55 Steps

 

An excellent character study involving a significant ruling involving the right to refuse drugs while civilly detained. More details here. 

SCOTUS Watch: Past and Future

Scalia/Court Expansion 

The tenth anniversary of Justice Scalia's death recently passed. Volokh Conspiracy had multiple positive accounts. A Fix the Court email update I received was more negative. 

My position is also largely negative. See here. I linked a VC post, and "Joe" says more over there. 

Scalia's death led to a de facto "packing" of the Court when Republicans refused to even have a hearing for Merrick Garland. They then rushed (one month) the confirmation of Barrett. 

Raw political hardball mixed with hypocrisy.

A minority argues that the overall history here warrants court expansion. Only a small number of Democrats in Congress openly support this. Some observers are loudly supportive. 

The FDR court "packing" scheme is cited by both sides. Did it help change the law, or is it generally a sign the whole thing is a bad idea? 

FDR'S Gambit by Laura Kalman provides a detailed account while near the end drops an opinion that it was helpful for FDR's ends.

I found the book a tedious slog, without ignoring it is also an impressive work of scholarship. There is a lot of unnecessary detail without overall seeming to add much. I finally gave up reading the book straight through around 100 pages in. 

There are, as is usually the case, some interesting and informative details. Overall, however, I don't think I learned much new about the bottom line. 

The book ends up somewhat agnostic if dubious about a court expansion proposal today. The book was published in the middle of the Biden Administration. 

Ultimately, an expansion proposal should at least be pushed as a negotiation tactic. I have discussed this in the past and won't repeat myself here.

We now have evidence that Alito will retire soon, maybe in a few months. A 6-3 Court with four (and I think Thomas will resign before the end of Trump's term) younger conservatives nominated by Trump is just appalling.

Something major has to be done if the Democrats get a trifecta. A strong expansion faction might make it more likely that we will have serious reforms passed. 

SCOTUS News

SCOTUS dropped a schedule for the final oral arguments.

It also "may" (nearly always means they will) announce opinions on the 20th (when they officially come back from their break), 24th (they start hearing orals again the day before), and 25th (my sister's birthday). SCOTUSblog will have live blogging. 

For whatever reason, Oyez.com still doesn't have the opinion announcements from last term. There is a new AI-aided approach to provide video. Fix the Court has more, and its comments are basically on point. 

John Oliver's dog justice videos were good, too. 

Holiday

Okay. So, next Friday is when the justices officially come back with a conference (surely) and opinion announcements (probably). 

Tomorrow is a holiday. A historian is wary about the "monarchial" practice of celebrating presidential birthdays. Her piece is generally on point. 

The name of the holiday varies, including the use of punctuation. On the federal level, it is George Washington's Birthday, which was originally February 22 (using today's dating), so it is somewhat early to celebrate it on the 16th. 

SCOTUS Watch: More Executions

Ronald Heath

The Supreme Court, without comment, rejected a final appeal on the day Heath was scheduled to die. 

The result is probably justified given the law in place. Still, before a final sign-off for deprivation of life, an explanation is warranted. 

And a liberal using yet another criticism of the lethal injection procedure (cited in the final appeal) to flag its problems would have worked. Having been a Sotomayor statement about that in a while. 

He was executed later in the day. 

Florida continues to execute people for decades (1989) old crimes. I continue to find that problematic, constitutionally or otherwise (see Glossip v. Gross, Breyer's dissent). 

Heath's brother pleaded guilty and received life imprisonment. They murdered a travelling salesman in a robbery. Some legal claims:

The Florida Supreme Court denied appeals filed by Ronald Heath last week. His attorneys had argued that Florida corrections officials had mismanaged their own death penalty protocols, that the state's secretive clemency process blocked due process, that Heath's incarceration as a juvenile stunted his brain development, and that jurors did not recommend the death penalty unanimously.

[The unanimous jury issue has been a repeat loser, though on some basic level it does seem wrong.] 

One anti-death penalty discussion notes that Heath's brother was the triggerman. Prosecutors said Ronald Heath also murdered someone else. Plus, at sixteen, he murdered someone with two others. 

Heath was released early for that previous crime, which is understandable since he was a teenager. He deserved a long prison sentence. It is doubtful he would continue a life of violent crime in his mid-60s. 

An execution over 35 years after the crime, at any rate, is a dubious matter. Such dangerous people being incarcerated, at least during their violent years (not sure about the mid-60s), is justified. The lottery capital punishment system is not.

Kendrick Simpson 

Simpson murdered two people twenty years ago. 

The details are aggravating. The judge claimed he showed "no remorse." 

Simpson’s lawyers told the board that Simpson was sexually abused as a child and his mother was addicted to crack cocaine. That trauma continued into his adulthood after someone shot him five times in New Orleans in 2004, leading to 16 surgeries. 

The Oklahoma Pardon and Parole Board voted 3-2 against recommending clemency. So, even here, there was only a borderline rejection of not executing him.

His final appeal to SCOTUS flagged alleged due process problems with the state not properly hearing certain claims. Same deal: denied, no comment. 

Oklahoma executed him. 

ETA: Also, in death penalty news.

Biden commuted the sentences of 37 of 40 people on federal death row. Three infamous mass murderers are still on death row. 

Trump then ordered twenty-one to be sent to a supermax prison. A Trump-nominated judge ruled that this was done without proper due process. 

Various others might be prosecuted for state capital crimes. This would be quite expensive and likely lead to years (if not decades) of appeals. 

Another person (not of this bunch) was sent to a state that executed him last year. The Trump 1.0 Justice Department waited until mid-2020 to early 2021 to execute people. So, it might be a while now, too. 

Super Bowl: Midway

The Pats got here with a 10-7 game. It's 9-0 (Seattle) at halftime. Hopefully, Seattle will do one of their patented second-half scoring streaks. The Bad Bunny halftime looked good. It was largely in Spanish (Lady Gaga sang in English). Why not use subtitles? 

ETA: To emphasize the ethnic feel. They scored a bunch in the 4Q.

Storm at the White House

A narrative history of the events of January 6th is still hard to read. The book provides diverse voices, including police, members of Congress, and even some insurrectionists ("protestors or riots" in the author's words, but multiple members of Congress, including Mitch McConnell, called it a failed "insurrection"). The violence was horrible:

Weapons [used against the police] included hammers, rebars [metal bars], knives, batons, and police shields taken by force, as well as bear spray [meant to stop a 500-1000lb animal] and pepper spray. Some rioters wore tactical gear, including bulletproof vests and masks.

An officer later described a fellow officer being tasered. The officers were also hit, gassed, choked, and more. Four officers were so stressed out that they committed suicide. One died of "natural" causes. 

Rep. Mullin (R-OK), after Babbitt was shot:

He [U.S. Capitol Police officer] was the last person in the world that ever wanted to use force like that. He wasn't wanting to do that. I know for a fact, because after it happened, he came over. And he was physically and emotionally distraught. And I actually gave him a hug. And I said, "Sir, you did what you had to do."

(He later voted to object to the electoral votes, the debate over which was ongoing when they had to take a break because of the storm at the Capitol.)

People were prepared for battle:

US Park Police officers reported seeing "numerous individuals" with firearms, pepper spray, pipes, and other possible weapons. Others were wearing body armor and riot gear, carrying radio equipment, and wearing "military-grade" backpacks. Among those who were screened, the Secret Service had confiscated hundreds of prohibited items -- knives, pepper spray, brass knuckles, gas masks, Tasers, body armor, and batons.  

[The claim that the protests were peaceful is absurd. There is also clear evidence that guns were involved. Strict D.C. gun laws did help keep more people from bringing them. Even stun guns are quite dangerous.] 

VP Mike Pence comes off well. A staffer quoted 2 Timothy to express his actions on that day: " I have fought the good fight, I have finished the race, I have kept the faith."

A symbolic moment was now Sen. Kim (NJ) going outside of the House chamber and starting to, by himself, join in the clean-up. The official vote count was complete late in the night, hours later than necessary because of those objections. 

Trump told the protestors to "be wild" and let them be wild for hours, until telling them to leave. He was correctly impeached (10 Republicans), but only a few (seven) Republicans voted to convict. Thus, we are where we are.

The vile video, which repeated false claims about a stolen 2020 election, showed the Obamas’ heads edited onto the bodies of apes as part of a “Lion King”-themed meme that cast Trump as “King of the Jungle.”

Republicans aid and abet Trump. They now and then find something to be upset about. People like Senator Tim Scott, who is suddenly appalled at Trump's racism. I'm with him:

“This disgusting video posted by the so-called president was done intentionally,” Jeffries said. "Fuck Donald Trump and his vile, racist, and malignant behavior

“This guy is an unhinged bottom feeder,” Jeffries added. “Every Republican sycophant who continues to stand by their cult leader should be run out of office.”

[The NY Daily News didn't spell out a certain word, but Jeffries said it.]

Every time Trump does something, remember it isn't just him. He is there because of his aiders and abettors. We talk too much about him. This is a wider problem. It is both natural and misguided to focus on one person, both for doing good and ill. 

Some -- like Mike Pence -- will have a limit and stand up at times. I doubt James David Vance would have acted like he did on January 6th. 

We must continue, to quote members of both sides of the aisle on that day, not let the "thugs" or thug, as the case might be, win. 

Developing A Scientific Temper

Gauhar Raza discussed his book, From Myths to Science: The Evolving Story of the Universe, on a recent Freedom From Religion Foundation podcast. It's a weekly broadcast on Thursday with one-half news, one-half usually some guest. 

He cited a quote from the Indian founding father, Nehru, in his book, Discovery of India.

The scientific approach, the adventurous and yet critical temper of science, the search for truth and new knowledge, the refusal to accept anything without testing and trial, the capacity to change previous conclusions in the face of new evidence, the reliance on observed fact and not on pre-conceived theory, the hard discipline of the mind, all this is necessary, not merely for the application of science but for life itself and the solution of its many problems.

The Indian Constitution has a section of "fundamental duties," which includes “to develop the scientific temper, humanism and the spirit of inquiry and reform.” Among the other duties are "to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures."

The fundamental duties are civic guidelines that apparently are "not justiciable." That is, they are not rights and obligations that are legally binding. Still, they provide a vision to follow. If some legal dispute arises, it also would seem reasonable to apply the law, if reasonably possible, without violating such duties.

As always, it is interesting to consider other national constitutions and laws. How do they govern and apply principles with some universal appeal?  

We should take more careful attention to such things, especially for a country that now challenges China as the most populous in the world.  

National Prayer Breakfast 

It's that time again. 

The National Prayer Breakfast, which as Stephen Colbert notes, threatens the separation of church and breakfast. It also has other issues.

Various groups encouraged politicians to boycott the event. Trump took the occasion to be horrible himself, including bashing Democrats, and selling how he is helping bring God back to this country. 

A time for politicians to join together and pray can be a useful event. It can be a benign one where they humbly respect their religious beliefs. It's possible. 

Trump goes another way and underlines why it was a tragic day in our nation when the people elected him in 2024. His profaning of religion included. 

RIP C.I.A. World Factbook

I found the CIA World Factbook a useful tool the last few years when doing research involving the countries (and territories) of the world. Others have found it a helpful tool for much longer. 

For instance, the Puerto Rico page provides basic facts. Now that page is down. There is an archived page. See here for the whole thing. 

A resource in place for over sixty years is suddenly gone. Why? Well, it's par for course with these guys.

The announcement posted to the CIA’s website offered no reason for the decision to end the Factbook, but it follows a vow from Director John Ratcliffe to end programs that don’t advance the agency’s core missions.

Its website tells us:

At its core, our mission is to gather and share intelligence to protect our Nation from threats. Our highest principles guide our vision and all that we do: integrity, service, excellence, courage, teamwork, and stewardship.

The CIA does not only collect and distribute covert information. Some argue that with the Internet, the factbook is obsolete. It is tedious to keep up to date. Why keep it?

The Internet allows for easy research. It does not remove the value of reliable, easy to access and peruse materials. The Factbook is not Wikipedia. 

Paul Musgrave, a political science professor, argues:

Killing the CIA World Factbook might seem like small potatoes, but it was a touchstone of curated facts in a sea of disinformation.

An Atlantic commentary argues it is "part of a broad war on information being waged by the Trump administration." Not part of the core mission?

The World Factbook was a public service that helped Americans and others around the globe be informed, created a positive association with a shadowy agency, and spread U.S. soft power by providing a useful service free to all. 

The sudden takedown is also part of a wider war on information. For instance:

The executive branch has removed data from its websites, such as those of the CDC, the Census Bureau, and other departments, or removed the webpages that hosted them. Almost 3,400 data sets were removed from Data.gov in the first month of Trump’s term alone.

The war on good government continues. 

SCOTUS Watch (Reform Edition)

(I forgot about the NYT article that dropped about Roberts having people sign non-disclosure agreements. But that was a voluntary policy already and there still will be leaks. 

How much really does that change things? We are concerned about other stuff, aren't we? On that, Vladeck is correct in his Thursday Substack.) 

Term Limits

Rep. Tom Barrett (R-MI), a first term Republican, proposed a Supreme Court term limit amendment as part of a wider reform package. The overall package sounds dubious but I'm okay with people seriously trying to reform the government.

The term limit amendment would set a twenty-year limit. A term limited judge could still be confirmed for another level of the judiciary. Sotomayor was both a district and court of appeals judge. A person could theoretically serve sixty years.

The amendment, as all realistic reforms are likely to be, only applies in the future. No current judge or justice would be term limited. This underlines how a term limit, however fine it is, and I support them, will not by itself be enough. 

Barrett wants to tie this with a set nine on the Supreme Court. Why should the Supreme Court, which has gone up and down from a 5-10 justice range (five never came to pass and ten was short lived) be set at some specific number? 

Republicans repeatedly are expanding state courts. This doesn't make it ideal. They do multiple bad things. But stopping any chance of expansion has to bring with it something worth the candle. 

Term limits aren't enough.

I am open to a compromise but one where the Democratic supported reform kicks in over twenty years from now (twenty years after the amendment is ratified) is not enough. For instance, we need an ethics bill. Any reform package is likely to have something I dislike. But need more. 

He also wants a supermajority amendment (2/3) to add new states. A bill banning mid-term restricting is fine. See below. This part is unconstitutional:

The bill would also require that only U.S. citizens are counted toward district apportionment and electoral votes. The census would still count all persons for other purposes.

(14A, sec. 2 says "persons" should be counted for apportionment purposes. That includes "district" apportionment. This rule would result in different districts being treated differently depending on the types of persons they have. No good.) 

Overall, it should be part of a wider voting rights bill. The three-year sunset funding idea seems too overinclusive. I am, however, game in having a debate to have Congress truly control the power of the purse. Trump has stolen it. 

Partisan Gerrymandering 

The Supreme Court (5-4) in Rucho v. Common Cause (2019) finally bit the bullet. 

After years of Justice Kennedy hemming and hawing, his successor provided the fifth vote. Federal courts will not try to determine unconstitutional partisan gerrymandering. State courts can use state constitutional provisions. And some have. 

Justice Kagan for the liberals had a strong dissent. And I understand. What truly annoyed me was that the conservatives were not consistent. 

They took away congressional power in Shelby County v. Holder to enforce the Fifteenth Amendment using vibes. If you want judicial restraint, do so consistently, please.

Federal courts can still determine that districting involves illegitimate racial gerrymandering. A lower court determined that was involved in Texas. The justices by a partisan vote overturned. 

Texas clearly had a partisan gerrymander. But that is functionally acceptable now when federal judges address the matter. Justice Alito has moved the goalposts and suggested they are generally acceptable. That, however, is not what Rucho said. 

The state, pushed by the Trump Administration which the lower court (written by a Trump nominee) found motivated by race, also redistricted mid-decade. The Constitution sets districting every ten years. 

It is not explicitly barred to do so mid-decade, but a case can be made. The whole thing has a race to the bottom feel. And Democrats, using the realistic motto that unilateral disarmament is for wussies, respond tit-for-tat. California for Texas. And so on.

If you allow Texas to redistrict to help Republicans win the midterms, there is no good reason to stop California from doing so to help the Democrats. People cynically figured SCOTUS would find a way.

They, without comment, did not grant a request to do so. Rick Hasen is happy and not too surprised. (Maybe, he is that no justice said anything.) SCOTUSblog has more on the details. 

Ultimately, this is depressing. We need nationwide election reform, including something that addresses partisan gerrymandering and mid-term redistricting. A national rule is necessary to avoid a race to the bottom. That is typical national rule dynamics.

We can debate the details, including what the current Supreme Court will deem appropriate under Shelby v. Holder. But this is not a good way to run a railroad.

Everything can be on the table. For instance, perhaps it is a good idea to expand the size of the House, which was set in place over a hundred years ago. Or some form of multimember districting is a good idea. 

Voting rights and overall republican principles should be something we can establish in a bipartisan fashion. Yes, I know, insert sarcastic metaphor here.

The point still holds. Rep. Barrett's package might not be my cup of tea. But young Republicans who will be around a long time, perhaps, willing to think creatively with some room for compromise are welcomed.

If sane people (Democrats at the moment) gain control, they very well might have a chance to be part of the solution. I'm serious. 

Any major change realistically needs some sort of bipartisan support to have staying power. A supermajority (see PPACA) might provide some chance, but when we are talking things like SCOTUS reform, we probably need more.