2017: Half-way Point

Ugh.

Fugitive Slave Clause

No person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due.

I read one of those case book series volumes covering Prigg v. Pennsylvania (subtitle: "Slavery, the Supreme Court, and the Ambivalent Constitution"). It fit within the middle range, worthy to cover the material and get a thumbnail sketch of the wider picture and specific details. Thus, e.g., we learn that the case is ultimately about Margaret Morgan, a woman who much of her life was not treated as a slave.  "Prigg" was one of the people sent to seize her and found by Pennsylvania guilty of kidnapping for not following the process in place.  This, apologies, colors the result.

The problem arose after her owner (if he was one by this point -- the facts are a bit hazy) died and his heir wanted control of said "property."  By this point, she moved from Maryland (she was not some typical "fugitive") with her free black husband (who lived with her in Maryland until her parents died) to Pennsylvania.  One of her children at least was born there and under state law was free.  The unnamed child was seized with their mother.  After their slave status was confirmed, they all were lost to history, apparently she was sold South.  Her free husband went personally to the governor to get relief but on the way back lost his coat.  He was seized as a possible fugitive, his papers in the coat, and while bound, drowned trying to escape. 

The two states had a dispute on their hands, Pennsylvania among others having laws on the books that showed some recognition "persons" were involved here, including free persons who could be citizens of their state. The whole black U.S. citizenship part is complicated, less so state citizenship; but free blacks at least where "persons," not nonpersons having no part in the Constitution.  Since only "persons," including those who were slaves were mentioned, I resist the argument even they were not part of the community in that sense.  But, free blacks surely were. Anyway, a sort of test case was set up, and that free child was included in the list of facts. (It was assumed she was a slave.) It was there. If any of the justices cared to note it.

The Fugitive Slave Clause is the most blatant slavery friendly clause, the international slave trade measure limited in scope and time.  Note, though few were around, the clause applies to indentured servants.  I gather too that it covered people in service on ships, something that came up after slavery was gone (see Robertson v. Baldwin.)  It also reaffirmed something that was common practice and found in the Northwest Ordinance too.  On some level, the inability of Massachusetts to determine a fugitive slave would be free once it steps on their soil was not shocking.

That was not something even Massachusetts was doing at the time. The real question is what sort of duty did states have here, including to help capture. What does "delivered up on claim" mean exactly?  For instance, did they have an obligation to provide arrest warrants (e.g., a slave in someone's house could not simply be seized, it being a trespass to go into someone's home without authority)? A logical rule for me would be to set up a process, akin to obtaining an arrest warrant, where you provide evidence to a magistrate (the "claim") and upon proof, the person in question can be taken.  The putative fugitive might be held in custody while this occurred. Balances rights as far as possible.

The conclusion in Prigg that the clause justifies merely seizing someone, unless you breached the peace, seems unfounded. What of the rights of persons?  As discussed in the book, it is not clear from the text, including given other things in Art. IV provides Congress explicit power, that the federal government had the duty to pass a law to carry out this provision.  It would logically be left to the states to do so.  But, if the federal government did so -- Fugitive Slave Act of 1793 -- they are bound by the Bill of Rights. Free blacks are "persons."  Some due process is justified.

The dissent by Justice McLean noted:

The slave, as a sensible and human being, is subject to the local authority into whatsoever jurisdiction he may go. He is answerable under the laws for his acts, and he may claim their protection.

Likewise, free states had the power to assume freedom. To the extent the state rules to determine fugitives clashed with federal law, they were pre-empted. Now, I would then go to the next level and say that the state law here was more loyal to the rights of persons.  Regardless, McLean provided a useful middle path: even if the state law interfered with federal law, it is proper to have one rule for the nation, the slave catchers shouldn't have just taken the mother and her kids (even he doesn't appear to talk about them) out of the state. The federal law provided for a hearing in front of a federal official, who were available in that state. 

The process very well (though it provided minimum protections) been to summary, but it provided something to stop illegitimate kidnapping.  It is wrong to throw up your hands here and note that the Constitution protected slavery.  It did but exactly how it went about it is unclear and there ways present to temper the wrong in the process. People were wrongly kidnapped. It was right to have some protections in place here.  The federal law very well might have put the ceiling [be it too low] though that wasn't necessarily the only way to apply it (maybe if you used state courts to claim your fugitives, a stricter rule might be valid, another federal route still open for you). 

Just merely letting people be seized is a bridge too far. And, finally, as "persons" (it is right there in the clause), due process rights are present. The Fourth Amendment does speak of "the people," but before proof, it isn't known if the person is a slave. And, regardless, the Fifth Amendment covers "persons" too.  The state of Pennsylvania did not have to leave that up to the slave state, especially involving that child.  Taking everything as a whole, a fugitive is not discharged of their duty, but said status is not left to the say-so of the putative owner.  Finally, "claim" fits with some sort of legal process, taking it all in.

The pro-slavery racist result here is telling.

SCOTUS Is Busy On Final Opinion Day

Update: Some final orders, including granting review on a few more cases. Notable to me were some cases sent back to be re-examined in light of the Trinity Lutheran opinion; they include scholarships and secular textbooks.  Also, the circuits were distributed, with Gorsuch getting Alito's old digs.

The only apparent retirement is to long time SCOTUS reporter Lyle Denniston,* but today was still a busy day. I'm going to summarize here as before but again lots of coverage at various places, including the legal blogs on the list to the right.

Some stuff put off to next term, including to quote SCOTUSBlog (covering two cases) ordering "reargument in cases involving immigrants' bond hearings and the vagueness of crime of violence in the immigration laws."  Probably turns on Gorsuch. A case involving selling cakes to gays that most thought was being held over for some dissent (now joined by Gorsuch) was simply taken for argument. Why in the hell did it take so long, being "relisted" over and over again?  Was other ongoing litigation involved? Who knows.  But, probably Gorsuch's vote mattered.

The travel ban case was taken for argument and there was a split decision (following a theme, Gorsuch joined a conservative wing that went further) that did stay it for those affected that had some (not totally clear who is covered) connection to the U.S.  Simply not taking it very well might be the best policy, but especially with three conservatives who wished to go further, blocking a major executive policy on constitutional grounds is a case that the Supreme Court would likely take.  In the long run, it is unclear what will amount to, but symbolism on all sides is a basic point here. Also, perhaps, injunction rules.

SCOTUS split 5-4, conservatives winning each time, in expected ways, in a class action and criminal rights case.  Not sure how important these cases are though the expert in the linked summary suggests one is more notable than various other cases.  The justices in effect punted a case involving a cross border shooting, Thomas [Gorsuch not taking part] saying he would go further, Breyer/RBG dissenting to address the merits. Result is expected, including the multiple opinions and two in dissent.

The order list also had various interesting statements and such (Gorsuch giving his .02 on many things, almost consistently in a conservative way; annoyingly folksy too**).  Thomas/Gorsuch wanted to take a case involving public carry of firearms; RBG/Sotomayor (without comment) one where the felon restriction was limited somewhat. Among the bunch was a 6-3 (Gorsuch writing for Thomas/Alito) per curiam upholding the equal rights of same sex couples to have their names on birth certificates.  Gorsuch thought they should have took the case but also used his dissent to suggest the same sex marriage cases should be interpreted more narrowly. It is important to note that Roberts silently went along with the majority here, as suggested by his silent acceptance of an earlier reference in the immigration case involving sex equality principles.

[Note: Some have noted that Roberts shouldn't be assumed to have joined the unsigned opinion in the birth certificate case.  If that is the assumed rule, fine, but it is b.s. -- if a justice does not say anything, the logical and reasonable thing without more is to assume consent.  In the border shooting per curiam, it is noted Gorsuch did not participate. So, I assume Roberts participated in the decision.  If he wants to dissent, do so publicly.  Anyway, this is going to be the general assumption and again it's notable. For the second time, without comment, Roberts went along with a citation of Obergefell v. Hodges and here to directly honor its holding in an opinion that at least in theory can be differentiated.]

The final case involves a state funding program that here involved a church school playground. My basic sentiment is that they shouldn't have decided things, it dubious activism (as compared to non-dubious, which is a thing) for them to do so.  On the merits, except for a limiting footnote (Thomas and Gorsuch would have gone further), five justices deemed this a matter of religious discrimination, Breyer too if on a somewhat more limited grounds.  The facts sound sympathetic but the actual harm very well is theoretical given the change of position by the state government. Use another case to settle issues.

I think the dissent, which engaged all the opinions while the majoirty does not seem to engage with it (I tried a "dissent" or "Sotomayor" word search), has the better case.  Not sure how bad the majority will be applied in practice, but yes, a funding measure, a selective one at that (not a general benefit like police protection; it also as Sotomayor notes, has specific aspects that furthers troublesome entanglement issues) is treated differently.  It is not some sort of act of discrimination to treat religion differently; religion in other cases (e.g., dealing with employees) get special benefits. Not funding religions you oppose is a tried and true means to protect religious liberty.

Anyways. Might be another general orders release to clean up certain things and then there will be three scheduled days (per past practice) during summer to do the same. Meanwhile, if necessary, they will release a miscellaneous order and do other things until the new term begins.

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* I saw a reference on Twitter about a nice statement by Chief Justice Roberts on his service.  Opinion days are not available for audio or video, but that would be an appropriate usage of the rarely used section on the Court's website regarding media advisories and press releases.

** For instance, Rick Hasen on Twitter: "Other thing I'd say about early [Judge] Gorsuch: his tone (and willingness to write so much alone so early) shows lack of humility."  Does did annoy any of the justices? This fake humility shines through repeatedly, e.g., talk of "modest" additions to the majority in the religion case while assuring that he supports it as a whole.

Ordered reargument in cases involving immigrants' bond hearings and the vagueness of crime of violence 0in the immigration laws, and remanded for reconsideration of a cross-border shooting in light of an earlier decision

Ordered reargument in cases involving immigrants' bond hearings and the vagueness of crime of violence 0in the immigration laws, and remanded for reconsideration of a cross-border shooting in light of an earlier decision

Ordered reargument in cases involving immigrants' bond hearings and the vagueness of crime of violence 0in the immigration laws, and remanded for reconsideration of a cross-border shooting in light of an earlier decision

Ordered reargument in cases involving immigrants' bond hearings and the vagueness of crime of violence 0in the immigration laws, and remanded for reconsideration of a cross-border shooting in light of an earlier decision

Ordered reargument in cases involving immigrants' bond hearings and the vagueness of crime of violence 0in the immigration laws, and remanded for reconsideration of a cross-border shooting in light of an earlier decision

Supreme Court: Gorsuch Dissents

Mr. Perry’s is an invitation I would run from fast. If a statute needs repair, there’s a constitutionally prescribed way to do it. It’s called legislation. To be sure, the demands of bicameralism and presentment are real and the process can be protracted. But the difficulty of making new laws isn’t some bug in the constitutional design: it’s the point of the design, the better to preserve liberty.”

Judge Gorsuch's first dissent. OTOH, seven justices, including Roberts and Alito, joined RBG's majority opinion that said certain "legislation" required something. The "process" brought forth it. etc.  Now, it is not that I am fully sure one way or the other of the correctness of the majority here, but do generally think that the seven justices at worst are merely interpreting the law wrongly. They are not legislating from the bench. In fact, repeatedly, RBG and Breyer are are the ones who are promoting restraint here.  This sort of patronizing b.s. will be in place for decades though.

There are six opinions left and all that will be handed down will be done on Monday.  So, it might be the case that we will have a couple 4-4 opinions, which might be held over for re-argument so the Trump judge can decide.  Meanwhile, the ones handed down today in a mild way advanced good results. The one cited upheld an employee right to bring his claim in a certain forum.  Another, 7-2, continued the Roberts Courts at least mild tempering of the excesses of immigration law.*  Here, the chance of staying in country, even in prison, was seen as reasonable judgment for plea reasons. And, Kennedy led a 5-3 Court for a reasonable regulatory takings case.  So, nothing profound, but overall okay.

Things might be a bit more complicated on Monday. Shall see.

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*  This opinion might only marginally help the person, but the principle is appreciated and might in another case do more.  Also, as one summary notes, we get a sense of the type of people affected by such laws:

Jae Lee, the defendant in the case decided on Friday, moved from South Korea to the United States at age 13. He has lived here for nearly three decades and runs a lawful business; his parents became citizens, but he remains a lawful permanent resident.

This ultimately is going to turn on policy, but the courts, including in applying the laws on the books, have a role.  And, Gorsuch's patronizing (condescending?) platitudes aside, there is play in the joints and room for debate there.  Aim for as much justice as possible.

SCOTUS: Criminal Justice Day

Three somewhat notable criminal justice opinions today, one continuing the Roberts Court practice of softening harsh immigration criminal law. Gorsuch concurred there ("respectfully"!) saying Kagan decided too much. Gorsuch basically joined with Alito/Thomas when he voted separately. Breyer/Kagan dissented here (defendant lost). They split on another lurid murder case. Meanwhile, nice obit on a lower court judge many probably might not know about. Nine cases and some important decisions (travel ban etc.) to make left.

Summer Begins ... Sigh

Summer begins and the year continues to be a bummer, including two special elections going the wrong way yesterday (Georgia/South Carolina) though them being close (usual very safe red) is of some value. Mets beaten 12-0. Older players, pitchers off injuries and second year slumps possibilities (Gsellman) made high expectations a bit overblown. But, especially with key injuries like to Thor, everything that can go wrong seems to be going wrong with little going right (Wheeler was very good for a time, but now had two horrible starts). Sigh.

SCOTUS: Trademarks and Sex Offenders on Amazon.com

Partisan gerrymandering does have First Amendment implications, particularly freedom of association, but two important opinions today. First, "disparaging" trademark prohibition (applied to "The Slant," who used it ironically) unanimously overruled (some dispute on details). Way to resist "Redskins" is private pressure. Also, split 5-3 on breadth of dicta (Alito probably right to be careful), broad online blockage of sex offenders overturned.

SCOTUS Watch (Part 1)

Busy day. First, good discussion -- with many reasons -- supporting cameras. Second, important partisan gerrymander case to be decided (though again, four justices dissent as to a stay and don't say why!), which some are saying means Kennedy will stick around. Sotomayor continues to go her own way to support liberal jurisdiction rules. First dissenting vote to written opinion by Gorsuch perfectly expected (criminal justice). (His first opinion challenged on style and substance here.) Another error correction per curiam. Pithy first paragraph makes me think Roberts wrote it. OTOH, not quite this good. 1A next.

ETA: Also, a "Bivens" case involving post-9/11 treatment that was a destined to be a lost cause with Sotomayor and Kagan was not involved. Breyer dissented from bench in 4-2 (3-1-2) restriction of civil litigation. One claim left open for now. See here for analysis, including my comment on Breyer's oral dissent. Will foreclose citing them but other opinions will be discussed in depth various places too. More opinions on Thursday.

Police Reactions Early and Late Week: Quite Different

We honor the police who stopped the attack at a congressional baseball game from being more lethal ("well regulated militia"?) and then protest later with the not guilty verdict in the Philando Castile case. Situations quite different but still up/down. Some statistics: mentally ill and black victims stand out. Reading: Chris Hayes and The Hate U Give. As to rhetoric per the political attack, my baseline is human empathy with even "deplorables" a matter of humanity. Non-humans don't have the wherewithal to be deplorable.

ETA: Regarding the police killing, when the NY Daily News editorial staff says "simply madness" -- it's not some left leaning group -- it's a red flag. The case seems so gratutious. EVEN THIS? Come on. It's like waterboarding. Got to draw a line SOMEWHERE!

Formal Investiture of Judge Neil Gorsuch

The formal ceremony to insert the replacement for the stolen seat occurred yesterday, the "golly" Trump representative and various other deplorables present. This asshole will be on the Court for decades most likely. And, as seen by the beginning of the audio here, Trump's court of appeals nominees are starting to take their places too. How do RBG et. al. (including Sotomayor who has to sit next to the guy!) feel? Can all of them really treat Gorsuch merely as a colleague? Maybe, they can. I have my doubts I could. Imagine if Kennedy retires!

SCOTUS Watch

Still waiting on decisions regarding taking certain cases, but had a per curiam regarding geriatric release (and parole for juvenile offenders). Not sure the point of such pinpoint error correction. Important gender rights opinion (cites SSM cases/Alito and Thomas concurred separately) though party loses out for now in the end. It's an immigration case so query if usage of constitutional principle there (six votes at that) helps the travel ban challenges? One other opinion of note basically because (Golly! how folksy!) it's Gorsuch's first.

ETA: It's not exactly as exciting for many, but SCOTUS seems to be dealing with intellectual property issues in various cases of late and took a significant one for review. As to the immigration decision comment, the provision is differentiated from congressional “exceptionally broad power” to admit or exclude aliens. But, rational basis still must be met. OTOH, the litigant might still get relief though others might be hurt for time being.

RIP Glenne Headly [plus Comey]

I remember her from two early roles and don't recall much else but this obit about "medium famous" (often the best kind) actress felt worth noting. Meanwhile, this is a powerful analysis of fired FBI director James Comey's written statement to Congress from a somewhat conservative source. Just would note not being personally investigated for "counter-intelligence investigation of his personal conduct" (and even there not let off the hook) doesn't amount to much. Sigh. This has been a crummy year.

Supreme Court lifts stay of Alabama execution

First saw this in a tweet from Chris Geidner (Buzzfeed). It seems gratutious (at least explain yourselves! both sides!) to not let the 11CA stay for now as they examine the question; not sure why Kagan didn't publicly join the other three dissenting. Was told already I should not assume vote of those not publicly noted but unclear why the presumption of silence = consent should not apply. The person is due to be executed tomorrow. [And, he is.]

ETA: The Hate U Give was very good, a sort of fiction companion to Chris Hayes' latest. It's about a teen straddlilng two worlds, a witness to a police shooting. Movie in works.

The Teacher Wars: A History of America's Most Embattled Profession

The first two thirds of this book was an interesting collection of basically snapshots through the ages (early 19th Century to 1970s). Then, it got (with a longish chapter) bogged down in recent disputes over teacher training and such. It didn't even really help me understand current disputes like "Common Core" and national standards that much. Not comprehensive, but a helpful look (supportive blurb by Chris Hayes suggests author's sentiments).

SCOTUS Update

Low level opinion day as a whole though did take a notable cellphone case that raises 21st Century 4A concerns. Other hot button cases still up in the air. Unanimous opinions all around though Sotomayor concurred separately to flag a concern for an expansive application of a church plan exemption. Another case basically a punt notable for Gorsuch's [already putting himself out there] involvement. More. Action on a gerrymandering case and limiting reach of drug forfeitures. Unless Kennedy retires, might be a low key June overall.

Trump Withdrawal From Paris Agreement

The legal implications of Trump announcing his withdrawal from the Paris Climate Agreement is complicated.* But, the ultimate message is rather negative, though it is largely basic Republican in nature (if of the crude form that some rather not use).  It is sometimes noted that we are in bad company respecting the death penalty, especially certain applications.  Here, only Syria (civil war) and Nicaragua (thinks it too weak) didn't join.

When Chris Hayes live tweeted Trump's announcement (Pence later went on FOX to suck-up and continue the b.s.), he mentioned its voluntary nature. This led a few people to wonder why we should care.  Hayes in a somewhat belabored metaphor cited a hypo of someone who promised that they would quit smoking and would provide scheduled announcements of their progress. It was an incentive. It also is an agreement smoking is bad.

"addicted244" summarizes things nicely:

The Paris agreement didn’t do enough. But you cannot do enough by doing nothing.

Just the fact that they brought nearly every country in the world to agree on this was a HUGE step. Acknowledging the issue, and acknowledging that developed countries owed developing countries a debt because a lot of their growth was based on polluting the world for current and future generations was a massive step forward. It allowed countries like India and China to start making major steps towards improving their climate change stories, to the point that both countries have announced target far more stringent than the Paris accords requirements, and both are on pace to beat even those stringent requirements.

Just the fact that almost every country acknowledged that climate change was a problem that we need to solve together lays the groundwork to start solving that problem together.

That the Paris Accords didn’t achieve everything needed to be done is a feature, because if a few meetings could have solved the problem entirely, it wouldn’t really be a major problem in the first place.

And, since Republicans -- and some Democrats really -- would  not support something with more teeth, particularly something that required a supermajority passage as a treaty (the agreement worked within existing treaties to some extent and overall legally it is unclear just what Trump really could do right away*), Obama did what he could. Not enough, but something that helps things forward.  This is a step backward though how much is up to the parties.  For instance, localities are starting to pledge to work toward the goals of the agreement.

There has been some strong rebukes and it is deserved. But, it is left to the resistance yet again, the foreign flavor of that word fitting since the "leader of the free world" apparently is a woman -- the leader of Germany.  We also have the new president of France with his older wife.  And, local efforts too.

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*  It is also unclear he knows what he is doing:

The President also announced his intention to renegotiate the Paris Agreement if possible, apparently after notice of the U.S.’s intended withdrawal. While perhaps reasonable in a context such as NAFTA, which has only two other parties, in the setting of the global climate negotiations such a proposal is a red herring. The Paris Agreement is the product of a quarter century of intense negotiations, including the Kyoto Protocol which the United States declined to ratify. To expect the entire world to commence yet a new round of negotiations at the request of one state—even one as important to the issue and politically powerful as the United States—is simply not a reasonable expectation.

Reasonable. If only.