Local News

Mets: With ten games left, elimination is approaching, but even now a sub-.500 team not totally being so shows the weakness of the division. The Braves finally won and the Mets lost on the same night. The Braves lost today, so the elimination number holds at 4. That is a combination of Mets losses or Braves wins. Mets can still play spoil, helping Phils.

Food Delivery Reforms: Major legislation helping delivery people, who have been especially important during the days of Big V.

A summary: "City lawmakers are acting to aid workers in the booming multi-billion dollar app-based food delivery industry, scheduling a vote for Thursday on a landmark slate of bills intended to ensure bathroom access, minimum pay and more." It passed.

What's Cooking

A lot of even older films can be expensive on demand (it's ridiculous though yes various films are free and you have so much other stuff to watch), but this one was reasonable ($2.99 or $3.99). It is about four ethnic families (black, Asian, Hispanic, Jewish) celebrating Thanksgiving with various problems going on that mostly work themselves out somehow.

Very good cast, though the Asian family stands out a bit less even with Joan Chen. The director is better known for her English/Indian works (including Bend It Like Beckham and Bride and Prejudice). The Sven film last weekend was the original Dracula. Bela seems less scary and more silly than some vampires and the nemesis more of an old professor type. From what I can tell, great atmosphere. Did not really watch it though saw bits of it.

Supreme Court: People's Court ... and more abortion fictions

And Also: The December calendar of oral arguments was released, as you recall with live audio, and the big one is the Mississippi abortion case.   Some from the look of it  not really notable procedural order by Kavanaugh was also released. It is not really clear why it warranted a posting on the main orders page as compared as just on the case's docket page.  [Update]

Law professor Eric Segall, a nice guy who is right about various things, keeps on saying things like this (per a recent tweet):

Good morning. In 1870 SCOTUS stunned the country by ruling Congress could not make paper money legal tender for prior debts. Huge decision. One year later with 2 new Justices the Court overruled the decision. Changing judges changed the law on a huge case 1 year later. 1870-71.

This is a reference to the Legal Tender Cases, when the Supreme Court first held paper money was unconstitutional and later changed its mind. The first was 5-3 opinion; a change in court personnel (the nominees were picked in part for their different views on the issue) later made it 5-4 the other way.  

The message is that this is a sign that the Supreme Court is not really a "court," that personnel and their values is what basically determines things.  The justices didn't change the law on a range of issues.  On a particular issue, one strongly divided and novel, they did change.  

Because humans, picked by other humans (in our system, politically), are involved.  Nominations provide a key time for the people (indirectly) to affect the path of the law.  The system encourages this.  In some other system, perhaps some nominating board or something, itself regularly appointed by political actors with different views, might be involved.   

President Lincoln in his first inaugural argued the importance of allowing the people to influence the law in this fashion in novel cases.  He was talking about the principles of Dred Scott v. Sandford, and how it was appropriate for Congress and others to push back, to try to convince the Supreme Court it was wrong.  And, one might add, put new judges on the bench that might see things differently.

In practice, this does not result in rapid changes of the law in short period of times.  It can lead to changes in some respects, especially on certain issues that are given special attention.  In this case, it could very well be argued that the two new justices corrected a serious error, one that wrongly handcuffed the discretion of Congress to make fiscal policy.  The system basically worked as it should work.

A person might say, but reading his work, I don't think this is all he is saying, that the Legal Tender Cases is a red flag on the limits of judicial review.  That it is a lesson that it should be used with strong restraint.  That's a valid concern.  But, at times, there will be a quick turnaround, the people's representatives putting on the bench new people who strongly feel that something was wrongly decided.  This should be done with care. The justices surely thought they were doing so.  It is part of the system.

The justices are still acting like a court.  And, sometimes, this will be done in ways that people like me will find very wrong.  But, the law does change. So, we have to take the bitter with the sweet, though it is quite possible the judges are bad for some other reason.  Thus, the talk of how the Trump bunch got there.  The way the system should work, including its hard complexities, only make not being able to respect the legitimacy of new members that much more troubling. 

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Abortion Briefs: The architect of the Texas anti-abortion choice / bounty law is involved in an amicus brief in support of the Mississippi law due to be heard by the Supreme Court.  It's a doozy, including use of scare quotes for "rights," aiming for rights for gays, and arguing women can just not have sex, so why do they really need abortion rights?

We also have a "moderate" originalist argument for abortion rights -- supposedly history shows that quickening is the line and quickening basically happens around fifteen weeks.  My general understanding is that it really comes closer to twenty.  On top of that, though a quick read over doesn't suggest they cover this, even pre-quickening will -- going by history -- justify a lot of other barriers such as for minors.

The level of assurance on the history and what it offers at various points seems a bit too assured.  Also, there were a variety of laws in place in 1868, including bans pre-quickening, if "minor" in nature.  They still were in place.  Originalism by this account would suggest that states had a wide discretion to basically totally ban abortion.  

Finally, this sort of thing underlines the limits of originalism, at least some fairly strict version of it.  Quickening, to remind, is feeling fetal movement. The reason it was used is that the knowledge of the time was such that was the only way to determine the fetus was alive.  Modern science, however, provides technology to do so.  Mere movement in itself does not seem to be independently much of a line.  A brain dead fetus might move. 

The article (retweeted by Segall) is a fairly common example of trying to make firm judgments, often in a way open to criticism, regarding something that doesn't truly offer what is trying to be sold. The article might appeal as a "reasonable" approach, a compromise of sorts. I think that is a sort of fool's game here based on sand.  Not that I think it would work well either.

Sports Update

The Thursday Night Football game was Giants at Washington. The team that was a gimmee for the current Giants QB. And, though the Giants kept on making mistakes, their reliable kicker and a missed field goal at the buzzer looked like another win. If by a hair. Oh. Another penalty. Retry. The back-up QB to injured Fitz wins the game. 0-2 (of 17)

Meanwhile, the Braves (first place in the NL East) are in midst of a four game losing streak. Unfortunately, the Mets are in the midst of a five game losing streak. This is a continuing story of late of a day by day slow water elimination march. The Braves could end the fans' misery by winning a bit more. Do the fans really want the Phils (who I bet have one more screw up left in them) to sneak into the playoffs? After all, Adam W.'s Cardinals just might!

The Jets and Pats play on Sunday [blah], a pair of rookie QBs. And, the Mets play Sunday Night (they also had the Saturday Night FOX game), so no conflict! The Giants are good enough and their division weak enough that you sorta hope there; the Jets you can enjoy more with lower expecations. [But, you want more than you got today].

Some Books

Leaving the local supermarket, I recently saw a bin with a bunch of books outside. One was various works of Nella Larsen. I wrote about a novella that is part of the book, but could not get into the book this time. This has happened a few times with books I have read. Housekeeping was particularly hard going. Just so much color possible.

Another is a book I read some years back -- Fried Green Tomatoes at the Whistle Stop Cafe, which was made into a pretty good film version with various good choices for the characters. An old lady in the 1980s talks to a younger woman about life in Whistle Stop, Alabama back in the day. And, we hear tell of the lives of the characters over the years. I enjoyed reading it again; I remember much of it, but a few parts I did not.

There were lots of young adult books in the mix and took one with charming title, Getting Revenge On Lauren Wood. It was decent enough, but yeah, a counsellor wrote the thing. Soon enough, since the person is good, she feels guilty about things. Spoiler alert, even if she grew to be upset about it, she did get revenge on the girl who betrayed her in eight grade. Too bad she wasn't allowed to enjoy it. Well, it was a learning experience.

Drone Strike Admitted to be "Tragic Mistake."

The Pentagon acknowledged on Friday that the last U.S. drone strike before American troops withdrew from Afghanistan was a tragic mistake that killed 10 civilians, including seven children, after initially saying it had been necessary to prevent an attack on troops.

One thing I have disagreed with some liberals on is the justification of drone strikes. People argue they amount to "assassination," have no restraints, and so on.  I disagree.

Assassination is the unauthorized murder of some political leader. For instance, no matter what is says on his tombstone, Jesse James was not "assassinated."  Killing of a person like Martin Luther King Jr. (civilian leader of a movement) is more appropriately an instance for that term. 

A military leader in an armed conflict is not either in most situations, particularly when they are killed during an authorized conflict (such as one arising from an authorization of military force) in a combat zone.  This also touches upon how drone strikes are part of a process, subject to a variety of rules.  Likewise, deadly force can be legitimate even without court process.

Also, American citizens can be killed without court process. The Civil War is a prime example, but a few American citizens also served in other foreign conflicts, at times being in harm's way.  

Note that though it doesn't cover all drone attacks, the authorization of force covering the Pakistan-Afghanistan region at the very least is a sort of "process" too -- it is a specific authorization.  Some American who went to live with the Taliban or something and became a leader of their military effort very well is fair game in the right situation.  

This does not mean drone strikes are generally a good idea. I don't think they never are justified.  I can imagine how the use of a drone to kill an enemy combatant that is an immediate threat and cannot be obtain by other means could be defensible.  But, like use of force generally, there is a lot of problems.  The news item highlights why.

It also highlights a problem with tough guy talk like President Biden saying that those who committed the attack on the airport or similar suspects have a price on their head.  A certain level of rhetoric pushes the sentiment that use of force for reprisal is necessary.  Closer calls become seen as more of a reasonable risk.  And, it simply is going to be the case that drones will kill innocents.  They aren't that pinpoint, even with the right data.

The article also the NYT itself studied the evidence, questioning the attack. It is unclear how much that led to the official finding, but probably can be said to have put some pressure on the Pentagon.  It seems there is a quick turnaround, the attack happening less than a month ago.  

Drone strikes were used particularly by the Obama Administration, the Bush Administration more concerned with two military invasions of Afghanistan and Iraq.  They seem like a less invasive approach, which they probably are, but they can also fool you.  The U.S. forces rightly left Afghanistan because military attacks and occupation is going to cause "tragic mistakes" too.  War does that.  Drones will do the same while looking "cleaner."  Something can be wrong without be wrong in other ways.

We now are hearing calls for some "accounting" -- was that such a concern in past drone strikes that somehow went wrong?  Do have one. Meanwhile, the children are still dead. As they many were during the invasion.

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Meanwhile, France removed their diplomatic personnel from the U.S. for instructions (apparently never happened before -- even during the Quasi-War?)  because France thinks the U.S. really screwed them over regarding a military deal with Australia.  I guess Australia is less of a concern for them, or perhaps France-Australian diplomatic relations is less newsworthy here. 

[Guess they are mad at Australia too.]

I find it hard to care too much though it's notable enough to serve as a sort of footnote.  France comparing Biden to Trump surely won't help much to clam things down.  I don't recall the Trump Administration actually managing to do something this productive. I'm sure some of their people might be jealous of such "art of the deal" behavior.

Anyway, it is France after all. The U.S. is not their enemy or something.  And, the French need the U.S. too.  At some point, it is hard to imagine they won't relent, perhaps being paid off somehow. 

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To toss in one more thing in the news, one of the ten Republicans who voted to impeach Trump (the second time) said he won't run for re-election. Recall that the election is next year, but these days, we probably do have something like continual elections on some level.  His act of "infamy" already got him a primary opponent. He figures he can win, if after a nasty primary, but doesn't want to be part of the current House majority any more.  The need for protection after voting for impeachment doesn't help.

The problem is widespread here.  It is a problem of the Republicans at large.  And, it helps turn off a few, probably more likely to be halfway decent in some sense (the true believer/willing to go along can still thrive), from being part of Congress.  We have heard for a few years now some noise -- at times Democrats too -- finding the situation more unpleasant. 

Many could have agreed that Trump crossed the line.  No.  They either avoided the responsibility or actively agreed with him.  This yet again goes beyond mere party politics to the heart of the matter. 

I was a strong opponent of the Bush43 Administration, repeatedly personally appalled by things they did.  I supported strong opposition, including filibustering judicial nominees (in hindsight, questionable).  But, Republicans have gone further down in my estimation. Down the sewer.

SCOTUS Watch: Members Realize They Are In Trouble

It's late Friday afternoon and there are no new orders or anything. But, by now, we know that we should not assume things will remain the same. Enough late Friday action. I'll post it though and edit if necessary.

Still, let's focus on multiple members of the Supreme Court (Barrett, who I refuse to label "Justice" given I find her appointment tainted, included) are out there defending their institution. The big news -- covered in the past -- is Justice Breyer promoting his overly positive view of judicial review, including on places like Colbert. Now, on some level, I appreciate him going out in the public to discuss his views. These people aren't just ivy tower above the fray sorts. They should engage with the public some more and appreciate some of their efforts.

The problem is with his message and failure to realize it is time to retire. One annoying moment was when Chris Wallace asked him about Garland not being given a hearing. Breyer started with some stupid joke that even he saw didn't go over well. Then, he said that was the "political" side -- as if it had nothing to do with him and the Court -- and if the people opposed it enough, they could change it. 

Not exactly realistic, and he is actively out there trying to sell that there is no reason to do so since the Court is doing its job, and strong opposition to it it a problem.  So, that's sorta bullshit, you know?  Breyer and probably others pine for a day when judicial nominations were bipartisan walks in the park.  So, Garland etc. looks bad.  But, they also don't actually want much change (though Breyer has said term limits seem okay and Colbert suggested only a "majority" opposed cameras), which will temper down any action to get any. 

The fact the members of the Court are at least somewhat worried or annoyed or something is suggested by the fact recently multiple members are out there responding. One red flag is that there is recent polling that suggests public support of the courts have significantly decreased.  Which is warranted given the Trump trio and all that is going on.  

For instance, Barrett is out there -- in a location named after Mitch McConnell -- trying to sell that they aren't all partisan hacks. As noted here, her (and others) attack on the media is bullshit.  If nothing else, you can try A LITTLE and avoid any connected to Mitch McConnell.  

But, as Mark Stern and others noted, each Trump nominee did not follow that rather simple rule.  Some have high bars of ethics, such as a judge not being involved in an ACS event, but there are basic rules of avoiding the appearance of impropriety here.  How about formal ethics rules for Supreme Court justices? I suppose would be basically self-enforcing (though disclosure rules could be included), but seems useful.

Justice Thomas joined the "we aren't all partisan hacks" brigade.  We have this simplistic appeal:

“I think the media makes it sound as though you are just always going right to your personal preference,” the justice lamented during a lecture at the University of Notre Dame. “So if they think you are anti-abortion or something personally, they think that’s the way you always will come out. They think you’re for this or for that. They think you become like a politician."

This is rather simplistic.  As is his comment that national leaders have “lost the capacity” to “not allow others to manipulate our institutions when we don’t get the outcomes that we like."  For instance, their abuse of the shadow docket, doing so selectively in ways that surely do come off as based on ideological factors, is an "outcome I don't like," but sometimes that is a problem.  The way the Trump picks were handled also would have been bad if a Democrat did that.  His framing is simplistic.

It is true that justices are not just politicians in robes.  There is some nuance here.  The truth is in the middle somewhere. Judicial nominations tend in some rough sense, all things being equal, to have some partisan ideological overlap.  And, more so in recent years.  And, judges aren't just automans here.  Moscow Mitch et. al. purposely worked out that certain types of judges got on the bench. It's a lie to pretend otherwise.  

(The honest answer is that personal beliefs factor in and that judicial interpretation will be influenced by them to some extent, especially given our judicial selection process. The judge's duty is to do the best they can. And, to avoid an appearance of impropriety.)  

I don't know how much change in recent years; think this article suggests a bit too much of a shift. Surely, the Warren Court did a lot.  There has been a change, including as a result of changing political winds -- there was more overlap in the past.  We could have a liberal Republican become a justice.  Something similar could be seen c. 1900 when Democrats and Republicans could put people who didn't respect racial equality and support libertarian economic stances.  

There is also the imbalance caused by the 2000 and 2016 elections.  The lower courts have been more flexible over the years.  But, the Supreme Court didn't have a Democratic appointed majority for over fifty years or a Democratic appointed Chief Justice (himself a conservative) since the Truman Administration.  That's going off the rails without the problems with the last three nominations.  

The public and some members of Congress realize something is wrong. They might talk about it somewhat simplistically.  What else is new?  Breyer, Barrett, and Thomas (and Alito in the past), however, aren't really showing themselves to be much better. Perhaps, humility is best here. 

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Note: I added a new website to the blogroll, Balls and Strikes, which aims to provide a progressive view of the courts.  

A major constitutional/legal dispute these days is religious liberty limits to Big V rules. Someone who is generally friendly to religious exemptions (probably too much) argues religious exemptions to vaccine mandates are problematic.  I agree, and to the extent we have had them, in recent years, there have been problems with their usage as well.

Finally, perhaps worthy of a separate entry or something, but the latest attempt to compromise on a federal voting law looks good. Manchin is for it.  Like his support of a filibustered background check years back that 90% or something of the public supported, will this actually come to anything?

Odds and Ends

The Failed Promise: Reconstruction, Frederick Douglass, and the Impeachment of Andrew Johnson by Robert Levine was an interesting account. The beginning was the most notable with some early hints on why Andrew Johnson (Unionist and against slavery later on) seemed not a bad VP option. The book later on, though we got some interesting stuff thru the eyes of Douglas and some other black leaders, covered more familiar ground. But, overall interesting book with a Douglass speech in the appendix.

The Hallmark movie yesterday, Roadhouse Romance, was a low key affair with a basically new woman lead and a more well used male lead. The net effect was charming if a bit rough acting along the edges. Good line - country music is "three chords and the truth." The Sven movie was an Abbott and Costello monster movie that I didn't catch.

Football season began with Buffalo losing to the Steelers and the Jets losing to Carolina (where the old Jets QB went). Jets looked better in the second half. The Giants are playing Denver today, so all the "NY" teams sorta played teams they could beat though we shall see how the Giants do manage. [Not too well.]