The Aftermath

A British officer invites his wife to join him while he serves occupation duty late 1945. She deals with losing their son in the Blitz while he is off much of the time dealing with some violent resistance. He tries to do his job professionally but his underlining emotion leaks out at times. Meanwhile, the German father (whose wife died in bombing too) and teenager daughter whose house they are staying in have their own issues. An affair arises though things end up fairly predictably. Overall, well acted and convincing re-enactment of the setting. Story is decent. Helped it was a $7 cheap day affair at the nice Bronxville Cinema.

And Also: I also had a chance to see a taping of tonight's Chris Hayes (sans tie like the old weekend show days) special town hall with AOC regarding the Green New Deal. Good selection of commentators. Taped right near me. AOC is great.

More Orders: Guns and the Death Penalty

And Also: The Mets, letting the rookie play (he helped manufacture the insurance run) even if it meant they lose control of him a bit sooner, won their first game with newbie Canó (who I admit I was wary about) starting off with a HR and then knocking in the insurance run. He also made a key defensive play. DeGrom (with his five year contract) gets the win.

Current possessors of bump-stock-type devices must divest themselves of possession before the effective date of the final rule.

I was going to separately deal with the execution scheduled today but another order warrants note. The order in a "pending case" that did not at this early point stop the bump stock ban from going into place is not surprising.  To remind:

Bump stocks — the gun add-ons that can dramatically increase their rate of fire — are now officially illegal in the U.S., after a Trump administration ban took effect Tuesday. Anyone selling or owning bump stocks could face up to 10 years in federal prison and a fine of $250,000 for each violation.

What did surprise me some is that the new regulation, a mild one after yet another mass shooting, does not grandfather in existing bump stocks. As that link notes (with a link to the government website), owners now have to destroy them (instructions provided) or dropped off an the ATF office.  The "assault weapon" (since it applied only to some weapons, I put it in quotes) ban of 1994 was not as strict.  Imagine if it was. With less loopholes.

Later: And, they denied another stay, Thomas/Gorsuch dissenting, leaving a lower court the option to stay it for a few days.

===

Patrick Murphy, who was convicted under the controversial law of parties after playing lookout during a deadly store robbery, is scheduled for execution March 28, according to Texas prison spokesman Jeremy Desel.

Murphy had escaped from "a 50 year sentence from Dallas County for aggravated sexual assault" so is again not exactly a sympathetic character.  The fifteen or so year lag time is almost reasonable as far as these things go.  Nonetheless, he did not directly commit an illegal homicide.  One might not be too upset, granting the penalty as a whole is still tainted. Still, this is a capital case. You just knew something would come up to taint it.

So, it is not surprising that we (with a precedent now to back it up, but it still is gratuitous and wrong) have another case of refusing a request to have a chaplain of one's choice in the death chamber.  The free exercise problem again joined with the establishment problem of the state having a chaplain of a specific sect. This time Christianity trumps Buddhism.  This is a capital case, so attention might matter, there no need to further bad precedent.  You have a few executions.  Let people have the chaplain of their religion.  The Supreme Court has shown some respect for the free exercise of non-Christians, but this doesn't help those who think otherwise.

The application for a stay of execution of sentence of death presented to JUSTICE ALITO and by him referred to the Court is granted. The State may not carry out Murphy’s execution pending the timely filing and disposition of a petition for a writ of certiorari unless the State permits Murphy’s Buddhist spiritual advisor or another Buddhist reverend of the State’s choosing to accompany Murphy in the execution chamber during the execution during the execution. 

And, (I started this earlier in the day) in a surprise, the Supreme Court DID block the state from denying him. The reasoning left something to be desired, especially given that just last month (involving a Muslim inmate, but they protected their rights in other contexts though the average person unsurprisingly thought it suspicious)  rejected just such a claim. I quoted the whole opinion.

Why the difference this time?  Kavanaugh dropped a brief footnote saying as a whole this time the request was timely.  Justice Kagan last time explained why the "timely" argument doesn't work and the footnote didn't substantively refute her.  Roberts and Alito didn't write separately here.  Thomas/Gorsuch simply said they would have denied the stay, not answering Kavanaugh either.  This is not how you should handle a capital case where you block an execution. Put aside that for some reason they only handed the order down after 9 o'clock at night again, hours after the scheduled execution time. Did strong public criticism (multiple horrified reactions after last time) affect them any?  A conservative leaning religious liberty group submitting a brief?

The end result was correct. There is some evidence that the Roberts Court is showing some care post-Kennedy.  Up to a point.

ETA: Reading over the Slate commentary of this case, it probably should be noted that -- by generally but not necessarily completely accepted rules -- we should not really assume who joins in a per curiam unless it is expressly stated.  Only three justices' views were expressly stated in this case. Two who dissented and Kavanaugh though few doubt the liberals joined to make five.

Now, this to me is a tad ridiculous.  Silence to me implies consent. In theory, since you only need five, maybe Kagan (who wrote dissent in the last case) dissented on precedential grounds here but did so silently!  But, maybe, in certain cases the inference would be wrong. Still, I think it is sensible policy. If a justice doesn't comment, they are silently going along.

(Texas eventually took an option offered by Kavanaugh [but see] and now denies any faith or spiritual advisor in the execution chamber, but allows them [equally] in the witness room. This advances the Establishment Clause value but somewhat less so the Free Exercise at issue. Both states have an execution scheduled next week. As to Alabama's policy now, who knows.)

SCOTUS Watch

And Also: Prisoners of Politics: Breaking the Cycle of Mass Incarceration was a bit overwhelming given the amount of material summarized in around two hundred pages. But, her push for reform here using "the best empirical information available to prevent crime and improve the reentry of former prisoners into society" is well taken. I saw her at two panel discussions at NYU recently as well; she made her points well there too.

====

The end of the "March argument sitting" involved some significant cases and I will lead with that.

The biggest question is if there is a chance that a majority will be found to in some fashion reach the merits on partisan gerrymandering.  Two people I look toward for an inside perspective are somewhat split -- one is more optimistic though both think there is a chance.  Kavanaugh (who with Roberts, at least now, is crafting a new conservative moderate wing) seems to be key here. Gorsuch voiced support of independent commissions. Great.  Roberts led the dissent on blocking them not that long ago.  So, maybe that will be how they split the baby.

[One of the advocates against gerrymandering here won back in the day the first time around in the "one person, one vote" wars ... in the 1960s.]

The other issue this week that gets the most attention involves agency deference. The main event has a sort of administrative law "undercard" involving the necessary judicial review warranted in a case involving faxes. (The justices also got a view of the Stanley Cup, but as usual such news isn't referenced on their website. They did let the press know. Us peons can hear about it indirectly.) The main event is previewed here and various conservative justices have had some form of it in their sights for years. It's not judicial "activism" if you are right! There is to my understanding various ways to split the baby here so it is quite possible that a compromise will be fashioned. Overall, the basic idea that agencies should have deference over their own area of expertise makes sense. Such deference isn't absolute at any rate.

There has been a trend of sort this term that orders repeatedly had an interesting aspect or even something major.  But, this week's order list was not of that caliber. No separate opinions or statements. The one notable thing seems to be turning down (again) a mystery corporation involved in the Mueller Investigation (who submitted "the" report last Friday, so this is timely enough ... AG Barr released a brief summary, but we don't know what's in the actual report yet). Various cases, including one or more abortion restriction, are still being considered.

We also had a few decisions but a lot of unanimity (e.g., one important SEC case was 7-2). A couple things were of mild interest. The interpretation of rules of service process case explicitly noted that the losing party (that got one vote) had a few decent arguments, partially a result of inexact crafting, but that as a whole the best ruling went the other way.  A lesson: things aren't all or nothing.  Also, Sotomayor (with RBG) concurred with Kagan's unanimous opinion restraining regulation of Alaska's Nation river (in a case involving a hovercraft), but warned to not take the opinon too far.  To the degree it might suggest more regulatory restriction than warranted, she (like she did in another recent case) counseled Congress to clarify matters.

There will be a conference on Friday and an execution is scheduled for tomorrow. I will address that matter in a separate post.

The John S. McCain Opioid Addiction and Prevention Act

ETA: The Disability Justice Initiative tweeted today this: "Props to @SenGillibrand staff for sitting down & listening to members of the #disability community today. We look forward to continuing the #PainManagement conversation in a way that limits misuse without harming the #disability & #ChronicPain communities."  

Senator Gillibrand received some strong negative pushback when she announced support of "The John S. McCain Opioid Addiction and Prevention Act"  (he sponsored it, thus the name, but such naming is tedious -- how could anyone oppose something named that?).  She got so much pushback (and not just on Twitter) that she felt it necessary to respond.  Not surprising when people cited it as simply disqualifying (anyone who did so was not really too gung ho for her anyway, I would argue).

[One person responded to a comment I made about it by saying it would likely "kill" friends of his.  Yeah.  Tad overheated there. I can say that since (unlike my Twitter and blog comments some places) no one actually reads this blog. Reading into the law, including my own state's policy, how exactly will this proposal "kill" people above and beyond current practice?]

What is the problem here?  Looking at the summary, we are told that  the "bill would create a seven-day prescription limit for opioids so that no more than a seven-day supply may be prescribed to a patient at one time for acute pain."  The term "acute" received some pushback since the inference from references to wisdom tooth removal and the like was that it was something that would be completed in seven days.  This suggests the limits of official Twitter snapshots of proposals, perhaps.  Anyway:

Acute pain is a type of pain that typically lasts less than 3 to 6 months, or pain that is directly related to soft tissue damage such as a sprained ankle or a paper cut.  Acute pain is of short duration but it gradually resolves as the injured tissues heal. Acute pain is distinct from chronic pain and is relatively more sharp and severe.

That is just a quick find but gets to the open-ended nature of the term.  But, the summary of the provision (contra to one Twitter reply that I myself replied to without getting a response)  says that the person still can obtain more supply.*  Gillibrand cites her own state as a model of the law, something reply after reply seemed to skip over, and I looked it up.  Yes:

TO FURTHER REDUCE OVERPRESCRIBING OF OPIOID MEDICATIONS, EFFECTIVE JULY 22, 2016, INITIAL OPIOID PRESCRIBING FOR ACUTE PAIN IS LIMITED TO A 7 DAY SUPPLY.

A practitioner may not initially prescribe more than a 7-day supply of an opioid medication for acute pain. Acute pain is defined as pain, whether resulting from disease, accidental or intentional trauma, or other cause, that the practitioner reasonably expects to last only a short period of time. This rule SHALL NOT include prescribing for chronic pain, pain being treated as a part of cancer care, hospice or other end-of-life care, or pain being treated as part of palliative care practices. Upon any subsequent consultations for the same pain, the practitioner may issue, in accordance with existing rules and regulations, any appropriate renewal, refill, or new prescription for an opioid.

The proviso regarding chronic pain is also said by Gillibrand to apply here in some form (we don't get a link to the actual bill though given McCain supported it, some form of it should be around, right?). New York provides a FAQ.  One question specifically answered says that it is not necessarily the case that an in person visit is necessary to obtain a refill. This was an important concern. If a physician would otherwise supply a greater supply, would they not also extend without an additional visit?  The concern seems to be that many would be wary.  Thus, an essential issue here is detail.

Gillibrand voiced surprise at the opposition in part since she did not just make this up on the fly. It was looked at askance that she was co-sponsoring this with a Republican though one that from time to time comes off as sane.  As noted in the reply:

I wrote this bill in consultation with many experts and groups, including researchers, advocates, doctors, patients, and families of patients. It was based on CDC recommendations — and reflects a movement across the nation in which 15 states, including New York, already have laws that limit opioid prescriptions for acute pain.

One thing highlighted by the speakers at her rally yesterday is that she listens. I respect supporters who say this about her and take this seriously:

I have heard this level of criticism, and many of the concerns raised by patients and disability advocates were issues I had not previously heard. And I hear them now. ...

I am listening. I would be more than happy to meet with you to hear your ideas about how to make this bill better — and to ensure that it does what it was originally intended to do without harming patients. 

The proposal might simply be misguided. Perhaps, we should simply trust physicians here and that this is an unnecessary attempt to show she is properly fighting opiate addiction.  The breadth of "acute" pain alone suggests a certain gratuitous nature in requiring weekly prescriptions, even if merely by phone or whatnot. But, without more, even then, it seems a limited misstep. I respect those who are concerned that this will make it harder for people who need pain medication. This is not a trivial matter and it's part of a serious wider concern. Nonetheless, any number of policy tweaks have possible negative effects. Is this unique?  A reason not to support her?

Anyway, I do wonder how much it compares to my own state's policy. It turns out my own assemblywoman is on the Standing Committee on Alcoholism and Drug Abuse.  I am curious if she has an opinion of this proposal and if it overlaps with state policy. I sent an email to her but have not received a response.  It is granted that I could call up her office and this on me to some extent but if the office has a means to constant, they should be able to respond. Also, the questions are of a sort of detailed quality that the likely aide in her district office very well might not be able to answer.  Yes, I feel uncomfortable personally asking such things too. Kudos for those who do so.

I will try to continue to keep abreast on this issue. Doing a bit of due diligence like done here is not too hard and can be helpful.

---

* The coverage might confuse people. One publication noted that the requirement covers "the initial treatment of acute pain" but then "medical professionals would have to confirm they would not provide refills to those prescribed opioids for acute pain." 

I take this to mean that each seven day supply is separate so not a "refill" but perhaps a person can read that to mean it is a one and done deal. Serial weekly supplies amount to a form of "refill" even if by form the doctor (without needing a new examination) gives a new script each time.

Kirsten Gillibrand

Went to see her official send-off outside the Trump Tower near Lincoln Center (NYC) with various good introduction speakers including her old roommate Connie Britton. Like her partially given her long experience fighting the good fight (accepting an impressive 30 something newbie is a bit of an insult and stop comparing people to the VERY low Trump bar) in D.C. Kamala Harris is new there. Warren not as much but I think she would do better staying in the Senate making policy. All three are impressive though. Gillibrand focused on domestic matters; she needs to give a good foreign policy speech. Nothing on judges or the Electoral College (Warren suggested disposing of it.) Is it 2021 yet?

Mild Compliment Results in Attack of My Use of "Often"

[A self-labelled Republican who also has "Never Trump" tendencies repeatedly makes bad arguments in quickie posts in a blog and his comments on how court packing would violate "constitutional democracy" if done right away after the 2020 elections are of that caliber. I and others explain why here. Near the end, I provided a form of the below, in part because another self-labeled conservative explained why he finally lost patience with a resident troll. Took him a few years though.]

Justice Thomas asked a question in an oral argument earlier this week, the first time he did so in three years. I mentioned elsewhere that my opinion that he asked good questions over the years, "often" on race issues. I clarified that I meant that of the limited times he asked questions (such as a sparsely used pinch hitter), he often in that subset did so. I think he should ask more questions partially for that reason, partially since it gives a chance for advocates to address his atypical views. Also, him not asking questions EVER comes off as rude to some people. It's an unnecessary affront even if he doesn't intend it.

(A discussion of the case and a link to an article that includes his questions, minus the latest, making the case can be found here.  The blog is an impressive coverage of the Supreme Court by some high school students.*)

I'm not a fan of Thomas' jurisprudence generally and opposed his confirmation on grounds of inexperience alone (the sexual harassment issue added insult; public integrity is something basic to members of the Supreme Court) and didn't think the question posed this time that good. Basically, he flagged in case where the prosecution was found to commit racial bias repeatedly and allegedly did so again in a sixth attempt to convict that the defense used peremptory challenges against white jurors. As noted by Sotomayor, not only is that side not "on trial here" but there were few black jurors to strike anyhow.  But, that doesn't change my basic sentiment.

This is all said because when I did so someone strongly refuted my comment on Twitter. I noted that I didn't support Thomas generally, but did in this specific way. (Looking it up: "He asked some good questions -- often in race related questions -- over the years.")

Okay. Well, what are examples of his horrible questioning? The person pointed to the questions he posed that very day. That doesn't really refute my comment. I get the idea the person had no actual knowledge of his questioning (I alluded to questions Thomas posed in cases involving the KKK and public usage of crosses as an example.) The person then attacked my use of "often," noting in effect it would be curious if anyone else in the universe would use the word that way.

I understand the reason people are loathe to admit someone like Thomas is right even when he says that Bryce Harper is a dweeb, but at some point this sort of thing is tiresome. After repeatedly going back and forth with the person, harping on my use of "often" led to a "mute" from me.

====

* Some people, including some lawyers, ridicule oral arguments as pointless. Besides serving as the one time the general public gets a chance to listen (or see, in courts that deign to videotape) to the judges, there are other values to such arguments. Repeatedly, judges themselves have said so. I just read an old essay (found in a version of Judges on Judging") by Justice John Harlan II saying so.

At some point, I take them at their word -- they find oral arguments helpful. To toss it out there, one Supreme Court journalist suggested Justice Breyer might ask some questions with Justice Thomas in mind, the two sitting next to each other on the bench and at times chatting during oral arguments (see the High School SCOTUS interview with Chris Geidner).

SCOTUS Watch: It's Almost Spring Edition

There are various books on justices coming out (Roberts, O'Connor, Stevens [autobiography] and Thomas [later in year], after another biography of Ruth Bader Ginsburg came out last year. I suppose Sotomayor will also release some other autobiographical work or something too. Meanwhile, including by the person I recently referenced seeing, various criminal justice books are or did come out. For all you candidates out there.

Meanwhile, there was some Supreme Court action this week with another conference scheduled for Friday and more orals next week.  Following recent trends, there was news even when they only released orders. The big news is probably that they will take up non-unanimous juries (one state left though the case covers Louisiana, the John Legend supported change not retroactive).  Legend argued that they promoted racism, dissenting voices purposely blocked out as a matter of white supremacy. Unlike more popular non-usage of grand juries or civil juries for small claims, this has a good shot of going his way because it is an outlier to have a federal requirement not apply to the states.

The other cases are of interest as well including rules regarding the right to make an insanity defense. As she has over the years, Sotomayor also has a solo statement concerned about criminal justice issues, in this particular instance evidence a racist juror was involved in a capital case. The government was also asked to add their .02 in a few cases, including one involving alleged religious discrimination in employment. The latter issue has been something a few conservative justices have also flagged in various contexts though apparently not when someone was about to die.

whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry

We had two decision days. A thing that stood out was that the two Trump picks split in all three cases on Monday though only as a matter of scope on the big case of the day. The case had a somewhat narrow specific question regarding the statutory power to detain certain non-citizen aliens (including lawful residents; not just so-called "illegals") without bail hearings. But, as noted here, as well as the dissent (Breyer dissented from the bench for the liberals), there is a wider principle and likely future effect involved. Likewise, to the degree the provision can have various possible meanings, what might be deemed "Footnote 4 constitutional avoidance" should be guided more Breyer's way.  This is so even if the ultimate solution here is changing the actual law.

Kavanaugh wrote for the Court with Gorsuch writing for the "High Federalists" (himself, Alito and Thomas) in a maritime liability case.  It's useful to remember that (like in today's special case so bad everyone but maybe Thomas can join in against racism) the problem with the two Trump picks was not that they will always be wrong.  Kavanaugh was a divisive partisan hack who bullshitted (at best) Congress and had a strong case that he was a sexual predator.  Gorsuch filled a stolen seat while being a run of the mill Federalist Society baby (plus, he comes off as smarmy).  So, e.g., maybe Gorsuch will turn out (inspired in some way by being on a court of appeals covering over seventy tribes) friendly to Native Americans. Not going to suddenly handwave how he got there.

There was less heat in today's opinions, one a per curiam (with merely Justice Thomas not joining the punt), the other a unanimous debt collection case.  My interest there was Sotomayor's brief concurrence in effect saying "eh ... not sure ... but the majority does the best job we can and if Congress thinks we are wrong, they can fix it."  A honest response to various statutory questions which result in what is a basic (if less exciting for most) part of the justices job -- someone has to settle these questions. They very well might not be right each time, but they are "Supreme." Plus, in these statutory cases, a legislative fix (if at times hard to come by) is possible.

Notable oral arguments. Along with next week, the Court deals with some more racial and political gerrymander stuff. The results are unclear. Next week also brings the sensitive question of the reach of "deference" to federal agencies. There is a range of options there as well.  As noted above, today also involved an apparently blatant case of racial discrimination in jury selection, which gives conservatives a chance to join in against racism. Maybe, Thomas figured he was the only one somewhat sympathetic and that is why he asked a question. He last did it in regard to the reach of a regulation on guns with only Sotomayor joining his dissent (and not the 2A portion).  He has asked good questions in the past. And, even if they are bad, doing so provides advocates a chance to respond to his atypical views.  OTOH, maybe Breyer serves as his mouthpiece at times?

Spring begins 5:58 P.M.

Happy Holidays! (March 17-19)

St. Pats (Irish), St. JP (Irish/Italian mutts), St. Joseph's (Italian).

Betraying Big Brother: The Feminist Awakening in China

I added two books to the side panel covering civil rights history, one involving an infamous blinding of a returning black serviceman in the 1940s, and the other covering the feminist movement in China in recent years. A video of the "feminist five" is included and feel it necessary to also cover a certain "armpit" contest referenced in the book.

Two More Book Events

I really don't take advantage of what the city has to offer but have my moments. Strand Bookstore again provided an author appearance (this time with the added value of former president of Planned Parenthood, Cecile Richards) for a $15 gift card or the book ($25). Not sure Amber Tamblyn's feminist manifesto is worth reading, but appreciated the opportunity. The NYU panel on a criminal justice book (with the author, activist Shaun King and a professor) was better. Not only was it free, but they had a free lunch (choice of sandwich [hummus for me] with cookie, chips and water/soda). Plus, doggies at a local dog park.

And Also: Nice this was public again but the usual b.s. on the "problems" of cameras and no, Justice Kagan, you don't explain all your decisions. Questioning seemed a bit brief given the opportunity. Let's see how the being considered ethics rule goes.

SCOTUS Watch: Future of Religious Clause Jurisprudence

There has been a lot of interesting actions outside of regular opinions (relatively unsurprising, including the three today, though RBG having two shows she was active during her time "off"), including today. Kavanaugh (with Alito and Gorsuch) agreed in not taking a case that denied preservation grants to religious buildings in particular, but flagged their interest in broadly defining equality in funding matters long term.

He (continually a blot on the Court and the U.S. Senate), however, noted special facts here and the value of letting the issue "percolate" in the lower courts some more. I continue to respect Sotomayor's dissent in the Trinity Lutheran case, but either way, surely government funding of a church is more controversial than playground funds! I also note an interesting article (h/t Religion Clause Blog, which has a lot of resources) entitled "Christian Legislative Prayers and Christian Nationalism." Also, this piece on the Peace Cross oral argument (the lower court opinion is also worth reading). Patent case also taken.

Also: One case had some interesting aspects, including the two most conservative justices on the side of the workers in dispute involving a relatively small sum but broader implications. The company argued (FN2) the overall solvency of the workers retirement system was at stake. The dissent also took a dig at "Chevron" deference, which wasn't really necessary to decide the matter here. Note the brief/filings link.

Sen. Biaggi Budget Event

I simply have not paid much attention to local government, which is on me but also because there was no real neighborhood invitation to do so. For instance, where are the flyers or notices of local meetings or meet-ups with members of the city council or state legislature? I think safe seats hurts the situation more so. Two upsets involving my own district offers a chance for me to pay more attention. Sen. Biaggi noting the below event was new underlines my point here on both fronts.

I went to an event at Manhattan College (which is now in the Bronx) where twenty seven speakers (I briefly took notes) told state Sen. Biaggi (who upset Jeff Klein, who led the "independent Democrats" who caucused with Republicans) talked about their concerns. Multiple union representatives supported a tax break to promote tv/film. Multiple people had some sort of connection to religious groups. Most represented some group but each as a whole did a good job promoting their causes. It was an educational exercise in civics though one media representative was a tad more negative (including saying Biaggi, basically as a newbie, will bring in a lot less money than her predecessor).