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. 

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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.  

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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.  

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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.

Burn Pits and More

One of the things available on C-SPAN was a press conference with Jon Stewart, my two senators (NY) and others promoting funding for health care of victims of burn pits. Jon Stewart has campaigned in support of 9/11 workers and this was a logical campaign for him and others who support that. One article notes:

More than 200,000 people who deployed to Iraq or Afghanistan believe they suffer permanent damage from exposure to burn pits, as the military’s notorious garbage-disposal fires are known.

The tricky problem is drawing lines here and that is not really my lane. We need good leadership and people in government that will make reasonable judgment calls here.  Proper funds and services for veterans, especially injured veterans, is clearly a prominent duty for government and society. President Biden, whose son was a veteran, is honestly concerned with protecting the troops.

By chance, the Supreme Court that same morning was debating a state immunity case involving a federal law providing an option for vets to sue state governments.  The person involved himself was a burn pit victim.  While Stolen Seat Guy, Alito, et. al. debated federalism with stupid hypos involving potholes, I think it useful to note what is involved.  

Also, that the text of the 11th Amendment is about interstate suits.  It might even be more limited (about diversity jurisdiction), but at the very least, it is not about suing your own state.  That is, if anything, some "10th Amendment" penumbra. Again, I think the text very well has "penumbras" to provide further limits.  I just want it to be applied consistently and correctly. 

===

President Biden also signed the Emmett Till Anti-Lynching Act.  I have already talked about this.  But, the general message is that -- after over 100 years -- we have a federal anti-lynching law.  And, on Twitter, I saw some people saying things like:

"The act amends the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act and prior hate crime laws to define lynching as any conspired bias-motivated offense which results in death or serious bodily injury."

I'm not a law professor or something, but I read the law.  My general impression was that it did two basic things.  It provided a symbolic statement that the federal government has a law against lynching.  

The very name of the act, some of the support/reaction to it, and President Biden's statement after signing it shows this is important.  Laws often are at least somewhat symbolic.  Many laws have a sort of redundant caliber beyond that.  And, I don't begrudge this AT ALL though maybe a resolution of some sort could have functioned the same way.

The other thing it did was extend the penalty to "lynching" (note the definition; the usual understanding of the term would be narrower) to thirty years.  I am not really a big fan of that.  I think we already have laws on the books with long enough sentences.  From what I can tell, the top penalty for the existing federal hate crime law is ten years.  Since a person is likely to be guilty of multiple crimes, that seems enough for me.  

Still, the symbolism of thing matters. I think you will find various people strongly supporting the law (including black people), who will be wary about extending criminal penalties.  But, again, if the person is guilty of multiple crimes as is, net, I'm unsure what this additional penalty will provide at the end of the day.  How much will actual prison time extend?

ANYWAY, noting the phrasing of what the law does, my question (which I posed more than once on Twitter) is this: what exactly does the law actually do?  Are you saying the existing federal hate crime laws did not cover that?  Law professors and defense attorneys can debate, but I still think the point of this thing is symbolic. It is to say there is now a "federal anti-lynching law," after one hundred years. 

And, that is fine!  I am concerned about various things.  It still is important to remember certain basic things are still true.  Details do matter.  This doesn't erase that symbols and basic messaging does as well.  Senator Rand Paul held this up because he carped about details.  As if there was any real chance that without this law the things he worried about couldn't have happened or some more reforms would have.  Go at that! Do more!

Meanwhile, let us learn a bit of history, and remember that the federal government has a role to play.  "Federalism" goes both ways there. 

===

Academy Awards Slap: For the second time in a row, a woman director won the Oscars.  A movie about deaf people (CODA) won for Best Picture.   Dune won a bunch of technicals and a movie about Tammy Faye won for Makeup.  And, cool actress Jessica Chastain won for her role there.  Part of her message was pro-LGBT and "everyone is loved." Nice dream.  

The big news, however, is when Chris Rock (when did he get to be 57?!) was smacked by Will Smith, after Rock made a stupid joke about Smith's wife (who has a hair condition, explaining her so-called "GI Jane" haircut).  Will Smith then, a bit on brand, won Best Actor for his role as a  bombastic dad.  

He got an ovation (when he won) and did apologize. Rock (shocker) said he won't sue/call him to be prosecuted.  Some did strongly criticize Will Smith for using violence like that.  I basically agree with the sentiment though accept the limits of human frailty here given the situation.  

And, it is somewhat trivial, but what is Chris Rock doing introducing Best Documentary?  Seems a curious call.  Turns out -- the movie won -- he was in Summer of Soul, about the Harlem Cultural Festival.  Oh okay. Makes sense.

SCOTUS: Order List Day

The Order List reported that SCOTUS granted three cases that were among those discussed at the SCOTUS Relist Watch. They are not big "hot button" issues per se, but deal with important matters, including the ability of states to have animal welfare legislation. Michael Dorf and Sherry Colb probably will shrug and note such laws are dubiously symbolic.

Alito for the High Federalists (not Barrett this time) wrote another statement [last time it was religious liberty] aiming to find a good case to target delegation. This is one of the campaigns of the Federalists these days, with special concern here giving Alito's "white whale" approach to PPACA challenges.

Meanwhile, Thomas reportedly is back, if taking part in oral argument remotely. The 1/6 Committee is interested in questioning Ginni Thomas. Let's see how far that goes. And, here is a written statement of one of the Jackson witnesses (supporting). I read her in the past. Sends a "she's so reasonable" message.

Some Arts Thoughts (TV, Books, Film)

Friends: I have been watching Friends regularly (including episodes on DVD) for a few years now. I still find some episodes and parts of episodes enjoyable. Some episodes, for some reason, are not run on the Nick at Nite rotation. They appear to generally be on TBS, which I do not pay much attention to (during the day) and I'm not aware of episodes being skipped on CW/local (NYC) Channel 11.  NYPL now has Season 1 on DVD.

[I also watched the series some when it was on though stopped -- as I recall -- when they had a to me forced bit leading up to the Chandler/Monica engagement.  But, watching it again in full a few years ago brought up various new things.  Plus, the DVDs provide bits, including the endings of episodes that Nickelodeon usually cuts, not on the reruns.]

For instance, in the Fourth Season, the very good "Chandler in a Box" (Thanksgiving) and "Joey's Dirty Day" (which introduces Emily) are not shown for some reason. I was annoyed, therefore, the latter was corrupted on my library DVD copy and I could only watch a few minutes. The Fourth Season provides Jennifer Aniston in particular multiple times to show her comic chops. 

Book: I saw Can We Talk About Israel: A Guide for the Curious, Confused and Conflicted  in the White Plains Library.  It is written by Daniel Sokatch, CEO of the social liberally minded New Israel Fund. The book provides a history of Israel basically from the mid-19th Century (with an introduction referencing ancient times) until 2021.  The second half then covers various disputes, such as Israel Arabs, settlements, and so on.  

The liberal minded Jewish writer has a point of view which basically matches my own without the special Jewish connection.  Still, I think the book as a whole (clearly with a point of view) covers a lot of ground in a fairly neutral way.  And, it is a brisk read with useful asides and an appendix to clarify various terms.  It is a good way to get up to speed. 

[There was a lecture in history on C-SPAN this morning that talked about the 1930s.  It turns out to be from a class at Bob Jones University, but other than a couple vague references, you wouldn't know that was the audience. I also see that university -- infamous for once banning interracial dating --  is in South Carolina.  For some reason, I thought it was in another state.]

I would just note one thing that stands out for me. Settlements are a poison. Now, maybe like some poisons, we are somehow stuck with them. But, they are poison to the peace process.  Settlements expanded like locusts (or wildfire if you want) with hundreds of thousands on a chunk of the West Bank.  There were much fewer in Gaza and Sinai, allowing Israel to get out of each (in a fashion).  How can you have a "two state solution" with settlements dominating a majority of the land in the West Bank?  

Finishing, also one thing not really covered in depth (though it is sorta alluded to) is the controversy about how "Jewish" the  country should be.  That is, specifically, the power of religion in a state that is in theory still one that honors freedom of religion.  And, some conflicts between more secular Jews and those who support more strict rules. This probably warranted its own chapter in the "issue" section. 

A basic issue is marriage.  Check out this FAQ:

With very few exceptions, Israeli civil law does not permit marriages between Jews and non-Jews within the state of Israel. The Israeli government will recognize marriages performed between Israeli Jewish citizens and non-Jews that are performed outside of Israel. Israeli law does permit marriages in Israel between converts.

They do recognize marriages that occur outside of Israel.  It is sort of like New York before Obergefell  recognizing same sex marriages while not actually performing them. And, what about marriages in occupied territories involving people not actually Israeli citizens?  This might be the most blatant case, but there are other issues where the power of religious leaders and religious groups (such as exemptions from military service and extremists in settlements) are controversial.

Academy Awards: Today are the Academy Awards, but (only partially) because of COVID, I have not actually been in a movie theater since early 2020.  I have not seen these movies and only want to see a few (The Ricardos being one that I might like).  As I noted in the past, the Academy Awards used to be much bigger for me.  Now, it is not really for me. 

I saw some of the Tammy Faye movie on DVD.  I think Jessica Chastain did a pretty good job, but got bored with it.  Cyrano (the big nose guy one if this time by a small guy) also looks interesting.  One best film nominee, Drive My Car (first time I heard of it), also sounds intriguing.  But, again, don't know or really care about these films. 

[Jessica Chastain and Drive My Car (for foreign film) both won.]

Perfect Pie: I was searching names and an early film of Rachel McAdams (The Notebook etc.), which also has another favorite of mine, Alison Pill also in a small role, popped up.  The two play the adult two women as teenagers.  This clip, which doesn't easily come up when I tried to attach it to this post via the video search option, is pretty good.  

A comment explaining the clip notes the two adult actors also played Susan in the television versions of the Robert B. Parker novels.  I actually watched some episodes of the series (if not the t.v. movies) and read many of the books (the character continued by others after the author's death).  

The books, and the author wrote this once in an article, was more "macho" than the series.  That isn't too surprising.  It did a better job than the V.I. movie, with Kathleen Turner simply not appropriate (if doing okay) for the role.

Ginni Thomas and Why Thomas Should Resign

A lot has happened this week respecting the Supreme Court and the matters not directly involving their oral arguments and decisions this week warrant separate entries. Thomas didn't show up for oral argument so his illness basically fits into the former. Nonetheless, that too has wider implications. 

[This is an ongoing issue like various things.  I expanded this entry twice already, first as an independent entry, a bit more today.  I realize nearly no one reads these things, but as a whole entries are not merely open Wikipedia entries.  I do tweak them a bit, but extensive change probably warrant a comment for form's sake at least.]

I had an extended discussion about the latest Ginni Thomas craziness (a word that is among those that fittingly explains the reactions).  There already has been extended discussion about her long term public activities and very conservative views.  She, for instance, was mixed up with a woman chosen to be a clerk for a hot button conservative judge (a major controversial Bush43 pick), a clerk who once noted "I hate black people."

This includes a long article and various other coverage.  She was not surprisingly rabidly pro-Trump.  Before Trump won the nomination, she was signed on to be Cruz delegate in 2016. This is but an example of her long involving in partisan and ideological disputes, including in flashy ways.  

“Biden crime family & ballot fraud co-conspirators (elected officials, bureaucrats, social media censorship mongers, fake stream media reporters, etc) are being arrested & detained for ballot fraud right now & over coming days, & will be living in barges off GITMO to face military tribunals for sedition.”

All the material coming out -- it's still coming -- is a bit overwhelming. I won't try here, but it would be useful if people would provide easy to understand bullet point summaries.  And, there is more! Text messages from Ginni Thomas to the Trump chief of staff not only showed various fantasies (such as Biden people going to GITMO, which she hoped was true) but blatant evidence of ongoing conspiracy (at least in intent) to overturn the election.

The disclosure that Virginia Thomas, the wife of Justice Clarence Thomas, had sent a barrage of text messages to the Trump White House urging efforts to overturn the 2020 election brought into sharp focus the conflict of interest her political activism has created — and the lack of a clear-cut remedy.

This is from Adam Liptak, the long term NYT Supreme Court analyst, respected for his general reasonableness.  This sort of thing on some level is tragically "clickbait" that will just make people more angry and convinced the system is corrupt and nothing will be done.  

As with multiple Trump things -- from before the 2016 elections on -- there is a certain "wait, this is totally fucked up" quality to it.  Especially once we are reminded here that Clarence Thomas did not recuse himself from challenges arising from election (and its investigation), even though his vote basically doesn't matter.  

And, as I noted in the original discussion (removed for this) ...

Steve Vladeck reminds us on Twitter that there is actually a federal law that applies to justices too regarding recusing when there is clear conflict though without an enforcement mechanism other than self-policing and in the either impeachment or something. 

He tweeted: "Under 28 U.S.C. § 455, a #SCOTUS Justice is required to recuse from a case not just if they know that their spouse has “any … interest that could be substantially affected by the outcome,” but also if their impartiality “might reasonably be questioned."

Liptak's article notes the justices never quite granted even that rule was constitutional.  Roberts said they would (to quote Liptak's paraphrase) follow it "in their own way."  Ha ha.  Again, people want a "binding ethics code," but how will it bind Supreme Court justices?   The justices thing anything truly binding for Supreme Court justices is questionable.

Roberts in his end of the year report for the federal judiciary (2021) was aware that people were concerned.  The report however basically said "trust us," including (the first of three things cited in the report) for recusals. Trusting people however isn't quite our way.  There needs to be a bigger check than that.  Especially if justices are not even going to grant the confirmation of the limited recusal rule being applied to them.

As Liptak notes, the latest reveals (as if we didn't know enough, including her involvement in "Stop the Steal" rallies; this is not merely about having "views" about things) has led legal ethicists and now apparently some Democrats in Congress to say it is OBVIOUS Thomas can not take part in cases involving 1/6.  

There is a sort of closing the barn door after the cows' are gone feeling to that, but like "waterboarding is torture," firm statements of limits have some value.  There are various cases where spouses are involved in some fashion with matters brought before courts where line drawing is complex. But, Marty Ginsburg and other spouses made career choices to remove blatant conflicts.  Justice Clark resigned when his son was picked by LBJ.

Again, I don't know all the proper lines here. I think Prof. Segall is probably wrong that Kagan did not do enough to avoid conflicts in the PPACA Cases.  There was also a rule of necessity there that has been referenced from time to time.  Without her presence, the Supreme Court would have been split 4-4 (granting the same result).   

I was more wary of hunting buddy Scalia taking part in the Cheney dispute, especially since his vote didn't matter.  Why take part in a matter of some public controversy and cause problems?  He did recuse when he talked about the Pledge of Allegiance and that issue came up.  His vote also would not decide the case, but his absence very well made the oral argument more sedate.  Of the two, the first to me (though a paralegal teacher of mine who because a local judge thought the whole thing silly) had more of an appearance of impropriety.   

On some level, I figured that Thomas is so hardcore that his wife's activities wouldn't really change his vote.  A sort of "horrible person can't be libeled" philosophy, maybe, but seemed true.  Still, appearance of impropriety is a bit more complicated than that.  The two are spouses, "best friends" (to you a label that pops up in the texts), and Thomas repeatedly is involved in the conservative moment, including such things as marrying Rush Limbaugh.

As to his own involvement,  just what that entails seemed hard to gauge from the coverage, though hints (like Ginny Thomas noting to the governor of Florida that he contacted him somehow) do pop up.  

A recent NYT article that I linked above (3/26) notes she "regularly invokes her husband's name" such as noting to Gov. DeSantis, a likely leading 2024 presidential candidate now, that Justice Thomas had contacted him “on various things of late."  There was also one thing reported where she apologized to various conservatives that might be said to be a wider "Thomas family" (including former clerks) for being too divisive. 

Now, some of this is probably puffery, but I have seen discussions about how there is a strong connection between the two with Clarence Thomas often defending his wife.  Again, why wouldn't he, but given her activities, this starts to seem a bit worrisome.  And, it makes you wonder about the exact details after a while, especially with talk of communication with governors and so on. 

They surely isn't some total "Chinese wall" between them.  And, recusal at the very least includes close family connections.  Furthermore, I am not aware of any discussion that basically says that Clarence Thomas' views were somehow more moderate than his wife's political views.  He is smart enough not to blatantly promote them that way, but it is not somehow unfair (unlike in various cases) to basically assume he agrees with them.  

[And More: An earlier summary, including Thomas engaging with conservative groups and making hints about his views on conservative values -- which he does in various interviews too -- is cited here.]

Also, a controversy arose (rightly so) regarding him not disclosing money involving her activities.  This was something that happened a while back, that is, during the Obama Administration. 

I will say again that it is really hard to keep track of all of these things.  I find this true for a variety of things and we should keep that in mind when the average person cannot even name multiple justices, which at this point seems a bit crazy since so many are in the news, including (though I'm loathe to give them that honorific) were appointed in the last few years. 

The general rule I suggest is a good one and the right one for preserving the integrity and honor of the judicial office. And it can't be employed strategically by advocates if the rule is observed in the first place, such that the spouse has already desisted or the judge has already chosen not to continue in judicial office.     

One law professor has a long analysis on the recent dispute and basically comes to the judgment that someone in his position should resign.  There is a certain duty, if perhaps a matter of a Breyeresque balancing test, where spouses to public officials should not do certain things.  He sets forth this in a dignified way, but it is a strong bottom line. 

And, various lower court judges of a liberal persuasion might in some fashion violate the rule to some degree.  I use the qualifier advisedly. The Supreme Court stands out.  It is the "Supreme" Court.  Still, I'm sure issues can be cited.  If a judge has a spouse who is in political office, it can cause difficulties.  Not that this wasn't true in the past somehow (say brothers or something), but the rules are stricter these days. 

I do not think it happens on the Supreme Court level so blatantly as here though it helps that old fashioned views about women in public life results in much less conflict.  Still, Marty Ginsberg was careful, Jackson's husband is a doctor, and Sotomayor/Kagan are both not married.   Breyer's wife also was to my knowledge careful though one of his daughters (a minister) is somehow involved in liberal causes.  I don't know any on the conservative either who are anywhere close to Ginni Thomas.

No one should have to choose between their devotion to their spouse and their duty to the nation. But Justice Thomas has shown himself unwilling or unable to protect what remains of the court’s reputation from the appearance of extreme bias he and his wife have created. He would do the country a service by stepping down and making room for someone who won’t have that problem.

A member of the NYT editorial board "goes there," where only various members of the choir (or in regard to Roberts, sorta a half-serious comment he should retire for the good of the Court) have gone.  I thought Thomas unready to be a justice and his sexual harassment of Anita Hill just sealed the deal. Since then, I thought he was very wrong on various things, but realized he had a personable side (beloved by court personnel) and wasn't merely the devil incarnate.  

I didn't think his confirmation was as illegitimate on some level as the Trump trio.  Kavanaugh was likely involved in a sexual assault as a teenager and other at least boorish offensive behavior.  Thomas was a sexual harassment, but I would not label him a "rapist."  Small praise, but when I said he had some good questions from the bench, someone was pissed off at me.

Still, at some point, a line is crossed.  It has been crossed.  He knew of his wife's activities, but continued to take part in matters involving them.  This is blatantly a violation of his oath of office.  I think it is possible to have an independent judiciary where there are binding ethic rules. States and countries even manage to set up such courts where those in need of recusal can be replaced.  This was even done in a major Latin American abortion ruling. 

Our system has checks.  But, like with Trump's impeachment, there is only a limited will to bring them out.  Even talking about court expansion is put out there as a HORRIBLE thing even from the reform minded Fix the Court.  Checks are useless if they do not have some bite. Some line has to be drawn at some point.   This includes at least being willing to TALK about it.  This is why talking about court expansion is important.

Thomas crossed a line.  It remains to be seen if he actually recuses (people figure he won't; I 'm a bit unsure).  That would be a very limited sign of sanity.  There was a law recently passed that helps disclosure of federal judges' stocks.  Stricter sexual harassment rules for federal judges are being debated.  These things happen bit and bit.  Pressure can effect other things too.  It's all related somehow in not so clear ways.

But, I am going further here.  It is time for him to resign.  Yes, I realize that my voice in the wilderness or any chance of impeachment is minimal.  Any one voice is.  Things have to be spoken aloud all the same.  As the Supreme Court readies to in some fashion continue (see Texas) strip abortion rights, the fact that the body doing it is so corrupt should be bluntly stated.

Thomas' actions here are part of a wider problem with the Supreme Court itself.  Some limits must be put in place for the institution to warrant our respect.  Over our history, the Supreme Court and individual justices have shown varying degrees of self-restraint.  This restraint to many seems non-existent or at least somewhat vague.  But, an analysis of Breyer's tenure at his retirement announcement suggests there really was some concerns (less prevalent now with a 6-3 Court) even when justices had the votes.

This includes reactions from some "median" of the country, including maybe even a few noises from non-Democrats.  For instance, the top Republican on the Senate Judiciary Committee supports televising the Supreme Court, if not willing to put that much political capital into the attempt.  As with Trump, we also have a responsibility to call on people to not just go along, becoming enablers. Some just go "all-in," while some go along.  That is how Trump won and retained power. 

Those from the other end have to push.  We have some power to force restraint even among those with life tenure.  We can laugh, but that has been shown, including because they know without "purse" or "sword," at some point they will be harmed.  And, we are at the point where more than words are appropriate. Some degree of restraint will result.

"Some degree" is not satisfying of late.  Resign.  Investigate.  Impeach. 

 ===

[The below touches upon the Supreme Court, abortion rights, and Thomas, but is mostly an aside involving things I have engaged with in the past. Maybe, it should be left out from here, but sorta want to vent a bit.]

Eric Segall's Supreme Court Myths podcast with various legal minds is at fifty-five episodes.  I have listened/watched many of them, including the latest with the author of The Cult of the Constitution, a book I have reviewed and/or provided a "book summary" for another another website.

Prof. Segall is great in various and is a nice guy.  But, he is annoying and at times full of himself.  He at one point in the interview did a Cassandra routine involving his predictions in the PPACA Cases, including noting the disability community was mad at him.  He skips over that they DID overrule mandatory Medicaid expansion, harming lots of people.

He at one point (he regularly doesn't push his guests and they in return are polite, as was the one here) said he knew something about Thomas, but couldn't say what it was. Oh shut up.  He also suggested Nixon had views on abortion like a moderate Democrat these days.  That is a tad asinine; he wasn't an extremist, but his 1972 election campaign was still anti-abortion.

One other thing. Part of his "I'm so pure" routine is that he thinks both Heller (guns) and Roe (abortion) was wrongly decided.  The guest noted she is wary about the argument in Roe, thinking abortion is a 13A issue, or at least an equal protection issue. She was wary about overturning Heller.  In her book, she granted a right of self-defense.   

Prof. S. suggested that maybe he would grant that there is a right to choose an abortion on equal protection grounds, noting he tells his daughters that it is necessary for their equal place in society.  Yeah. That's why (part of it at least) it is a constitutional right!  If this turns on bad reasoning, based on the state of the law at the time, he should clearly state that.  Anyway, Casey in part rested on equality anyway.  So, you know, pick a damn lane. 

This is only marginally about Thomas, but I wanted to get it out of my system.  Anyway, he's just an example of someone who needs to be smacked around a bit.  He's a bit too full of himself and I think it is in part (though he is mad when he is accused of it) a matter of privilege, being a privileged (repeatedly references his vacations) white male with tenure.

SCOTUS Watch: Orals, Hearings, and Opinions

Okay this week was busy ... the confirmation hearings are handled separately.  The orals were somewhat in the weeds and not too ideologically divisive, but did involve multiple international law issues as Jackson noted the Supreme Court didn't handle it that much.  Next week has one involving a quirky federalism issue.

Order List: The Order List was cited as "quiet" by Amy Howe. The one notable thing was a statement by Alito (with Thomas) involving an "intern at a legal-aid clinic run by a religious non-profit, applied for a job as a staff attorney at the clinic." The non-profit's views on sexuality and his church habits led him to be denied the job. 

Was this appropriate?   Basically, there seems to be an attempt by the religious conservatives on the Supreme Court to find the right facts (this is less troubling than if a florist or donuts shop did it) to provide an opt-out of anti-discrimination laws.  We are not talking about "ministers" here, a teacher at a religious school, or decisions involving who joins a church.  

It's a step beyond.  Maybe, it's tricky.  I might be open for states to have the discretion to give wider exceptions.  I am wary, however, of a national rule that requires the state to have one. I do not trust this Court to apply the right rule. In fact, I think Kagan and Breyer might have went too far in so-called "ministerial exception" type cases.  Or, whatever this is.

Shadow Docket Time:  On Wednesday, a stay request regarding congressional maps for Wisconsin was rejected without comment.

OTOH, a state map, a dispute decided by a state supreme court opinion with a Republican nominee going along with the liberals, was blocked by a per curiam, unsigned shadow docket ruling.  Who was involved? We don't know exactly.  We know that Sotomayor and Kagan dissented publicly. 

This "publicly dissented" business annoys me. The general assumption should be -- at Bloomberg SCOTUS journalist Kimberly Robinson noted this too -- should be silence means consent. It really amounts to a 7-2 opinion.  Now, logically, Breyer would likely have agreed with the two, but who knows?  There might be some reason he in effect wanted to stay silent, including with the nomination of his replacement pending.  

The result according to people I respect to give a good sense of these things is "bizarre" and blatantly wrong on procedure and substance.  The whole thing comes off as gratuitous and makes me more angry at these assholes.  I'm annoyed at Breyer for just silently going along as well.  

Thomas Ill:  Thomas had flu-like symptoms last week and could not go to the oral arguments (three days).  A press release was released that "Justice Thomas will participate in the consideration and discussion of any cases for which he is not present on the basis of the briefs, transcripts, and audio of the oral arguments."  

The press release (dated last Friday) says that he "expects to be released from the hospital in a day or two."  It is unclear that this happened or what exactly happened.  So, not surprisingly, some people wanted more.  

TMZ reports someone asked Breyer about it while he was walking somewhere and he thinks that Thomas is "fine."  Okay.  I actually thought, without knowing more, he is.  Is this mistaken? It might be.  But, making assumptions when 70 something people having medical issues that linger on is standard stuff is in my view not the best call.  They will be made.

And, then on Friday, there was a report that Thomas was released from the hospital.  Maybe, it is helpful to be a bit more transparent, especially when other news raises extreme possibilities. Even now, a request (says SCOTUSBlog, per Amy Howe, my regular source for news here) for more details was denied.  I wonder if we got anything off the record. 

(SCOTUSBlog noted: "Justice Clarence Thomas was discharged from the hospital on Friday morning, the court said."  As is often the case, this public message to reports was not posted on the website.  Then, Amy Howe wrote a more detailed -- though there aren't many -- analysis.)  

[Ginni Thomas material moved to a separate entry.]

Opinion Day: Two opinions on Thursday, only one justice dissented between them, but one is an issue of some importance.

Censure: Stolen Seat Guy had a short unanimous opinion that basically is a form of error correction.  CA5, the Southern circuit that gave us such charms as the SB8 litigation, gave a wide protection to free speech involving censure.  It is unclear how often this sort of thing actually comes up.  

Furthermore, as is regularly the case in the Roberts Court, the actual thing decided was limited. As SCOTUSBlog summarizes, the nine held: "a member of a community college board of trustees does not have a viable First Amendment claim arising from the board’s purely verbal censure of him."  

The opinion notes that a proper challenge was not made to the non-verbal restrictions such as a limited inability to run for board office positions or access to certain funds.  In some other case, the opinion said a stronger censure with teeth might be deemed unconstitutionally bitey.  Reasonable.

Death Chamber Religion: To quote SCOTUSBlog again: "Ramirez v. Collier, the court ruled 8-1 that a Texas death-row prisoner is likely to succeed in his claim that he has a right to have his pastor audibly pray and physically touch him while he is being executed."

[This is a longer business with sixty pages of opinions. Both the majority and dissent each are about 22 pages. The concurrences around ten pages combined.  The headnotes are five pages.]

This was a case that addressed a general issue that arose repeatedly and after around a handful of shadow docket opinions (going various ways) on the topic, they finally took the case on an accelerated basis for full review. And, then -- including as executions continued (though a few were held up) -- took months to actually decide it.  One wonders why.

Roberts wrote the opinion. Sotomayor wrote a short concurrence to talk about the right of prisoners to bring claims (a major issue for the dissent).  Thomas leads with the details of the crime and the idea Ramirez was abusing the system.  But, the general question here is not unique to him. There are many prisoners with serious religious concerns and line drawing will arise.  A case to provide clarity is a basic role for SCOTUS.

Kavanaugh (partisan lying rape-y guy who likes beer) wrote a bit longer concurrence to talk about how complicated the issue is, including (Jackson's assurances aside) that "policy" decisions were made by the Court here.  And, yes, the issue is complicated, and the prisons should have some discretion.  The presence of ministers and vocal prayer seems generally okay.  The touching part to me was more iffy.    

[A bit of inside baseball. Kavanaugh is the only one without a signed opinion.  There is a reasonable chance he wrote at least one of the per curiams.]

The issue here is largely statutory since there is a federal law protecting rights of prisoners and spelling out the rules of prisoners bringing challenges.  There are also constitutional concerns overhanging it all, including equal protection of all religions and religious liberty.  Religious liberty involves some action, that is part of "exercise," and dealing with that in the modern administrative state is a tricky issue.  

There are many cases where claims to me seem inappropriate, including when it wrongly clashes with discrimination laws in public accommodations.  I also am wary about evenhandness. We need more than an assurance something is "traditional forms of religious exercise" to cite the opinion today. The weighing here is also detail specific. An evenhanded application can be tricky.   As to that, I'm still not completely sure the rule against touching while someone is being executed is unreasonable.  

Still, this all seems fairly reasonable, and the opinion leaves some ground for states to balance things out and use different rules.  Thomas does not seem to be against the basic substantive balancing.  His opinion is more regarding abusing the challenge process.  I am a bit surprised neither Alito or Barrett, for different reasons, did not concur separately.  The time taken might be a matter of negotiation between the eight.  

More Shadows: To quote Jimmy Hoover of Law360 (tweet), after the two opinions dropped there was a miscellaneous order.  His summary: "Supreme Court temporarily blocks New Jersey from withdrawing from the 60-year-old Waterfront Commission Compact with New York, which polices the shipping port shared by the states."   

Steve "Mr. Shadow Docket" Vladeck notes this action in the original jurisdiction docket is "remarkably rare," if not perhaps "especially controversy."  The matter is of local importance.  If it is notable, and it surely seems to be, New York deserves a damn explanation.  

I saw someone said that they should explain themselves whenever they make a ruling. That is simply too extreme. They make lots of run of the mill rulings, including not taking thousands of cases. But, they only single out a few miscellaneous orders.  They can explain themselves here.  

Conference Day: The justices (and whatever some should be called) met for their fairly usual Friday conference today. Order List on Monday.  They also announced (as they now regularly do some time on Friday regarding the upcoming week)  will be one or more opinions next Thursday.  

Shadow Docket: Biden Wins! As basically expected, since at least up to a point they are wary about being insane when it comes to vaccines, the Supreme Court 6-3 granted President Biden's request to overturn a lower court hold up regarding making vaccination decisions as commander in chief.   To wit:

The district court’s January 3, 2022 order, insofar as it precludes the Navy from considering respondents’ vaccination status in making deployment, assignment, and other operational decisions, is stayed pending disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought.

Kavanaugh provides the sole explanation about a page and a half long which (reasonably) references the usual regard giving to military discretion and all that.  There is little reason why the rest of the Court could not basically say the same thing, more or less.  

[Kavanaugh didn't provide some absolute rule though did speak of "extreme" respect for military decision making.  Note the Biden Administration didn't say vaccine exemptions didn't apply to the military.  They made a more limited argument. Plus, we should be wary of some absolute rule.  The military can make mistakes.  But, a high test is valid.]

As Ian Millhiser noted, the Supreme Court should have clearly sent a message here.  The shadow docket, however, sends vague ones, especially when (like here or in the NY/NJ case) they provide absolutely no explanation.  This will help invite the usual suspects to continue to cause problems, if doing so a bit more carefully.  A good case can be made that a line was crossed here that warranted something more. 

Thomas without opinion dissents. Alito (in part comparing this to the case just decided not involving Navy operations as compared to a limited context involving executions, that would not actually stop an execution) with Gorsuch dissent.  Thomas dissented in that case, so that might be one reason why he doesn't go along.  Amy Howe in her summary notes that even Alito hedged somewhat on the reach of his argument. 

And, yes, I'm going to say 6-3, even if we only know on the record the opinion of four of them. 

Ketanji Brown Jackson Confirmation Hearings

I was going to originally put this within a discussion of the Supreme Court, but there is so much going on there, it deserves a separate entry. And, given my interests, probably I can write a lot about them. I already wrote one.

For instance, I think the Republicans (at certain times) touched upon things worthy of comment. They just did it in such a back-assward, biased way that it is hard to take seriously. Still, they are serious issues, and as Amy Howe notes in one of the summary podcasts at SCOTUSBlog as a general statement, it's useful they are brought up. 

These sorts of things are theater with some kabuki. My basic sentiment there in part is "yeah, so what?"  Hearings basically became well used in the age of television.  We had some famous hearings (think Joe McCarthy or against comic books and organized crime) in the 1950s. Confirmation hearings of justices became big things in the 1980s though were present in various ways with some flash (think Fortas) before then.  

These things are not intended to be neutral fact-finding enterprises. A lot of that sort of thing happens behind the scenes. The nominees submit in depth questionnaires and documentation. Senators (this too is fairly recent) meet them in their offices.  The public hearings are often used for talking points and to engage with nominees about the senators' hobbyhorses. And, yes, there is some grandstanding and bullshit.  That too is part of the deal. 

The Republicans were, in various degrees, assholes.  Hawley both rounds basically was quite sure she was soft on child porn since allegedly, among her many cases, she had soft sentencing rules in a few situations.  Other Republicans covered this but not as dog with a bone.  And, various people, including conservative ones, refuted it as unfair and bullshit. 

Cruz was his usual troll self and Tom "the Narc" Cotton wasn't much better, but did so with a bit less sleaze.  The others were varying degree asshole, including Graham, who in his second round really went off about how unfair Democrats were unfair to Kavanaugh.  John Kennedy did his Mr. Haney (Green Acres) routine on unenumerated rights, which clearly was code for certain types of liberal privacy rights.   

These issues should be debated.  Even the question about where "life begins," which many saw as asinine. But, legally, that will be an issue in various instances.  How it was done left a lot to be desired.  Sen. Blackburn cited in passing some comment Jackson made about people having biases as if it was some horrible claim when it is totally honest. 

The Democrats were varying degree useful though Ossoff was curiously limited in his questioning and Booker spent much of his time like a happy puppy about how exciting it was for her to get to SCOTUS.  America is great!!!!!   Whitehouse basically focused on his dark money jeremiad.  Some argued Dems just left her swing in the wind and thought that wrong. The "Dems are just losers" line is tired and helps the other side.

Her criminal justice work was praised a lot.  We didn't get too much really about her overall approach (seems more pragmatic, case specific) and views on various things (like Ossoff had a brief free exercise question) we will basically see first when she is a justice.  She had a lot of boilerplate about staying in lane, limiting the reach of international law (as a case was being heard at that time by SCOTUS), and saying she won't make policy.

I do wish the Democrats covered somewhat more ground on certain issues, these hearings providing a chance to set forth a general view of the law. So, when Republicans broad up trans issues and latched on her inability to cleanly define "woman," Democrats could respond to some degree.  Kennedy made trans issues into some substantive due process issue.  It really is an equal protection issue.  

All the same, like during the Bork/Kennedy hearings, including as cited by then Sen. Biden, SDP and 9A issues do matter. It is not really "non-textual" and either way, people (including "parental rights!" conservatives) accept they exist.  While some people was paying attention, it might have helped to have one or two senators spend more time on that. 

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I appreciate those who do not like this sort of thing.  It could be done better.  I think the questioning should be split between senators (it is a political/partisan ceremony) and an assigned interrogator.  There is some grandstanding.  But, that gives us a sense of who these people are.  And, we do get some sense of the nominee.  The public does.  That is important. 

One law professor wanted to hear about her judicial philosophy.  His summary left a bit to be desired, noting Roberts relies on doctrine.  Without more that is laughable.  It only reaffirms the argument of people like Sen. Coons that labels can mislead.  

I think the question is at least somewhat fair though probably as a district court judge she did not really develop as much of an in depth theory as a long term appellate judge might have.  The chart put out there about all of her "boxes" (public school, district/appellate judge, sentencing commission and so on) aside, she has barely been an appellate judge.  She wrote her first opinion there not that long ago.  She did note:

"I will say that I come to this position, to this moment as a judge who comes from practice -- that I was a trial judge and my methodology has developed in this context. I don't know how many other justices other than Justice Sotomayor have that same background."

This suggests to me a type of pragmatic vision based on the facts.  Other than that, she dealt with the usual platitudes about being neutral to parties though seems to have in whatever way determined some originalist sounding talk would sell well.  

Since Republicans didn't latch on to it, I guess her opinions really do not show much of a special interpretation philosophy.  This was sorta used by Republicans against her, including in testimony from a former Kavanaugh clerk.  I question, however, really how much it matters.  Still, I think -- like Sotomayor's stronger than some probably expected voice on SCOTUS from the left -- we will have to wait some to get a full sense of her style. 

Along with her limiting the reach of international law (and the to me wrong comment that she couldn't think of a constitutional provision where it factors in -- the Supreme Court clearly says it does in the 8th Amendment context surely)  and other white lies, I don't find that appealing.  But, I know the confirmation dance.  

Thursday was witnesses, including a first step to show she is mainstream in her decision-making. Republicans had a bunch from central casting. An old lady against abortion.  A black woman for conservative religious liberty and against critical race theory ("Kant is anti-enlightenment").  A Southern Attorney General who (asked at least three times) wouldn't say Biden was "duly elected."  A Kavanaugh clerk to vaguely say her legal views are iffy. And, an anti-child porn activist to continue that smear.

Now, there is a break, and the Judiciary Committee will come back at the end of the month.  Votes will take place in April it seems.  We will see, as we handle other things, if anything else comes up of note here.