America Is Sick But We Must Endure

Even with ten days of early voting, we were busy at the polling place. There was a small glitch with the scanner but overall things went smoothly technically. The equality amendment was passed in New York.*

The country as a whole decided that Trump and Republicans were a good idea. I'm horrified and sickened by my country. We now wait to see if the Democrats can take the House. It's possible and oh so essential to have SOMETHING. 

I will first say a big "fuck you" to the Supreme Court. Six justices helped enable Trump by ... well the assumption now is ending any chance for a trial. Based on bullshit. Utter bullshit.

The media did not help in a variety of ways. Nonetheless, the ultimate choice was up to the voters. 

(From Good Talk by Mira Jacobs. The book from five years ago is a "graphic memoir about American identity, interracial families,  and the realities that divide us.")

The negative (they will say "realistic" but don't think that is all they are) people who assumed or in somewhat sanctimonious Eeyore fashion warned us about the result will be self-satisfied as they deep down in a fashion are made to be. 

I don't like that mindset. Yes, some people on some sick level feed off that.

My realistic assumption was that there was a good chance the Democrats would lose the Senate. I thought they would win the House (still can) but it was too close to be sure about. 

And, personally, Trump looked like a loser. Too close. But, if things go as they seem to be leaning, it would be something of a surprise. That's all details.

Our country is sick. It is not over. We will endure. There is no other choice for those who live on. We endured many things. Still. I do wonder how we will. 

Yes. Some people won't endure. Or will have more suffering. The election will hurt many people. 

Here and internationally. The Ukraine. Trans people. Women who need health care. Those harmed if ... RFK fucking Jr. has a significant role in our health system. I can but won't go on. 

Some level of sanity is with us until January. Biden and the rest have to spend every last moment trying to salve the most they can. 

They can't just submit. Use every last bit of power until the very end. One thing is to commute every death sentence. You have to do that. If not, you are dooming people to the needle. You have the power. 

I still do not want to believe it. Life still happens. We have to live it. We shall see how it goes but we have to continue to do what we can. One day at a time. 

==

* It doesn't really matter but we had some city ballot measures. I opposed them overall as misguided mayoral measures and for other reasons. 

It looks like only the last one didn't pass. The last one involves minority businesses, film permits, and city records. The kitchen sink nature of the measure helps show why I opposed these things.

Still, I had to laugh that a measure meant to promote minority businesses was the only one that lost. Of course. Fits this election. And, yes, I need to keep my sense of humor. 

SCOTUS Watch: Order Day

While we, as noted yesterday, on in the "final countdown," SCOTUS is back to remind us how the courts on on the ballot. The oral argument today might have been dull but they can't avoid that.

Today's Order List, which is (as usual) not too fascinating has various reminders of this fact. Some lower court cases are disposed of with reference to SCOTUS cases involving administrative law and gun regulation. (Amy Howe has more.)

Court personnel and the federal government's position in these cases are significantly affected by who controls the other two branches of government. 

Jurisdiction is noted in two cases involving the use of race in districting with oral argument pending. Election cases are one of the few areas where Congress restricted the Supreme Court's ability to pick and choose what cases to take. Liberals regularly hold their breath in such cases.

One case involving immigration law was granted. Riley v. Garland might have a different caption (name) when the case is handed down. It is likely that whoever wins that we will have a new attorney general.  Let's see how this one is judged.

There is also a short per curiam that sends back a case involving intellectual disability and the death penalty to clarify what the lower court meant. Thomas and Gorsuch would have taken the case now. The case had been "relisted," suggesting some complications behind the scenes. This result feels like a compromise that kicks things down the road.  

===

Today's Strict Scrutiny Podcast talked about Alito and the princess, which is the stuff they (especially Meghan Markle fan, Melissa Murray) LIVE for. One wrinkle is a possible violation of the Titles of Nobility Clause. Sure, why not? 

Steve Vladeck talked about presidents and justices in his weekly substack. And, what is a Vladeck post without a helpful spreadsheet?

President Biden had one justice vacancy to fill while Trump had three. Let's not give him two more.  

Final Countdown

Final day of early voting in New York. 

I have some final remarks here.

ETA: Election Day is now a holiday in New York. 

Checking, one AI service said the law was passed in 2020. If so, the recent times I recall the local school being opened must have been for primary elections. 

TV: Time Marches On

I came upon an episode of Wizards Beyond Waverly Place. 

The original ended twelve years ago. Justin returns in a leading role with various family members having guest appearances. Alex (Selena Gomez) pops up in the first episode. The series starts with him being 34, the same age as the actor. Time flies. 

I liked the original after it got going with a subplot with a vampire family (the daughter later becomes another character in Good Luck Charlie; the actress is Dr. Christine Blasey Ford's -- yes that one -- niece). 

The first episode of this series was a bit forced, but the other took a while to get into a groove. 

I saw Emily Osment on After Midnight. She did the comedy panel stuff well enough though did come in third per the somewhat arbitrary point system.  

Emily had a guest appearance on Friends in a Halloween episode as a cute trick-and-treater with a long name. She was best known by some as "Lily" on Hannah Montana, which is about as long ago as Wizards. She was also in many other things, including a serious role (with a downer ending) on Mom.

She is all grown up and on a sequel to a prequel of Big Bang Theory. The show is on so much on syndication (seems less so of late) so I caught it from time to time. That show ended in 2019 though the second prequel starts in real time in 1994.  

I have only watched a tiny bit of the prequel, which had a good run. In the latest, she plays an older woman who marries the older brother (who is around 18). The "first marriage" in the title is quite true according to Big Bang Theory, which once noted he married and divorced twice.  

Hallmark Channel is the place to really feel old. A variety of old television actors from at least back to the 1970s have been in films over the years. 

The early morning duo of Petticoat Junction episodes on MeTV included the "last" episode of the sixth season and the first episode of the seventh. 

The curious nature of the season finale is that the mom is still in the opening credits even though the actress had died earlier in the season (they never address it except by cutting her out of the credits). 

Wikipedia explains the episode was pre-empted and time-wise (as shown by the youngest daughter still being pregnant) fit in near the beginning of the season. They sort of overdo that baby bump. 

The other surprise is that the black actor [who is light-skinned] who replaced the season regular on Hogan's Heroes pops up in a guest appearance. The actor is the one surviving character from the main cast. He guest-starred before serving in that late-season role.  

(The Russian spy who guest starred in some episodes is still alive too per Wikipedia.) 

Was there another black actor on the show?!  

South Carolina Executes Richard Moore

We earlier discussed how the South Carolina Supreme Court upheld its death penalty. 

Two justices argued the firing squad violated the state constitution and one justice added that so did the electric chair, which is the default if someone does not pick. The state then executed Freddie Owens.

Richard Moore was sentenced to death for the murder of a store clerk during a robbery.* His lawyers have alleged racial bias in the selection of the all-white jury who convicted him in 2001. 

The Supreme Court rejected a final appeal arising from these allegations without comment. This is typical. And, as usual, I think the end of a person's life warrants a brief statement. Well, at least, they got it out of the way the day before. 

Chris Geidner discussed the request, in part noting:

In Moore’s request, his lawyers noted that he is the only person remaining on the state’s death row sentenced to death by an all-white jury.

A delay of over twenty years also raises problems discussed by Justice Breyer in his dissent in Glossip v. Gross. COVID and lack of execution drugs helped to delay executions in South Carolina.  

A state judge rejected an attempt to have consideration of commutation done by someone other than the governor because of concerns of bias. Some states, including Texas, puts the responsibility in the hands of others. The president makes the decision themself.

Moore had a history of robbery but did not bring a gun to the store. He obtained it from the clerk. This is one of those cases where it is quite debatable if the person (assuming the penalty is just) is a member of the "worst of the worst" who deserves to be executed. 

Toss in due process concerns, this is an unjust execution, which is also likely unconstitutional.  

==

Alabama executed two people using nitrogen gas. 

There was clear evidence the first time was problematic. The second might have been relatively speaking a better attempt. Still was iffy.  

==

* This article provides some details of the crime including the absurd fact that the clerk had three guns. The defendant stole over $1400, which seems like a lot of money. It suggests premeditation though he was not armed when he went in. 

The article also notes -- this is common -- multiple jurors who sentenced him to death are now opposed to the execution. Jurors decide things based on the evidence available and for a limited purpose. They are not there to judge if now -- twenty years later -- things have changed and a commutation is warranted. 

Many probably figure their decision is not final. This has been flagged by some defense attorneys as worrisome since it provides jurors more incentive to sentence people to death. 

Juror statements might be helpful to determine if new information would have changed their mind. For instance, if new evidence is found that arguably should have been available and might have changed the final result.

OTOH, many people second-guess their decisions. 

SCOTUS Watch

SCOTUS had no oral arguments. They were somewhat busy with orders and November began with a conference which will bring orders on Monday. 

The Supreme Court on Monday allowed a federal law intended to standardize anti-doping and safety regulations in horse racing to remain in place while a challenge to that law plays out.

Amy Howe dealt with the somewhat confusing procedural dynamics. Bottom line, only Justice Jackson (though Prof. Steve Vladeck on Twitter said she was right) openly disagreed. 

The move suggests that the justices are interested in taking the case. If so, it can have some significant effect on regulatory choice. There was some bipartisan support for this particular regulation with Mitch McConnell among those saying it has made things safer overall.

Gorsuch dissented from the decision to leave Kennedy on the ballot in Michigan. In a short paragraph, he indicated that he largely agreed with the three conservative judges in the 6th Circuit who would have ordered Benson to remove Kennedy from the ballot.

Robert Kennedy Jr. ended his campaign for president and supported Trump. Kennedy then tried to game the ballot process to keep himself on the ballot in states where it would help Trump and remove his name where it would not. 

The Supreme Court turned down two attempts out of Michigan and Wisconsin, two important "blue wall" swing states. Gorsuch alone dissented in one case.  

The lower courts partially were dubious about Kennedy's two-faced approach. Why would it be coercive to force him to be on the ballot only in certain states?  Also, he waited so long, it would be problematic to do so with voting already starting. 

The Supreme Court on Wednesday temporarily blocked an order by a federal judge that would have required Virginia to return more than 1,600 people to the voter rolls. U.S. District Judge Patricia Tolliver Giles found that since early August the state had canceled the registration of more than 1,600 voters – at least some of whom were U.S. citizens eligible to vote – under a program intended to remove suspected noncitizens from the voting rolls.  

The justices, with neither faction explaining themselves, split ideologically 6-3. Steve Vladeck explains how this is another troubling exercise of the "shadow docket." Technically, only the three liberals dissented on the record. 

OTOH, if a conservative wanted not to be counted as going along, they shouldn't do the mostly (especially here, where the ideologically split vote looks bad) useless act of voting in a way only the justices and their clerks know about.

The lower court decided the other way. The stakes warrant an explanation. Yes, people can still register if they have the right information, though it can be burdensome (one person missed hours of work). People who voted by mail and do not realize there is a problem might be out of luck.

Voting is a fundamental right. A federal law was passed to protect erroneous deprivation near an election when there might not be time to fix false positives.  The balance should go to the voter here.

Cornell West   

Meanwhile, without referring it to the whole court, Alito disposed of a request by Cornell West to have polling places in Pennsylvania have signs telling voters they can write his name in. Sounds a wee bit desperate. Alito: no flag for you. 

West is on the list of people who will be counted if voters in New York write in their names for president.

Friday Night Fun 

I thought we were done but they decided to drop another order apparently after 6 P.M. on Friday. 

They refused a GOP request to narrow options for Pennsylvanian voters who botch mail ballots and try to vote on Election Day. This time, there is a statement by Alito (the circuit judge; joined by Thomas and Gorsuch), explaining that though the case addresses a serious issue, the specific claim doesn't work. 

So, the justices can explain when they wish. 

Other News  

SCOTUS dropped a media advisory regarding the limited sitting in a trans rights case. The Trump Administration would have a different take. 

Ready for 2025? January argument time!   

Right now, the Supreme Court is on the ballot. 

NYC Schools Celebrate Diwali

Halloween is "All Hallows' Eve." November 1st is also known as All Saints Day, a holy day of obligation for Catholics. It is also my younger brother's birthday but he did not go to Catholic school. 

Also, for the first time, New York City’s public school students will have Friday off to observe Diwali, a holiday celebrated worldwide by Hindus, Buddhists, Sikhs, and Jains. 

Diwali, also known as Deepavali or the “Festival of Lights,” is a celebration of light over darkness.

The day is often celebrated on different days. Holidays provide a specific day to honor things. The school holiday is an additional way different groups have been honored over the years. 

For instance, the schools are off for Rosh Hashanah. We have had more days added in recent times, including Juneteenth, now a national holiday. In the process, what used to be more Christian and European-focused has become more diverse. 

We honor different groups, including religious traditions, partially through the secular holidays we celebrate. The Supreme Court has recognized this is appropriate if done in a properly secular way (e.g., Lynch v. Donnelly). 

Some of these opinions probably allow practices that are not truly religiously neutral. Nonetheless, the overall principle is appropriate. The more diverse we practice it, the less likely we will wrongly de facto establish certain religions or favor certain groups.  

Diverse respect for different cultures honors equal protection and religious liberty values. Vice President Harris symbolizes this:

Harris was born to a Hindu mother from India and an Anglican father from Jamaica, was influenced by strong Christian women around her, and later married a Jewish man from Brooklyn.

A final matter that comes to mind when someone flagged it in a comment online responding to my reference to this subject elsewhere is third-party effects from religious practices.

Jay Wexler wrote an interesting book on how religious practices often are not environmentally friendly:

Wexler studied a wide selection of religions on his trip. Throughout his book, he reveals the unnoticed ways that religion conflicts with the safety of the environment. Fireworks, for example, are widely used in festivities such as Chinese New Year celebrations, the Muslim holiday Eid-al-Adha and the Hindu festival Diwali, but they are more corrosive to the environment than many expect. Wexler uses humor to tackle these issues in his book.

He is generally supportive of a wide breadth because of the importance of religious liberty. His somewhat libertarian views (Wexler appears generally liberal) are also shown in a separate book where he discusses marijuana usage.  

I think he might have been a bit too indulgent. We should respect religious beliefs and practices. Third-party harms do warrant some limits. 

Schools honoring Diwali do not raise such concerns. It is a reminder of the diverse religious beliefs in this country. And, yes, to toss in another topical issue, one party is more supportive of that these days. 

We can also recognize Wiccan and related nature-based religions which might find Halloween a worthy day of respect for more than going door-to-door (trunk-to-trunk, per a practice I recently heard about) for candy and other goodies.  

Trump Is Among Other Things A Fascist

Steve Bannon refused to comply with a congressional subpoena related to the 1/6 investigation. Traditionally, this resulted in no real consequences. Sometimes, we had years of litigation. This happened here too. But, he eventually lost and served a few months in prison. He was released today.

I hope this will serve as a small deterrence to future stonewalling. It takes a lot. The whole branch of Congress has to agree to hold the person in contempt. The executive has to agree to prosecute. There is theoretically inherent contempt power for which Congress can act on its own. People talk about it. Good luck with it actually happening.   

We still have much to learn about and address regarding January 6th. The greatest unfinished business involves Donald Trump. We are in a crazy situation where the guy is running for president and has a reasonable chance of winning. I hope he does not. I think he will not But, we shall see. 

Multiple people, including academic experts and his former Chief of Staff, have labeled Trump as a fascist. The term fits even if it is one of those terms like "racist" which some only want to apply to other people. What more do we have to know about Trump before people are not wary about the usage? 

We can summarize the qualities of fascism:

• Extreme nationalism
• Cult of Personality
• Militarism 
• Ethnic Divisions 
• Use of Mass Movements (Negative Populism) 
• Denial Of Civil Liberties 

What part doesn't apply to Trump?  Yes. My mayor, currently indicted for federal crimes, Eric Adams associates "fascism" with Hitler. Adams is a Democrat and Kamala Harris supporter. 

However, he wants to downgrade how bad the guy is, including as Trump has a NYC rally that is so bad that Republicans running for office in close races are running for cover.  A rally that took place at the same location as a 1939 Nazi rally. A bit too on point. 

Trump isn't Hitler, however, so Eric Adams doesn't want to call him a "fascist." Okay, dude. 

"Fascist" is one of those words that are controversial. You can find people quite unpleasant without them being a fascist. But, at some point, we need to accept and remind people about how particularly bad some people are. Liz Cheney is not supporting Kamala Harris because Trump has a bad tax policy. 

Anyway, among other things, I'm tired of, I'm tired of Eric Adams. New York City deserves better.