and others to want answers.  It is just naive to be too mad about Biden not wanting to talk about internal conversations here.  

Bottom line, it an asinine concern on some basic level.  The Senate still has to confirm the guy.  It doesn't have to be put to a vote and meanwhile more judicial nominees were dropped.  Yes.  There are a lot of people in the queue here.  Why don't we focus on getting them confirmed right away, especially if (as some seem to grant as a given) you think Democrats will lose control of the Senate by January?  That is where the focus should be, including summer recesses (I saw something about August as a whole) delaying things.  Dale Ho is one major name still pending.  

The Supreme Court is a travesty now, but lower courts will remain very important with even district court judges have a lot of power. So, we need to confirm as many judges as possible.  That is not hazy at all.  

[I now see the latest is that ... get this ... RAND PAUL's opposition for now has put a kibosh the the deal.  Again, we are told "no deal" just a "personal favor," but suddenly we are supposed to take this at face value and get all upset at Biden being all buddy-buddy? Sure.  I won't link it, but a usual suspect also read this as "oh Biden is a loser again." 

Who knows the full truth, but note one tidbit that the nomination would be tied to a conservative judge taking senior status. The sixty-six year old judge, however, likely only would do so if she knew a conservative would replace her.  The net there is basically getting a youngster, but she is young enough to stick around for quite some time. Again, a whole lot of nothing.]

10 Things SCOTUS Can Do Now: Fix the Court (the "term limits are practical" people) has a list that is mostly sensible.  

I would be somewhat surprised if SCOTUS stops live audio though I personally do not find it that much of a big deal if you had to wait a bit to hear audio.  The lack of opinion announcements (even the ones pre-COVID in the 2019 Term isn't at Oyez.com) is bad and that is fairly likely to happen.  Figure the fence will go eventually and the leak investigation will peter out, if it already has not.  

Drafting an ethics code is something that should be done though if they wanted to do so, they would have by now. Basically, what should happen is Congress should do that (toss in a few bits about Sotomayor not totally disclosing and kick RBG while she's dead a bit much about talking about Trump, if you want).  We already have some financial disclosure but being more complete can be a fairly mild "see we are doing something."

The Supreme Court History Board thing is a bit of inside baseball, but it's fine to toss that out.  Good luck though with the current membership of the Court.  I would say the same thing about fixing (which would require major re-writing) of the abortion and gun rulings.  The more pinprick thing was to grant the fix recently asked of an opinion, one which they somehow rejected without any comment, even though the government accepted it.

I have long thought they should post -- take advantage of that page on the website -- their speeches online; toss in video.  Also, when the Court's press office provides statements to the media, it should also be posted on the press release page as a rule. Repeatedly, this is not done, and we get reports of what the PIO (public information office) said only in media accounts.

[Maybe, Justice Jackson at least will take advantage of the speech transcript page, which in recent years was only used by RBG and Stevens.]

As to the last bit, I guess I see some value in justices not having official party affiliations.  And, the press release there notes that it is actually hard to find out the affiliations of many of the justices.  I am not excited that Thomas or any of them really -- given all else they are doing -- might not be a registered Republican.  

There are a range of things (the idea by Fix the Court that each side should show up at different types of ideological events is fine; have Sotomayor show up at the Federalist Society) that can be done.  Roberts is able to hide his party affiliation, apparently for security reasons (not sure why).  I am not aware of that route being possible in various places, including New York.  

And, if you do not have a party affiliation, here and other places, you cannot vote in the party primaries, and that is often where the action happens.  If there are about five Republicans in the City Council, if you are a Republican, being able only to vote in November is not that helpful.  So, in that respect, no party affiliation can strip justices (for little effect) of a key aspect of their right to vote.  

Anyway, I think the suggestions are as a whole (especially 1-4 and 7) are good ones.  I also want at least a transcript of opinion announcements. The video of Jackson's swearing (along with the video of the Stevens 100th anniversary event) was a good start on openness.  I do not expect it from them, but we should have video as a whole, like so many other courts. 

==

Okay, looks like nothing new happened.

Some Freethinking Thoughts

There are a ton of weekly or semi-regular podcasts and I only listen to a few. I have watched/listened to Gay USA for over fifteen years. Strict Scrutiny Podcast provides Supreme Court analysis. I listened to a few discussions from both SCOTUSBlog and High School SCOTUS. 

And, Freedom From Religion Foundation has one too. I can go on, but will not. My discussion here is focused on FFRF. The most recent podcast on Free Thought Radio had two extended clips from an actress talking about giving a secular invocation [the local government then stopped having invocations!] and involving a lawsuit where you had to swear to God to register to vote.  

The updated form still includes the wording, but it also has a box that allows registrants to opt out of the religious portion of the oath "because of a sincerely held belief." Applicants still must "swear or affirm" to requirements including being a U.S. citizen; being eligible to vote; and not being affiliated with groups that advocate the overthrow of the government.

An article summarizes the case.  The opt-out is tricky since it provides a way to avoid controversy in more than one way. Some people would be against the oath because their theistic religion prohibits oaths. The usual gospel verses can be cited here.   But, the oath should not be there anyway.  It is a form of religious establishment.  The least wrong thing to do is "swear or affirm," the first part basically implying "so help me God."

Doing a search of the guy involved, I found a discussion of testing the idea that you might need to have a religion to be happy.  The idea is that religion has been shown to bring happiness and satisfaction.  But, what seems to be at issue here is a wider belief structure and sense of community:

In an interview with Religion News Service, he said while atheism can give people as strong a sense of identity as religion can for believers, and may help with their mental well-being, the challenge for them is "think consciously and seriously about where they will find community — and organize accordingly[.]"

FFRF promotes secular thought ("freedom from religion").  I have voiced my opinion that the key thing for me is freethinking.  I think religion per se is not necessarily bad.  The term is open-ended at any rate, just as "Christian" does not mean "conservative evangelical."  It is quite possible for a person to have some sort of "religion" while also not believing in or accepting the existence of ["belief" itself is a weighted word] heavenly beings or whatnot. 

There is a lot of vague talk of "belief" or "I believe in spirituality, not religion."  And so on.  This -- as I have repeatedly noted -- also pops up in abortion cases, including references to "conscience," even if VP Harris summarized this way in one of the multiple meetings being held addressing Dobbs:

Let the woman make that decision with her doctor, her loved ones, her pastor, her priest, her rabbi.  But the government should not be doing that.  

Yes, part of liberty is the autonomy to make such choices oneself.

Bastille Day

In honor, of sorts, of Bastille Day, I offer this hilarious bit from Suite Life On Deck. Cody broke up with Bailey in Paris and is letting out his feelings with a really twisted play, especially when he dresses up to play the Bailey stand-in.

Lincoln's Constitution

After re-reading his book on the Ninth Amendment, I checked out this book from the library. Like the Ninth Amendment book, it is basically for the average reader, not just someone specifically interested in the topic and/or a specialist. The book he co-wrote entitled Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations is more of that sort though you do not really have to be a law student to appreciate it. 

The title of this book is something of a misnomer.  It really focuses on the Civil War, with an extended prelude about antebellum ideas about state sovereignty.  A late comment about "if" he was saying he "would sign legislation banning slavery in the territories" also ignores that he actually did that.  One thing that could have been covered more in a more open-ended discussion was something like the rights of blacks. Lincoln said they had basic rights, as spelled out in the Declaration of Independence, without being equal in all respects as whites.  This is the middle path between the "no rights" of Taney and the "firmly equal rights" of radicals. 

(The book at one point notes the debates over sovereignty had a certain metaphysical feel to them.  Yes.  This talk of "dignity" of states and so on at some point becomes ridiculous, except we are talking serious results.) 

Focusing on the more narrow range of the book, it has some interesting aspects.  It also overall thinks Lincoln's moves were defensible, which I think is true as a whole as well.  Some, including those who toss it out to grant something to focus on something else like the idea Lincoln in general was lawless, blithely exaggerate how bad the wartime policies were.  A basic example is in the area of free expression, in an age before modern day law much more strongly protected that. 

The book also tosses in some interesting details such as the fact a federal circuit judge held that the statutes that empowered Lincoln to call up the militia implicitly also authorized him to declare martial law/suspend habeas.  This makes the whole Merryman argument somewhat moot.  Books that cover familiar ground often have some such useful details. On that note, Farber cites the possibility Taney did not have jurisdiction (which would allowed Lincoln to ignore his ruling) but did not cover the details. I recall a discussion that touches upon just such an issue.  

One basic thing covered was the "law of necessity." The line about following one law while ignoring the rest is cited sometimes.  This is done badly a lot of times too.  One aspect of Lincoln's argument (and he said much of what he did was legal anyways) is that the situation when the Civil War began was such that he in effect had a dilemma.  He could not truly faithless execute all the laws.  It was basically a "least bad option" scenario that is covered here in regard to the debt ceiling.

Also, the law of necessity is part of our system of law. It is not an "anything goes" scenario.  There is regularly some third party (there Congress and the people at the polls, other times a judge and/or prosecutor) who has to look at the situation.  They have to judge if the person truly had such an extreme situation that the law being broken was warranted. Sometimes, this serves as mere mitigation.  It is a complex thing.

The last chapter also covers the "limits of judicial authority" and the terms of so-called judicial supremacy.  Lincoln eventually came to a position where constitutional law as expressed by the Supreme Court comes into a firm footing over time.  A single ruling (Dred Scott) would not do so, especially if there is clear issues with it.  On the other hand, shades of James Madison statement on the national bank in his veto message, the law at some point becomes so established that it deserves deep respect.

The chapter cites Jefferson's "departmentalism" view that each branch of government has the power to settle constitutional questions.  So, even if the Supreme Court determines the national bank is constitutional, maybe Congress or the president will decide otherwise.  A more tricky issue here would be when the Supreme Court decides a question regarding rights and an executive official has to decide the same question. What if the result restrains rights in a way the courts find incorrect? 

The lest we be marshall'd book (recently referenced) covered Jefferson's views in somewhat more detail, noting that they were not fixed, and avoided the settlement of hard questions.  Jefferson was known to be more of an idea man. This book, for instance, noted that Madison talked him into toning down his rhetoric in his part in the Virginia (Madison) and Kentucky (Jefferson) Resolutions.  

The judiciary is supposedly particularly able to decide legal matters. They are after all judges, learned in the study of law.  They hear specific cases, able to examine specific legal matters in detail.  They are also protected from partisan pressures, their salary and terms protected.  They have an ability to stand above it all and protect the law, especially minorities.

All of these things are, surely, disputed in various ways.  As I said before, the best approach is to support a more humble version of judicial review.  Lincoln's pushback on Dred Scott is a good example.  Precedent can be bad regardless. But, recent precedent, especially one that is decided in a problematic way, are even more worthy of pushback.

The idea referenced in Cooper v. Aaron, which as I noted is far from a typical case, that the Supreme Court (and on some level all courts) are "supreme in the exposition" of the law can be abused.  If the Biden Administration wants to decide that the federal Constitution protects a right to choose an abortion, it very well can.  At some point, this will clash with Dobbs v. Jackson if it "wrongly" interferes with state power to regulate, but there is a lot of room before that happens. 

I recently wrote a supposed oral argument for Marbury v. Madison, which (unlike the original) included both sides arguing.  A relative uses such "oral arguments" as part of her sale of education materials (she is a high school history teacher).  A thing I flagged was that each branch has certain skills and duties.  They each swear/affirm to uphold the Constitution.  If anything, it is the POTUS that the Constitution gives the strongest oath there.  They all can have a role in exposition.  

The ultimate question then is who is "supreme."  As noted in the book, and by Jefferson (fwiw), each will be in certain respects.  For instance, Congress (so says the Supreme Court) has open-ended ability to determine the contours of impeachment, even though the language is legal in nature.  (Some extreme case like allowing a majority to convict aside.)   Presidents veto bills and can do for misguided "constitutionality" reasons.  And, each branch does a lot of things realistically, in part because of existing judicial rules, that simply will not be put to the legal test.  

There is a lot of play in the joints. There will be cases where a clash might arise.  And, even there, I think it is sound practice to reasonably have some clashes, especially when the legal limits are unclear and dubious.  The fact something in 1987 or something, for instance, held one thing does not mean that signing something into wrong clashing with it is horrible.

Each department, including the courts, have a duty to be reasonable here. And, when special moments, like the Civil War, arise, tricky choices have to be made.  This book helps educate yourself on such matters.

Griswold Again

The Dobbs majority (joined by Thomas and Kavanugh in concurrence though Thomas does want to go further) assures us that Roe v. Wade is special. The dividing line?

its effect on what Roe termed “potential life.”

Yes, the opinion does note that the contraceptives use ban at stake in Griswold was an "outlier" (the state pushed back on exactly how true that was). Nonetheless, the majority attacks the right to privacy too, at the very least as it is covered by Griswold, Roe, and Casey. Thus, Griswold's reasoning is attacked:

Since Griswold, the Court, perhaps recognizing the facial absurdity of Griswold’s penumbral argument, has characterized the decision as one rooted in substantive due process.

We are told that it a right to choose an abortion is not saved because it is somehow connected to family life and marriage since on a "a high level of generality, could license fundamental rights to illicit drug use, prostitution." Again, that is the sort of thing cited when contraceptives and so called "sodomy" (a crude term for non-vaginal intercourse) were involved.  

An opinion that purports to show -- contra how many historians frame it -- that abortion was never really seen as a legal right should not find it too hard to show that open access to contraceptives is not based in "deeply rooted in history."  

How about the potential life thing?

We are already getting evidence that a ban on abortion ("abortion") can lead to blocking what many deem birth control.  This news story shows how the IUD (the most reliable birth control method) is at risk. The Hobby Lobby case also shows how what people do not really deem "abortion" can be so labeled, including morning after pills.  And, on a wider level, the Catholic Church very well thinks birth control "involves" potential life.

Anyway, is there some "facial absurdity" to Griswold's argument?  The idea (to cite Holmes) that the Fourth Amendment's "penumbra" involves a broad "right to privacy" is often seen as arising in significant part from Justice Brandeis' dissent in Olmstead v. United States.  

As noted by Griswold, various Fourth Amendment cases speak of some "right to privacy." The footnote cites a 18th Century case protecting "sanctity of a man's home and the privacies of life."  Justice Harlan, whose Poe v. Ullman dissent was accepted in time as basically official, was also cited by a concurrence citing the same principle:

Certainly the safeguarding of the home does not follow merely from the sanctity of property rights. The home derives its pre-eminence as the seat of family life. And the integrity of that life is something so fundamental that it has been found to draw to its protection the principles of more than one explicitly granted Constitutional right. . . . Of this whole `private realm of family life' it is difficult to imagine what is more private or more intimate than a husband and wife's marital relations.

Harlan also wrote an opinion cited in Griswold holding that freedom of association has a "close nexus between the freedoms of speech and assembly," including the privacy of one's associations.  The opinion cites a few other cases (and writings) that show a right to "privacy" was recognized.  Sometimes, it was more of a general "liberty" (such as to raise one's children), but sometimes it was in cases involving specific rights.  

I do not see the 'facial absurdity" of the idea the same applies with other enumerated rights, privacy has a "close nexus" with them.  A bit of research can show how self-incrimination is part of the whole here (up to the of torture to force an invasion of one's conscience here). The same can be said about a right to conscience (First Amendment) though the opinion itself (as compared to the briefing) does not really address that.  

Justice Douglas in his Poe. v. Ullman dissent does not limit himself to some "penumbra" (though he used the terminology pre-Griswold), arguing that privacy generally is a necessary part of a free people.  He noted the importance of privacy in an earlier dissent, showing in part the wider First Amendment aspects involved:

The First Amendment in its respect for the conscience of the individual honors the sanctity of thought and belief. To think as one chooses, to believe what one wishes are important aspects of the constitutional right to be let alone.

A true respect of this principle, including as expressed in our history and traditions (and the text of the First Amendment), is not to draw a line among privacy precedents (or "liberty" precedents) at some greatly disputed, heavily mixed with religious belief, matter of where life begins.  

I do not think it absurd, especially as a means to try to practice (a bit ironically here) judicial restraint, to fit a right to privacy regarding birth control and general reproductive choices as a a wider application of enumerated rights.  

Melissa Murray in an article, for instance, reminds of a lesser known couple in the birth control litigation who wished to use it to secure a certain path as a couple.  Life choices here, association choices, can very well turn on not having the woman get pregnant.  The same applies to a person's equal citizenship role.  

I think it is probably true that reproductive liberty here is not merely a matter of fully protecting enumerated rights.  The enumerated rights do assume a wider range of freedom.  Nonetheless, it is not necessary or ideal to rest alone on them.  The Ninth Amendment and so on make this appropriate as well. 

(The usual framing of "matters relating to marriage, procreation, contraception, family relationships, and childrearing and education" is a mix of Bill of Rights and a wider understanding of freedom that grows out of history.)  

The "right to privacy" is a label that reflects a range of things. As summarized by one person (same cite):

The first is the right of the individual to be free in his private affairs from governmental surveillance and intrusion. The second is the right of an individual not to have his private affairs made public by the government. The third is the right of an individual to be free in action, thought, experience, and belief from governmental compulsion."

The contours here are determined case by case, in and outside the courts.  Justice Harlan's concurrence in Griswold is basically correct that the true restraint is up the judge, not some fantasy shibboleth (Mark Tushnet) like "history or tradition."  Who isn't in some way guided by that?  And, why is "potential life" separate from the rest here?  

Again, it is not like the Catholic Church admitted that contraceptives did not touch upon that.  And, how much of an "outlier" really was Connecticut?  For instance, regular controversies involving pressuring people to be sterilized continued at least into the 1970s.  Ironically, then, the military pressured women to get abortions.  

Is personal control over one's reproductive life so hard to separate from public sale of sexual services?  Years back, I imagined a right to prostitution.  You can craft one.  But, there is a pretty easy line drawn in current jurisprudence.  The same applies to regulation of the sale of illicit drugs though again cases do arise involving drugs, including lines drawn when you are forced to take it even to protect born humans.  

We past fifty years and are approaching sixty for Griswold v. Connecticut.  And, it is not yet quite secure, even though its popularity is so high that even Alito has to try to -- up to a point -- assure us (don't believe it) that Dobbs will not threaten its basic core and surely its principled wider application.

What a Reckoning at the Supreme Court Could Look Like

Ezra Klein is a political nerd with a podcast. I get the idea he has some good ideas though at times the vibes coming from him bother me. I do not really want to listen to his podcast though it might be useful. His recent op-ed reaffirms this. It also shows that even after decades of dealing with things, I still just have to scream out how stupid certain things are.

The op-ed is a mix of good, bad, and oh so close.  The op-ed starts on my good side by focusing on the presidential commission on the Supreme Court.  It continues to be my opinion that it was a useful device, even if it was woefully underutilized.  The idea it was just something to push things down the road and say you were "doing something" -- a typical reason for commissions -- is reaffirmed by how quickly it was forgotten.

But, the commission had value to examine the topic, inform, and serve as a agreed upon source of ideas for reform.  There should have been more of an effort -- including by law professor types that just sneered at it while in various forms honoring more than one person on it -- to promote it and educate the public.  It should have led to congressional hearings or something to examine the ideas, and push for change.   

The op-ed suggests the report provides various ideas for the "reckoning." Yes.  I have yet to read the think (I admit) since I want to read a hard copy. My repeated requests of the Biden Administration to send me a copy has not been answered, though once I received a form email in reply.  The report is nearly three hundred pages long. Printing it out would cost a lot.

I take the problem with the current Supreme Court to be that there’s no reason to trust its judgment, and many reasons to mistrust it. The process for picking appointees is thoroughly politicized.

The first part is correct.  The second part is missing something.  Ditto the argument later that we have to "depoliticize" the Court.  The process was always political as was the Court.  You are not going to totally remove politics when the Constitution itself gives political branches the power to nominate/confirm.  And, politics of some form will be on the Court.

The basic problem now is that it became so corrupted in an ideological fashion, leading to a problem of democratic legitimacy.  From the 1950s to the 2000, there tended to be a true centrist wing on the Court.  And, the nomination process was not so blatantly ideological on one side repeatedly. The idea of formalizing this (Eric Segall's split court assumes two parties with equal members) is raised by some reformists.

But you can’t fix the court by adding justices. You’re shifting the balance of power by contributing to the underlying problem: turning the court into an untrustworthy institution and setting off a cycle of reprisals with unknown consequences. If Democrats manage to pass a bill adding new justices, Republicans would match or exceed it as soon as they were restored to power, and on and on.

This part pissed me off since it is so tired.  Why does adding justices -- supposedly to make up for "stolen seats" and so on -- "turn the court into an untrustworthy institution"?  What is this verb tense?  The Court is (deep breath) already untrustworthy.  It is already packed.  It is already unbalanced. And, ANY number of solutions can be "matched or exceeded" by Republicans. 

The op-ed then goes into multiple paragraphs on the "easy" solution of term limits.  How do you put them in place?  I yet again say any law here will be prospective. So, when it the FUCK will this actually kick in with the current membership?  We are supposed to just grin and bear it, including the trolls in place now (new and old), until the 2030s or something?

A minor problem here, at least, is that if the limits are 18 years, justices can still strategically retire or die in office. So, the new term limit law has to be carefully crafted.  The op-ed also talks about setting up some mechanism if "two" justices' confirmations are delayed indefinitely.  Yeah.  There is at this time not a high likelihood a Democrat would even get two openings any time in the half-way immediate future.  

The op-ed ends with a more "radical" idea of a "balanced bench."  The ideas are interesting though to me pretty academic.  But, hey, we need to think big.  That is why more should have been done to use the commission as a platform for education and debate.  And, the blame can be spread around here.  It isn't just on Biden, who can't work alone here.

But, hey Ezra, where would this balanced bench come from?  The discussion for instance cites one idea of a 15 person bench [which would be far from extreme given world standards; as an aside, we can have a constitutional court with a limited reach here] where 10 justices pick the other five.  Again, it's academic discussion at this point, but it is interesting to think about.  But, notice the Numbers.

You can not "fix" the Supreme Court MERELY -- let me repeat that for the back row -- MERELY by expanding the Court.  I can be generous and take the op-ed as  a whole to show understanding here.  I am loathe to do this because he did not do it.  He didn't say "critics say that you cannot obtain a reckoning with packing, and they are right! It can, however, be a part of the solution with other things."  It is quite quite easy to say this.

I realize the limitations of the current reality.  There simply is not the votes or will to expand the Court.  The guy with superhero looking big white hair who "retorts" a lot can scream all he wants about how we need to expand the Supreme Court.  Some things we need simply are not possible at the moment in the real world.  Welcome to reality.

Nonetheless, I have reached a point where expansion of the Court does appear necessary for a true reckoning.  It has to be long term part of the solution.  Term limits are fine.  I think there are important and long term will help some.  It is insane to think Potter Stewart was some weirdo for retiring in his sixties when he was already on the Court for over twenty years.  It makes sense to have term limits.  

The same applies to ethical rules, televising the Supreme Court, and damn it already, let's have a full investigation of multiple members of the current Court (including how they got there -- a legal expert was on Stephanie Miller's show talking about all these tips made to the FBI during the Kavanaugh nomination that were not properly handled; okay! let's get a full report on that!).  And, there are other things.

But, the very structure, including the numbers, of the Supreme Court has to be part of the reckoning.  It is insane to have people sneer at court expansion, including assumed Republican tit-for-tat, when a basic reason for the demand is that they ALREADY FUCKING DID IT!  The idea (simply not admitted out loud) that we have to grin and bear this, hoping while thieves keep are cars that we can fix car ownership in the future is outrageous.  And, as I age ever so slowly, I can bear outrageous less and less.

Term limits alone are far from easy realistically to put into action. I referenced in my recent SCOTUS post the idea that if term limits are declared unconstitutional that court expansion can kick in.  The reference underlines the reality that they are not "easy" even if there is a general acceptance of them.  Sure, like there was long an acceptance of background checks for guns.  At some point, that led to a limited gun reform law.

The reality regarding a "reckoning" is that there are various parts. The Supreme Court being YOLO (abortion, guns, EPA, etc.) is one part. A major instigation that shows more than one group that something has to be done.  We have to connect this with Trump, since it a basic reason why we have the Court we have now.  Orin Kerr types can bullshit that "both sides do it," but the process was illegitimate based on just constitutional norms.

There also has to be enough people in power to change things. We should have enough people NOW to get certain things into law, including ethics rules.  So far, we got tweaks.  For the hardball stuff, we need more than 50 senators and obviously we need Democratic control of the House.  If that is the reality, a few Republicans might even go along. Again, on certain limited things, they already are there.

And, then you get to the true reckoning. The true reckoning includes major changes to the size and structure of the Court.  (I might add here true pressure, including impeachment investigations as warranted.) The commission's report and others provide some ideas here, including even some ideas like a supermajority veto of certain judgments.  

And, yes, the current 6-3 majority has to be addressed.  I have no simple answers on how to get there.  Like the constitutional convention, there just might have to be some sort of real compromise that helps to increase the chance of locking things into place.  The "balanced" court idea is a possibility there.  The expansion is not merely the only thing.  It is not just that four justices will be added, resulting in a (the horror!) 7-6 Court (which is really the legitimate breakdown; make it 6-5 or whatever).  

The "reckoning" is a long term effort to try to make the overall system fairer in the long term.  I refuse to grin and bear the idea that the best we can do here is -- maybe -- set up a system that -- maybe -- will kick in years from here. Meanwhile, the current Court (supposedly mildly warned, and with ethics rules not allowing them to as blatantly have celebratory Federalist Society visits etc.) gets to continue to strip our rights etc.

If we are going to talk about this, let's talk about it with sense. To toss it out, expanding the House also is not a bad idea.  Consider that the British Parliament has 650 members for a country with a population of under 70 million.  This is not just about "packing" the House.  Let's not be stupid. 

==

I later saw this piece by Saul Cornell, who is a good source for history of gun regulation in the United States.  

A few people were annoyed at me online for arguing that there has been a historical right to own and (to some degree) carry firearms.  Also, that a constant reference to the Second Amendment does not tell the whole story.  Cornell is one major source of mine to split the baby (militia and personal ownership).  And, there is a history of strong regulation.

Some rather not go there (perhaps of the "give an inch" school) and it's partially a result of so much emphasis on the Second Amendment.  Actual text and history does not lead us into this direction.  It is unfortunate there wasn't a Souter-type approach that granted a right to own a firearm (Breyer sorta did in Heller, but it seemed so weak as not to take seriously) mixed with a strong regulation mindset.  No other liberal since him really went there, Kagan and Sotomayor not speaking on their own yet.  

Okay, I'm basically repeating myself from past entries, but this might suggest the value of a truly balanced Court.  The reason I came here to add this addendum is this portion of Cornell's SCOTUSBlog piece:

Distorting the past to further his ideological agenda has become a trademark feature of Thomas. What is more disheartening is that the court’s newest originalists, Justices Neil Gorsuch and Amy Coney Barrett, signed on to this historical charade. Despite protestations that they are not ideological warriors and political hacks, Gorsuch and Barrett missed an opportunity to prove that originalism can be applied in a rigorous and neutral manner. Apparently, that claim continues to a be a promise as yet unfilled.

The "dishearten" part ("to cause to lose hope, enthusiasm, or courage: to cause to lose spirit or morale") does seem a bit much.  Did Saul Cornell really expect more?  Or is he just being polite? 

Good luck applying originalism "neutrally" -- this is some sort of snipe hunt.  This isn't new ground for Gorsuch (see the administrative state), even if he seems somewhat consistent (Bostock, Native Americans, a few libertarian type opinions).  And, even when he gets a good result, it seems oh too simple regarding how he got there.

(At some point, you might accept somewhat mythical language about principle that do not quite match reality.  At least, it is somewhat a consistent thing, especially when a majority has to be crafted.) 

And, we saw by Barrett's path to the Court a mix of hack and charade.  She wouldn't be here if she was fully honest.  And, once you try hard enough, it's hard to suddenly flip a switch.  You basically accept your own b.s.  

Still, I guess, this is a scholar's polite way of flagging a problem without fully calling justices hacks.  Some don't like softening blows.  I am okay with it to some degree. 

Dobbs: The Majority

Okay. I really should have done this earlier, I guess, but it's time to look over the majority of the Dobbs opinion. 

Meanwhile, President Biden handed down an executive order, and Biden and Harris continue to meet with pro-choice leadership.  I wish there was more coverage of such matters.  For instance, after leading with yet more coverage of the 1/6 Committee and related matters, Chris Hayes had a guest talk about the order in the last five or so minutes of his show yesterday.  

Maybe, if there was more coverage, the "Biden isn't doing anything" type responses would tone down a tad.  Melissa Murray (Strict Scrutiny Podcast, familiar face on cable shows, etc.) on Twitter noted that basically the bottom line thing that matters now is November.  I do wonder what executive orders will do.  Probably at some point we will have litigation on state power to ban use of abortion drugs and travel issues. 

For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade

Okay, I know, I have to deal with Alito.  This isn't really true.  I think that is going to be a theme.  Before Roe, multiple state and federal courts limited the power of the states in this issue.  Alito cannot even toss in a comment about some "recent" move here in the courts.  He has to say that Roe suddenly out of the blue changed things.  It did not.  

Although the Court acknowledged that States had a legitimate interest in protecting “potential life,” it found that this interest could not justify any restriction on pre-viability abortions. The Court did not explain the basis for this line, and even abortion supporters have found it hard to defend Roe’s reasoning. 

This is a lie.  It is a blatant (deep breaths) lie that "any restriction" was not allowed.  Words have meanings.  For instance, only allowing doctors to perform an abortion is a "restriction."  The word must be being used to mean "total ban," but that is not what he said.  

I left out a footnote citation, but it page cites a summary of the trimester lines.  It explained the "basis" of each.  Again, he could have said the basis was "wrong" or something.  But, the basis -- another tiresome case where a normal word is used as a sort of narrow code meaning -- was cited.  The Roe Court balanced state interests with the right to choose.  

[ETA: I want to underline this. The "trimester scheme" (as it is sometimes called)  is doctrine.  There are lots of doctrines.  They balance a range of things and channel them into applicable lines.  So, for instance, maybe you have to bring someone in front of a judge within "x" amount of time.  

Roberts posed some vague balancing test rule.  The trimester rules, like  like the Lemon Test or the three part test on how to define obscenity, allow people, including judges and law makers, to  have a more workable set of rules.  There will be some disputes, but it provides some basic guidance.]

In defending this law, the State’s primary argument is that we should reconsider and overrule Roe and Casey and once again allow each State to regulate abortion as its citizens wish. 

As noted by Roberts, the case was granted to consider a more narrow question, and it allows them to cheat to use their "primary" argument for the Court to do something it specifically didn't grant the case to decide.  The Court -- when it suits -- repeatedly does not allow that sort of thing. It even sometimes "DIGs" a case, disposes it as improvidentially granted, when the arguments made seem to be beyond the question presented. 

The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.

A state law that forces people to serve as incubators sure sounds like a form of involuntary servitude to me.  

BTW, the opinion tosses in various people who criticized the reasoning of Roe, without noting that they repeatedly also supported a right to choose, including (John Hart Ely Jr.) upholding Roe as precedent. 

Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being.

These other rights are not directly (but see, of course, the 9A etc.) by the Constitution either and many of the same rhetoric/arguments pop up [reading the dissent of Chief Justice Roberts in Obergefell v. Hodges is telling here; oh do read it], so this is a key issue.  

Still, two basic problems.  (1) Not sure why such disputed moral/religious belief is the dividing line -- if anything, the First Amendment alone suggests, it is less sensible to make an exception here of all places.  (2) The state interests -- at least so far -- aren't so serious that there is found to be a compelling state interest to block abortion from being allowed.  

We begin by considering the critical question whether the Constitution, properly understood, confers a right to obtain an abortion. Skipping over that question, the controlling opinion in Casey reaffirmed Roe’s “central holding” based solely on the doctrine of stare decisis, but as we will explain, proper application of stare decisis required an assessment of the strength of the grounds on which Roe was based.

The second section of Casey (before the stare decisis discussion) provides an extended summary and agreement with substantive due process. The section is assumed to have been written by Justice Kennedy.  The basic principles are reaffirmed in his same sex couples liberty decisions.  

The Constitution makes no express reference to a right to obtain an abortion, and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text.

Again, it is unclear how "implicit" the right at issue truly is. Still, fine enough. We soon see that their criticism is simply not cabined:

Roe, however, was remarkably loose in its treatment of the constitutional text. It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.

The choice of Alito to write this opinion (though as I noted before, Kavanaugh's concurrence isn't really much better) encourages this sort of tone.  At any rate, Roe v. Wade summarized a range of opinions involved here.  Casey provides more detail.  As did many other opinions, on various levels.  As did a lot of other people.  And, again, this is an open-ended criticism.  Why is Griswold acceptable on this light? 

Neither Roe nor Casey saw fit to invoke this theory

The opinion disposes of the equal protection argument -- which again is made regularly -- in a dismissive handwave.  The abortion cases regularly spoke of the importance of the right here for a "woman," including Casey saying things like "We conclude, however, that the urgent claims of the woman to retain the ultimate control over her destiny and her body, claims implicit in the meaning of liberty, require us to perform that function."  

“deeply rooted in [our] history and tradition”

The right to choose an abortion has been recognized as part of substantive due process.  This isn't the only way you can protect the right, but it is the core of Roe and Casey.  I should be careful there because again by the time of Casey, surely, it was recognized there was an equality component. Justice Kennedy recognized the overlap in Lawrence v. Texas.  

We now have some (selective) exegesis on history, which Roe allegedly either "ignored" (it has a LONG section on it) or "misstated."  As the joint dissent notes, it is unclear -- if the majority is consistent about its recent originalism -- how useful the centuries of history summarized is.  

The point seems to be 1868.  But, let's say the history is still garbled with comments like "Although a pre-quickening abortion was not itself considered homicide, it does not follow that abortion was permissible at common law—much less that abortion was a legal right."  

This sort of thing is refuted by others.  But, again, what is the point to debate on such terms?  As the dissent notes here and in the gun case, and heck the praying coach cases, history is Calvinball with this bunch.  

The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. 

The dissent basically conceded this was true in 1868 ("right"), but it is a matter of debating terms.  What exactly does this entail?  Was  "right to interracial marriage" deeply rooted?  The answer from conservatives would appeal to the meaning of equality in the race context.  That is, the usual originalism game of selectively being concerned with generality.  

There was some sort of "right" to control your body, family size, and so on.  The evils of slavery involved black women not having such liberty.  There also was a mixed understanding of when abortion was necessary for health, again, there being some understanding that there was a right to basic well being here.  And, then, there was the problem of arbitrarily applying the rules here, including by abortion panels at hospitals.

The regulation of abortion arose for a variety of reasons, some valid (safety), some not (concern for eugenics or monopoly of medical control).   These all factor into "history" and "tradition" as does reasons why abortion rights  began to expand.  The majority at one point denies any "illegitimate" motives at all here. This is just one-sided history.  

One may disagree with this belief (and our decision is not based on any view about when a State should regard prenatal life as having rights or legally cognizable interests), but even Roe and Casey did not question the good faith of abortion opponents.

So, "a sincere belief that abortion kills a human being" is not the line that differentiates abortion rights, even though "destroying" such "life" is for some reason.  See above, where that underlined as a key difference with Roe. Again, we are firmly told that contraceptives or marriage is not at issue here.  And, "belief" to me sounds like a religious concept that as Casey noted must be left (well regulated to be sure) to the individual in this context.  

Instead of seriously pressing the argument that the abortion right itself has deep roots, supporters of Roe and Casey contend that the abortion right is an integral part of a broader entrenched right. 

As a supporter, this is not true, unless again "seriously" means "not the way I agree with."  Supporters cite basic principles of liberty and equality with deep roots.  Roe v. Wade suggested the right to privacy at issue goes back to at least a case back in 1891 or earlier.  See also, Griswold.

The basic principles have deep roots.  The specifics change over time some, especially as women and others are accepted as more full equal citizens.  This is developed by precedent, which is seen as too vague for the majority, though it is how law develops in general (see speech).  

The most striking feature of the dissent is the absence of any serious discussion of the legitimacy of the States’ interest in protecting fetal life.

As Chief Justice Roberts et. al. argued about same sex marriage, the appeal of letting others draw difference lines do not stop at abortion.  Justice Thomas' concurrence aside, this argument is a bit too open-ended for all five of them.  So, we are told that the "critical moral question posed by abortion" is the difference.  

But, no matter if it was cited as a "unique" act, the precedents do not say it is SO unique that it can be banned.  Various rights have "unique" aspects.  Raising children, for instance, is involves the interests of a being no doubt about it is a child.  And, is limited to this, the opinion can cover a range of things such as certain types of "birth control" and in vitro fertilization. 

The majority is again wrong to say "potential life" is totally ignored.  The dissent notes as much, noting how the interests are balanced. The viability line is one. Ditto such things as providing waiting periods or counseling materials.  I myself think some of these things as accepted by Casey goes too far.  But, it underlines the talking past each other here. 

We next consider whether the doctrine of stare decisis counsels continued acceptance of Roe and Casey.

You would think that this would come before an extended look at the question as if you were deciding it the first time.  

First, obviously, some major precedents were overruled.  The overruling tended to be a matter of a societal change. So, segregation no longer was seen as appropriate, or Lochner Era economic policy was no longer accepted.  As the dissent notes, it is unclear what foundational change happened here.  An illegitimate Court, particularly set up to be a conservative activist one, is why this happened.  

In this case, five factors weigh strongly in favor of overruling Roe and Casey: the nature of their error, the quality of their reasoning, the “workability” of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance.

Roe "was [not] on a collision course with the Constitution from the day it was decide."  It fit into a wider collection of precedents that went back to at least the 1920s, if not before.  The quality of the reasoning regarding the basics was fine.  Again, Roe explained why it drew the lines it did, and at best there was some reasonable disagreement on where to do so.  

This section of the opinion again has the specious citation of people like Tribe or Tushnet who do not oppose the core of Roe v. Wade.   Casey [did not] "abandoned any reliance on a privacy right and instead grounded the abortion right" -- it just framed it as a "liberty" interest, if one with the same basic principles.  The "workability" of the fundamental right or undue burden test is as good as any number of constitutional tests.

The section also cheapens the "reliance" interests involved in basic assurance that one's reproductive liberty is protected.  The opinion has mere ipse dixit that somehow abortion alone is affected by its analysis.  If the principles cited are consistently applied, it does not.  And, abortion rights do not corrupt other areas of law. 

Finally, there the opinion was not "egregiously wrong" the day it was decided.  The reversal of a fifty year precedent warrants a lot more than is shown here, including a clear warning and full briefing specifically targeting it.  Precedents tend to develop over time, not suddenly -- because the personnel changes -- be overruled.  The action here is crude activism.  

[They then ridicule Roberts' attempt for a middle path.  I don't think his analysis is very good either, but it at least is more tied to the alleged issue at hand, and not a total YOLO job.  The proper path would have been a Citizens United reargument.]

Under our precedents, rational-basis review is the appropriate standard for such challenges.

This standard basically is a carte blanche to do anything you want.  The cases cited are economic regulation policy type cases that have no real limits.  The section has NOTHING that suggests there is some exception. Kavanaugh in passing says a life exception was granted by Rehnquist.  

But, even that, as the dissent notes, is rather vague.  Pregnancy itself causes a range of health problems. So, clearly such a rule has to be narrow in scope as not to swallow the rule.  Surely, rape is not suggested.  

There is a strand of cases that probably are not respected much by various members of the majority that are concerned with discriminatory laws (a case like Romer v. Evans), but the opinion without analysis ridiculed the idea that anti-abortion laws are of that caliber.  It is hard to see what laws would be deemed illegitimate.  

Kavanaugh assumes a law blocking travel would be struck down (unclear).  The majority doesn't say this. The only time that comes up in any fashion is ridiculing the viability line to the degree that it might be somewhat higher some places where it is more likely for a fetus to survive outside the womb with better treatment.  This leads one not to be hopeful the majority will respect some limits in extreme cases.  

===

The opinion then has an appendix that lists anti-abortion law through the years without providing context and discussion of their terms and the conditions involved in their passage.  Curiously, it does not have the most recent "reform" type laws (the list goes past 1868) or state court opinions that protect abortion rights.  

It cites a D.C. law without citing United States v. Vuitch, which provides an open-ended definition of "health" that flows directly into Roe v. Wade.  This appendix is more more selective look of history.  This is an illegitimate institution. 

ETA: One other thing to toss in is that the opinion is critical of Casey's attempt to appeal to the controversy as a whole, including its attempt to settle things on some level, especially since (of course) abortion is still a major dispute.  The majority said their opinion might be controversial, but that is out of their hands; they were just judging is all. 

I was never a big fan of some aspects of that approach and (though Breyer focused on it during the oral argument) the dissent did not focus on it too much.  But, it is appropriate to carefully handle major legal questions, including those with very sensitive and controversial aspects.  They reached out here and went out of their way to be a bull in a china shop. 

How New York’s highest court has veered right

ETA: Oh well.  "Janet DiFiore, the chief judge of the New York Court of Appeals, the state’s highest court, says she will step down at the end of August."

After the Vermont and Massachusetts supreme court rulings both recognized some degree of marriage equality to same sex couples, the New York Court of Appeals, the state's highest court, did not. This around fifteen years ago and was a split decision, but the general lame arguments were cited. 

I guess going by this recent article speaking of a "4-3" conservative leading Court of Appeals, there continues to be some.  The key votes came from two late Cuomo appointees, who progressives were upset received so little pushback in the state senate.  It was part of the aggravating end of the line of the Cuomo years, ending with a failure to impeach or get him much more in way of punishment except for being forced to resign.  

The article points out that not only have these four judges handed down noticeably conservative rulings on various issues, but did so often with limited analysis and effort at compromise.  Sounds a tad too familiar.  It is not supposed these judges are as bad as the Barrett Court.  All the same, as the Supreme Court gets very conservative and we have a more liberal legislature, it is upsetting.  

Judge Shirley Troutman, who joined the court early this year after being nominated by Gov. Kathy Hochul, is the court’s closest thing to a swing vote. Sometimes Troutman sides with the conservative bloc, and sometimes with Judges Jenny Rivera and Rowan Wilson, the court’s two liberals, both Cuomo nominees. But since the four judges in the conservative bloc already form a majority, Troutman’s vote generally doesn’t affect the outcome of cases.

Troutman was in the dissent in the partisan gerrymandering case. She is the second African-American on the court of appeals, and received NAACP support.  Some were upset, however, that she is a former prosecutor. This is a concern, especially with the Cuomo picks.  OTOH, as far as it goes, she seems a decent selection, one reason it was reasonable to vote for Hochul in the primary.  

I have noted from time to time that I do not pay enough attention to local government. I know rather little about the operations of local courts. To be fair, even in regards to the Court of Appeals, the main papers do not provide much coverage of their decisions.  The linked article is from one of online sources that provide important coverage of local government. 

SCOTUS News and Thoughts

SCOTUS Protests: Apparently taking time off from investigating the leaking of the Dobbs draft, the Supreme Court marshall asked Maryland and Virginia officials to direct law enforcement to enforce state and county laws prohibiting picketing outside the homes of Supreme Court justices. The letters, and this bothered the state officials, were also sent to the press. OTOH, as usual, nothing on the website's press page.

The Republican governor of Virginia might be on board somehow, but local officials are not. They (like the U.S. Justice Department) argue that peaceful protests are protected by the First Amendment.  As has been reported in the past, the Supreme Court said as much with anti-abortion protests of homes of doctors, though some sort of buffer zone and time, place, and manner rule (no two a.m. protests) can be put in place.  

Any literal reading of laws that say otherwise should be seen as a violation of the First and Fourteenth Amendment.  As noted in the article:

"They are allowed to be in the neighborhoods, but they must continuously walk, they cannot stand specifically in front of a neighborhood with signs and bullhorns and yelling at the residents," Jones said about the rules for protesters. "They must not block sidewalks, and they must not block the streets."

ETA: I am wary of a permanent protest outside of houses of judges, especially since there is an "whose ox is being gored" problem.  So, I am not really a BIG fan of them.  As a general rule, I think a buffer zone around the home is both valid and to some extent constitutional.

But, we are in a certain period where the opinion is still raw, and a normal run of the mill rule realistically will be resisted.  And, what exactly is the line asked for here?  What is "picketing"?  What is "adjacent"?  Can they cosplay in handmaiden outfits down the block from Barettt's house?  And, when you start talking about "terrorizing," that is absurd. The reports -- and the single guy who did so at 2AM is not of this caliber -- are in no way matching that. 

I also basically agree with this analysis of a protest of Kavanaugh when he was eating at a restaurant. 

===

Packed Court Blues: According to one analysis, these protests might be going on in some form a long time since the current Republican dominated majority will be around for helluva long time.  And, this is a serious problem:

The Supreme Court’s legitimacy turns in part on its being democratically accountable. If a party repeatedly wins the presidency (and to a lesser extent controls the Senate), the judicial views of that party should be reflected on the Court. The democratic accountability deficit is particularly acute now as Republican nominees currently hold 6 of 9 seats, notwithstanding the fact that Democratic Presidents have won the White House in 5 of the last 9 elections.

Any response to concern about "packing the courts" etc., should underline the full nature of the problem, including how the Supreme Court is already "packed" by Republicans. I have in the past disputed criticisms of expansion. Now, one such critic is floating the idea of term limits or expansion.  FTC is surely not a big fan of expansion and it is being floated as a sort of threat.  I think expansion talk directly is.  

I am not really gung ho here.  There have been various proposals regarding term limits, some arguing there is a way to do so without a constitutional amendment.  A basic idea is -- for the first time in 245 years -- to have a "judge" type role where they serve 18 years on the Supreme Court, and than the rest of the time mostly on lower courts.  

It's a sensible policy approach on some level, but questionable if (or if it should) it will be upheld.  Why 18 years, after all?  The argument would work the same basically if it was eight years. The basic idea of life tenure, including not worrying about time after stepping down, is not really upheld in a basic way if most of the tenure is spent on a lesser court.  

Being a Supreme Court justice is a special office.  It is not fungible with a court of appeals or district judge slot.  I think it is stretching the Article III language (though I won't say so far to break it, but realistically, it is stretching it rather much) to argue this should work.  Honesty warrants a constitutional amendment here.  I am willing to be proven wrong.

The ultimate problem is that this will take time. Years.  It will take time and effort to pass and then it will be subject to appeal.  And, it will not address the immediate problem in the meanwhile.  In a mega-way, term limits will address judicial power concerns.  I think it is fine as policy.  But, expansion and other responses to the current problem is necessary.  

===

Lest We Be Marshall'd: I have this book from some years back with a very colorful cover, which discusses a battle over judicial review in the opening years of Ohio statehood. The book's font leaves something to be desired and then the story goes into a somewhat tedious battle over court membership.  Still, it is an interesting bit of history, including to remind that there is another way to look at judicial review. 

At times, you will see people today argue that judicial review is not really in the Constitution, and that Marbury v. Madison dubiously established it.  Let it be noted that -- just like Griswold v. Connecticut did not "establish" a right to privacy (see, e.g., Mapp v. Ohio) -- judicial review (particularly the power of the courts to hold legislation and official acts as contrary to the Constitution) was not first establish judicial review.  

One good defense of judicial review reprinted here as an appendix at the time said as much. Supreme Court justices in the 1790s repeatedly, including in rejecting service as war pension commissioners, appealed to judicial review.  State court judges also did so, if admittedly in a limited number of cases.  Likewise, Jefferson and Madison cited it as a means to apply the Bill of Rights, including as a protection of rights of minorities.  

Complete opposition was a minority view.  Opposition did arise.  There was a view that each branch swore an oath to the Constitution and the courts did not have some special role (or ability) to define its terms.  The legislature if anything seemed safer since it was closer to the people, tended to have more limited terms, and mistakes can be addressed at the polls.  

I find the last a bit unrealistic, since people elect people for a range of reasons, and some wrongful act will be only so problematic.  This beyond the development of parties and the fact that often people do not mind "breaches" of the Constitution.  The concern that judges would go too far, including into "political" matters, was present then and always had bite.  But, there is a core logic that judges have a specific job to interpret the law. And, litigants are in front of them specifically to have them do it.  

The most logical approach here is one some Supreme Court justices and later Ohio judges (who btw had limited terms, suggesting more of their limited power) offered.  That is, IF you declare something unconstitutional, make sure it is a clear case.  This is particularly the case if a whole separate branch is involved as compared to the act of a single official.  

Respect for other branches, which have their own skills and responsibilities, warrant this as does overall a respect for the people's will.  It is a balance, as the Dobbs dissent noted in a different context.  There is a respect for majority rule, but it is not absolute.  A written Constitution as well as an overall principle of rule of law with rights and obligations sets forth overlaying rules.  And, when it comes to policy-laden topics, respect of executive and legislative branches are quite appropriate.

The book itself notes that after the controversy, and the passage of time (War of 1812 intervened), courts in Ohio began to be given more respect. Note again that limited terms (seven years in the beginning) and good personnel helped here. Plus, a respect by the judges themselves of the limits of their discretion.  

The last chapter is not a complete look at the aftermath.  Still, we can see a joint effort here.  The concept of "judicial supremacy" is also touched upon as well as popular constitutionalism (briefly).  The first term throws me a bit since it has a somewhat unclear reach.  Supreme how?  For instance, President Biden can veto an anti-abortion bill on constitutional principle, even in the face of Dobbs v. Jackson.  It is supremacy to dispute that.

OTOH, it is not really "judicial supremacy" without more for the courts to set forth rules with precedential weight.  We probably do need more pushback mechanisms, a way to see "if they really mean it."  See the intro here for a taste.  His Ninth Amendment article from the 1960s was in a collection edited by Randy Barnett and he had a very well phrased paragraph in it on the limits of using history alone to decide constitutional questions.  Quite fitting for these times.  

Mapp v. Ohio can be cited again. The state supreme court there struck down the possession statute at issue there ... well a majority of the justices did, but not the supermajority necessary under the state constitution.  Is a 6-3 rule a good idea?  Or the Canada practice for some matters where a supermajority of Parliament can overrule?  Also, there is usually a more restrained way to decide such as in the recent gun case, where it could have been sent back for trial, or the abortion case -- the Roberts route.

I am quite sympathetic to all of these matters in some form.  I specifically think the "YOLO" tactics of the Barrett Court troubling.  

==

In other words: Sitting Supreme Court justices have prayed together with evangelical leaders whose bosses were bringing cases and arguments before the high court.

Ethics: A Rolling Stone article flags some involvement with religious leaders and justices, overlapping with those who had business in front of the Court. The article provides some interesting details though ethics experts might dispute in what cases was a line clearly crossed.  It does add more fuel to the overall argument that there should be a binding ethics code.

The test then will again be how much bite will it have.  Will justices truly take it seriously?  Will there be real efforts, including by some official process and consistent congressional oversight (helped by press coverage and so on), to put the justices to the test?  Again, "judicial supremacy" is a matter of line drawing here too, including self-restraint backed up.

===

Since the justices (and the rest) went off for their summer recess, I have not seen any news regarding their actions or official acts.  Two executions are scheduled this month, so perhaps, we will see something there before the summer order lists begin.  And, there is always a chance something will pop up, minimal or otherwise. I will keep an eye out.

On the Killing of Shireen Abu Akleh

I think Ned Price is a reasonable spokesperson for the State Department. But, as with Jen Psaki, he does have to at times just provide the (dubious) current line. And, the release of a statement "On the Killing of Shireen Abu Akleh" is of that character. That would be Palestinian-American journalist Shireen Abu Akleh. The statement is short enough to post in full:

After an extremely detailed forensic analysis, independent, third-party examiners, as part of a process overseen by the U.S. Security Coordinator (USSC), could not reach a definitive conclusion regarding the origin of the bullet that killed Palestinian-American journalist Shireen Abu Akleh. Ballistic experts determined the bullet was badly damaged, which prevented a clear conclusion.

In addition to the forensic and ballistic analysis, the USSC was granted full access to both Israel Defense Forces (IDF) and Palestinian Authority (PA) investigations over the last several weeks. By summarizing both investigations, the USSC concluded that gunfire from IDF positions was likely responsible for the death of Shireen Abu Akleh.  The USSC found no reason to believe that this was intentional but rather the result of tragic circumstances during an IDF-led military operation against factions of Palestinian Islamic Jihad on May 11, 2022, in Jenin, which followed a series of terrorist attacks in Israel.

The United States appreciates and continues to encourage cooperation between Israel and the PA in this important case. We will remain engaged with Israel and the PA on next steps and urge accountability. We again offer our deepest condolences to the Abu Akleh family.

I have not kept track here, but the general sentiment of the commentary is that this was a grave wrong, the killing of an innocent journalist.  Furthermore, many note there are very suspicious details that suggests that it was intentional.  

And, there was a general suspicion of the good faith of the U.S., who  has long been pro-Israeli, including not formally overturning some over the top Trump policies.  A statement that seems a bit pathetic and slanted is not a good look here.  Even if Ned Price tries to claim “Our goal in this was not to please everyone."  Sure.

The Palestinians were wary of allowing such a test and some far from clearly backed up by the evidence comments like "no reason to believe" (contra evidence provided by others) suggests maybe they were right.  The framing of "tragic circumstances" can be cited as a sign the U.S. is just a concerned outside, though it is diminished by highlighting the context in a way that seems to put Israel on the ah offensive.  

What does the Israelis have to be displeased here? Other than a full fledged sham job, the U.S. couldn't have said more to help them sweep it under the table.  What if the reporter was killed by Russian forces? As my local paper, which is not exactly a liberal newspaper, notes:

The world will only keep getting more dangerous for reporters if the powers that be fail to properly probe killings or bring perpetrators to justice. The U.S. must either conduct a real investigation or assist a trusted third party in doing so.

This is a case where people need to bite the bullet and focus on what is right.  I realize that sounds a bit naive when it comes to international relations, especially those involving Israel, but so be it.  On certain issues, however, some things will remain. There is a limited "both sides do it" that is true though even there we have degrees.  The killing of a member of the press, however, is a time to draw a line  

NEW: Sen Lindsey Graham (R-SC) will go to court to challenge the subpoena from grand jury in Fulton County, Georgia

Statement from attorney accuses grand jury of working "in concert" with House January 6 Select Committee pic.twitter.com/AwfJLn2RBm

— Scott MacFarlane (@MacFarlaneNews) July 6, 2022

It is easier for liberals to rail against someone here, but the overall principles hold.  The basic issue here is the rule of law.  We were told impeachment was not necessary (or ideal), in part since there were alternative methods.  But, darn, if they too are avoided in the end.  Here, someone can't even TALK to a grand jury.  

A secret body.  And, he puts forth strawmen such as the idea that his right to discuss the election with state officials is being challenged.  Now, yes, it is a bit curious when a federal senator does that.  Is that normal?  

But, the basic concern here is a full accounting of what happened to the degree criminal action occurred.  He does not have some total discretion here. Can he aid and abet breaking the law and not even be called to talk about it in a grand jury?  What sort of outrageous is this? 

This is outrageous, though it will get lost in a bunch of other outrageous obstruction of justice [the fact that was a whole separate grounds for impeachment the first time is basically forgotten] in this matter.  Sen. Graham is violating the basics of his oath to uphold the Constitution, especially the letter of its terms.  

It is so fucking outrageous and YET AGAIN the idea having these people in power in 2023 is insane.  And, we get more "Biden is weak" stuff, or "Democrats are not doing anything."  Which is both a lie and a damn stupid thing to put out front and center.  We aren't in a debating society here.  The net result is to aid the side of fascism.  

But, we have to watch our own houses, and the killing (supposed murder) of journalists have to be carefully addressed. More than the bullshit statement dropped during July 4th weekend basically suggesting embarrassment of the whole thing. 

Erotic Eats

Some of the few hits I received here regard my comments about "erotic" films. There used to be more choices, including series like Life on Top, but Showtime and TMC do have a few options. Checking the films on demand, I found a new one. And, it's an Adam & Eve production, which means it is of some quality.

Nothing grand, or anything, but more watchable. The website summarizes: 

"A newly divorced woman moves to a new town to start her own gourmet meal delivery service and inadvertently gets involved with the singles and couples she interacts/mingles with while cooking for them." 

The pic is from late in the film.  The film starts with the caterer dreaming about her ex. We also get a bit of her later (basically breasts) later in the tub. We get a few (including one same-sex lesbian couple, after a marriage proposal) sex scenes.  At the end of the film, a big-boobed woman is scared about meeting a hook-up and the caterer is left waiting with her date. You sorta expect they would have sex, but (1) she hasn't mixed business with pleasure [though one customer fantazies] (2) it doesn't happen. 

We get the usual glossy-looking soft porn (basically no penises; there might be a more graphic uncut version) video, no shots of crotches or butts really (some of these videos do have that), and a lot of moaning about off-screen activity.  There is not really much plot in the film though there is a bit of connective tissue, including a bit of her preparing the food.  The acting isn't great, but overall not so bad or anything to be that notable. 

I personally find the look here not too attractive (one comment: the sequences are filmed such that if a woman has small breasts, you barely see them much of the time during sex) though the actresses here are in general nice looking.  And, I don't know why they show so little during the sex scenes.  Again, you are allowed in these sorts of films to show some flashes of ass and crotch.  I don't know if the actresses are totally shaved (a few of the films have them closely shaved but a bit of pubic hair is apparent).  

[The women are nice enough looking and -- unlike some films -- the men are not creepy, but they generally look like porn stars. One with her hair in a bun is somewhat more interesting looking.  Still, as a personal matter, these aren't really the types that I find too sexy.  Not OD on tattoos though.]

Some of these movies have quite extended sex scenes (even cut for the soft porn audience), so much so that it gets rather boring. The scenes here do not seem that extended though, after a while, you might want to get a snack or fast forward.  Other films, I think show a bit more creativity.  OTOH, some also look cheaper.  Some like that sort of thing; I don't like the real cheap-looking films. (Erotic Emergency is one).  So, this was a wash. 

I heard that the movie The Devil Wears Prada is having an anniversary. There was an amusing parody, The Devil Wears Nada, which has various familiar earlier 21st Century porn actresses in the key roles.  There is a film available now about hook-ups that is decent (does have some creepy-looking guy and the current overdoing it regarding tattoos) and shows more during the sex scenes (don't worry! no cock!).  

Erotic Eats (I'm not familiar with the actors) is okay enough.  I still wonder if there is a good (there is a pretty bad film based on it) truly explicit "naked and afraid" type reality program.  The one on now is censored.

Update: Looking at this film again recently, to correct a bit above, we do see a shot of butt in at least once in the last sex scene.  The scene is pretty well done (I think the hair in a knot is an interesting look) and might be the best in the film.  This is not high praise, but I thought it was kinda sexy.  

And, the ending remains a bit strange.  I think it basically works okay though who knows if it was the original ending. These films are cut for t.v. and not just to downgrade to soft porn.  Still, you sort of expect something else.  The last five minutes are basically somewhat tacked on.  

Sit Down John

Congressional Tidbits

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

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

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

The Tall Target

This movie makes use of an alleged actual plot on Lincoln's life on his way to D.C. Dick Powell's character, who could be one of the film noir roles he had later in his career (or directed), is sorta like the officer in Narrow Margin, both thrillers taking part on trains. The film was quite good and a young Ruby Dee has key supporting role as a "favored" slave.

July Begins: Round-Up

We are moving into a July 4th weekend while Congress is in recess and the Supreme Court is in recess until the fall. On that front, Joan Biskupic, the veteran Supreme Court reporter, basically said we have a YOLO (you only live once, so let's do it all now!) Court:

Twenty months later, it is plain the majority was in a rush. The right wing did not need Roberts' vote for a majority, and on many conservative agenda items, such as religion, race and regulatory power, he was fully with them. (Roberts wrote alone in Dobbs -- with a middle ground that dissatisfied both sides).

Well, An apt time for me to write a book view of Taking Back the Constitution, eh? I also re-read an older book by Daniel Farber (who also co-wrote a book opposing choosing any specific means to interpret the Constitution, arguing a balanced approach works best) on the Ninth Amendment.  The general discussion is more satisfying than the usual "the Ninth is better than" and a quick run through of a few issues.  

One last Supreme Court thing for now.  The calendar on the website does not have the summer order list days marked off. This was a thing that I was annoyed about when SCOTUSBlog didn't mark them off. They are, like other official days, specifically scheduled.  They count.  

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The year marches on, a half of it complete. Today's Canada Day, explained one place thusly:

All those who celebrate Canada as their home and native land celebrate Canada Day on July 1st. The day commemorates the anniversary of the Constitution Act, which consolidated three territories into the single nation of Canada, way back in 1867.

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The end of Pride Month also brings this official statement by the lesbian press secretary:

Today, some of Florida’s most vulnerable students and families are more fearful and less free. As the state’s shameful “Don’t Say Gay” law takes effect, state officials who claim to champion liberty are limiting the freedom of their fellow Americans simply to be themselves. Already, there have been reports that “Safe Space” stickers are being taken down from classrooms. Teachers are being instructed not to wear rainbow clothing. LGBTQI+ teachers are being told to take down family photos of their husbands and wives—cherished family photos like the ones on my own desk.

The law in purpose and effect is a violation of freedom of speech, equal justice, and local discretion.  The statement continues:

The Department of Education will be monitoring this law, and any student or parent who believes they are experiencing discrimination is encouraged to file a complaint with the Department’s Office for Civil Rights.

Yes, we have a President on the right side of things. Can Colbert stop his stupid "somewhat confused guy with aviator glasses" bit now?  There is also a rather mixed "President Biden Announces Recipients of the Presidential Medal of Freedom."  John McCain, Denzel Washington, and Gabrielle Giffords being on the list suggests the diversity here.  

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Early this week, there was a surprise 1/6 Committee hearing and the aide to chief of staff Mark Meadows (I prefer Audrey) had some highlights, which particularly added to evidence of guilt [the assumption of many is that this f-ing obvious, but the revelations here underlines that details matter too].  Another thing: she had a pretty serious role for someone born in the mid-1990s.  I'm not just getting old.  She is in her mid-20s! 

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Two other notable things this week.  Well, at least two. "Ghislaine Maxwell sentenced to 20 years in prison for enabling Jeffrey Epstein’s sexual exploitation of teen girls."  And, "R. Kelly, the former R&B singer who had long escaped criminal penalties despite decades of sexual misconduct allegations, was sentenced to 30 years in prison Wednesday for sex trafficking and racketeering."  Justice at times comes.