Reprise. Same 5-4 vote, early enough this time. Breyer (with RBG) added that the whole affair underlines the death penalty itself is problematic. The court of appeals said they were bound by the earlier vote though suggested if baby aspirin was used as the sedative, it might be a problem. I question that for at least three justices. Price's last words were: "A man is much more than his worst mistake." He was 19 when he helped to commit the murder. Good summary. There was a June execution scheduled (first botched); he died of natural causes. ETA: I noticed that this time the order regarding the application of stay had this: "applications for leave to file the application for stay and the response under seal with redacted copies for the public record are granted." This was provided for in previous litigation and is part of a general matter of concern (as noted before, Sotomayor flagged it too).
About Me
- Joe
- This blog is the work of an educated civilian, not of an expert in the fields discussed.
Thursday, May 30, 2019
Tuesday, May 28, 2019
SCOTUS Watch: Abortion Punt
The big news (coming early with the Order List) is that the Supreme Court punted in one of pending abortion cases, which is fairly unsurprising. Six justices let the brief per curiam speak for the Court, the extended time spent waiting apparently to give Justice Thomas the chance to explain the history of eugenics, covering birth control as well. Sotomayor and RBG (with brief opinion) would have let the lower court overturn of the "fetal remains" (again, a "fetus" is often not involved here) stand. That would have been the right call, but the action here is basically a sigh of relief moment.
The majority, noting that Planned Parenthood here used rational basis review, held the concern for proper treatment of remains here was rational, legitimate (even using precedent when the test was strict scrutiny) and validly applied here. The fit using a lower standard of review need not be a "perfect fit." The opinion did not actually engage with the specifics of why the lower court decided as it did. Thomas added that it was "manifestly inconsistent" with precedent for the lower court to decide as it did. It "would go without saying" that the Constitution allows the state to require "abortion facilities to provide for the respectful treatment of human remains."
The lower court determined that the law was not legitimate because it treated the remains as if a "person" is involved and found that is not acceptable using the Court's precedents. The overlap here with "human" remains was not deemed obvious. It was aware that the Supreme Court upheld past remains laws, but found the specifics here problematic. As noted by RBG, a look at the specifics clouds the state interest. The state broadly allows an individual to dispose of remains and allows the clinics to cremate "embryonic and fetal tissue from multiple pregnancies together" (to quote one lower court opinion with nuanced language), which cannot be done with other "human" remains. The law singles out clinics when setting the rules here and even there we again see abortion is not the same.*
RBG argues the Court should not have granted cert. and summarily reverse since she thinks the law would be suspect if the proper undue burden standard was used. The case simply was not cert worthy given its narrow nature (strategic use of rational basis review). I would underline that it amounts to error correction, which it generally says it doesn't do, and contra Thomas, the specifics make clear error quite debatable. This type of law being repeatedly an issue, this back of the hand treatment may come off as reasonable compromise to toss a bone to conservatives, but a bad use of the Court's power. If -- see however the crisis pregnancy case -- I thought the Supreme Court would actually handle things in an acceptable way, I would wish for full review to show the right way to handle the nuances. Sotomayor, without comment, would have denied review. I concur.
The justices also held that the other provision, an abortion ban "solely because of the fetus’ sex, race, disability or a handful of other protected traits," was not ripe for review since basically only one lower court addressed such a law so far. Justice Thomas concurred alone here to flag the history ("history") of eugenics, including when only birth control is involved. He tossed in a comment that RBG's opinion didn't really make sense, apparently to make sure people really thought him offensive (RBG in part answered him in a footnote). Other than taking the time to actually say it aloud (cf. the trans student case), this is a fairly standard move. Thus, the result here is striking down the law is left in place.
The emotional responses to such laws are to be expected but what is the ultimate argument? Let's say some parent of a child with a condition is very upset at the idea you support aborting a fetus [better phrased since often the decision is made later] of the same type. The basic idea is you do not honor the child's right to exist. An unjust statement, especially to the degree many pro-choice people are more likely to support government resources to care for their needs. But, is the person appalled if a couple chooses not to have children (using sterilization) or perhaps not even marrying because of the risk of conception here. This shows the breadth of Thomas' concurrence. The argument tends to turn on abortion. If so, "eugenics" is at least partially misleading.**
This being a blog post, I can address the merits. First, there does not really appear to be a reason in this country (cf. China) that sex or race in any significant way is being used to have abortions. And, even if it was, the enforcement of such a rule (including "solely") would be problematic. It would basically encourage doctors and patients not to have open dialogues. Or, single out certain groups for suspicion. Of course, there are numerous (though it remains relatively a small percentage of the total) abortions done because of some sort of abnormality or risk of same. At some point, few really would deny them as suggested by the number of states that allow Medicaid funding in such cases. The issue of line-drawing is sensitive but even if you thought it unjust to abort let's say a Down Syndrome fetus, the same issues of enforcement can arise.
At the end of the day, there is a basic right here to choose. A person very well might be deemed wrong to not be friends with a black person, to take a blatant case. Nonetheless, they have a constitutional right of association. The same applies when choosing what to do with one's body in this instance. I can even think of hypos where a sex specific abortion might be deemed acceptable on the merits (what if a fifth pregnancy is involved when you have four children of one sex? is "solely" a problem if the sex might be more likely to carry a condition? if a rape victim or someone who had an affair is willing to have a white but not a black child [or vice versa] is that an issue? etc.). But, ultimately, that doesn't matter on a constitutional level.
The concern for eugenics, putting aside that you probably shouldn't trust Justice Thomas' framing of the history (though he is careful to be somewhat lenient on Margaret Sanger), is particularly dubious if we take this into consideration. The problematic history is forced eugenics. Buck v. Bell is not a problem because Carrie Buck freely chose to be sterilized, even to the extent she was pressured by bad facts and/or principle. It was being forced to do so. Eugenics as a theory as a whole was and is a problem. But, as with miscegenation, the answer is not to remove free choice.
The one case taken will re-examine the question of even letting a lawsuit be raised involving a shooting at a border crossing. Among the cases lost among the cert. denied pile is one involving the sensitive question of trans students using bathrooms and locker rooms (here with privacy stalls) at school that was relisted repeatedly. This suggests one or more justices was concerned, but the denial was made without comment.
The handing down of the full opinions was mostly anticlimactic though we had a rare case of Thomas writing for the liberals regarding removing a class action to federal court. Alito for the other conservatives started his dissent with the concern about the importance of a neutral forum. How does this relate to the federal courts? (ha ha) This is one of those cases where it might be helpful if the advocates could address any specific concerns of Justice Thomas, who can have idiosyncratic views on such issues. Sotomayor spoke for an unanimous Court regarding settling rules involving a Social Security Act claim. And, she had the lone dissent, concerned the majority (with concurrences) was not concerned enough about the problem of retaliatory arrests that raise First Amendment claims. Fairly low drama stuff.
[ETA: Thomas, RBG and Gorsuch dissented in part; Thomas didn't like a protective exception, the other two would have been more protective. This article flags the troubling nature of this case though not sure how much it alone moves the needle.]
(The 5-4 breakdown, happening so far with each conservative but Alito, is atypical enough to be not too notable. What it basically shows is that the justices aren't completely split into ideological camps though even here they are rather notable. The diversity and complexity of issues are going to result in the justices not to be completely able to be put into pigeonholes.)
Meanwhile, will there be no clinics in Missouri?! Note in particular the telemedicine ban, which is particularly important when medical abortion provides a partial relief to lack of abortion providers. It is also important to look at details when a law requires a waiting period. Does the state allow the person to get informed consent over the phone or by video chat?
---
* This article provides additional discussion citing three categories of concern: road to "personhood," undue burden TRAP laws and generally unreasonable. Language here repeatedly has a divisive religious connotation. One possible problem is finding an authorized agent that is willing to work with a clinic. Cremation itself, contrary to a few allegations I have seen, is not inherently religious. But, like certain regional hospitals, religious beliefs can cause issues here.
And, there is no one approach that all would support. The ability of a woman on her own to dispose of the remains in part reflects the realization that different people have different beliefs on the matter. Like Thomas' problematic general use of "mother," a true respect for conscientious concerns very well might work against the law. Again, perhaps a more in depth analysis would be helpful.
** Those who have a child with a special condition should not be assumed to be appalled at leaving the choice to the pregnant person. The parent repeatedly talks about the problems such children often bring, including hardships to the child. One story, e.g., recently referenced the death of a young child with a certain facial abnormality. The child had to undergo numerous painful procedures to address the various problems arising from the condition, the visual (which resulted in negative remarks etc. with the human spirit and love winning out details) but part of the issue. The decision that it would be immoral to give birth to someone with such a future is at the very least open to debate.
The majority, noting that Planned Parenthood here used rational basis review, held the concern for proper treatment of remains here was rational, legitimate (even using precedent when the test was strict scrutiny) and validly applied here. The fit using a lower standard of review need not be a "perfect fit." The opinion did not actually engage with the specifics of why the lower court decided as it did. Thomas added that it was "manifestly inconsistent" with precedent for the lower court to decide as it did. It "would go without saying" that the Constitution allows the state to require "abortion facilities to provide for the respectful treatment of human remains."
The lower court determined that the law was not legitimate because it treated the remains as if a "person" is involved and found that is not acceptable using the Court's precedents. The overlap here with "human" remains was not deemed obvious. It was aware that the Supreme Court upheld past remains laws, but found the specifics here problematic. As noted by RBG, a look at the specifics clouds the state interest. The state broadly allows an individual to dispose of remains and allows the clinics to cremate "embryonic and fetal tissue from multiple pregnancies together" (to quote one lower court opinion with nuanced language), which cannot be done with other "human" remains. The law singles out clinics when setting the rules here and even there we again see abortion is not the same.*
RBG argues the Court should not have granted cert. and summarily reverse since she thinks the law would be suspect if the proper undue burden standard was used. The case simply was not cert worthy given its narrow nature (strategic use of rational basis review). I would underline that it amounts to error correction, which it generally says it doesn't do, and contra Thomas, the specifics make clear error quite debatable. This type of law being repeatedly an issue, this back of the hand treatment may come off as reasonable compromise to toss a bone to conservatives, but a bad use of the Court's power. If -- see however the crisis pregnancy case -- I thought the Supreme Court would actually handle things in an acceptable way, I would wish for full review to show the right way to handle the nuances. Sotomayor, without comment, would have denied review. I concur.
The justices also held that the other provision, an abortion ban "solely because of the fetus’ sex, race, disability or a handful of other protected traits," was not ripe for review since basically only one lower court addressed such a law so far. Justice Thomas concurred alone here to flag the history ("history") of eugenics, including when only birth control is involved. He tossed in a comment that RBG's opinion didn't really make sense, apparently to make sure people really thought him offensive (RBG in part answered him in a footnote). Other than taking the time to actually say it aloud (cf. the trans student case), this is a fairly standard move. Thus, the result here is striking down the law is left in place.
The emotional responses to such laws are to be expected but what is the ultimate argument? Let's say some parent of a child with a condition is very upset at the idea you support aborting a fetus [better phrased since often the decision is made later] of the same type. The basic idea is you do not honor the child's right to exist. An unjust statement, especially to the degree many pro-choice people are more likely to support government resources to care for their needs. But, is the person appalled if a couple chooses not to have children (using sterilization) or perhaps not even marrying because of the risk of conception here. This shows the breadth of Thomas' concurrence. The argument tends to turn on abortion. If so, "eugenics" is at least partially misleading.**
This being a blog post, I can address the merits. First, there does not really appear to be a reason in this country (cf. China) that sex or race in any significant way is being used to have abortions. And, even if it was, the enforcement of such a rule (including "solely") would be problematic. It would basically encourage doctors and patients not to have open dialogues. Or, single out certain groups for suspicion. Of course, there are numerous (though it remains relatively a small percentage of the total) abortions done because of some sort of abnormality or risk of same. At some point, few really would deny them as suggested by the number of states that allow Medicaid funding in such cases. The issue of line-drawing is sensitive but even if you thought it unjust to abort let's say a Down Syndrome fetus, the same issues of enforcement can arise.
At the end of the day, there is a basic right here to choose. A person very well might be deemed wrong to not be friends with a black person, to take a blatant case. Nonetheless, they have a constitutional right of association. The same applies when choosing what to do with one's body in this instance. I can even think of hypos where a sex specific abortion might be deemed acceptable on the merits (what if a fifth pregnancy is involved when you have four children of one sex? is "solely" a problem if the sex might be more likely to carry a condition? if a rape victim or someone who had an affair is willing to have a white but not a black child [or vice versa] is that an issue? etc.). But, ultimately, that doesn't matter on a constitutional level.
The concern for eugenics, putting aside that you probably shouldn't trust Justice Thomas' framing of the history (though he is careful to be somewhat lenient on Margaret Sanger), is particularly dubious if we take this into consideration. The problematic history is forced eugenics. Buck v. Bell is not a problem because Carrie Buck freely chose to be sterilized, even to the extent she was pressured by bad facts and/or principle. It was being forced to do so. Eugenics as a theory as a whole was and is a problem. But, as with miscegenation, the answer is not to remove free choice.
The one case taken will re-examine the question of even letting a lawsuit be raised involving a shooting at a border crossing. Among the cases lost among the cert. denied pile is one involving the sensitive question of trans students using bathrooms and locker rooms (here with privacy stalls) at school that was relisted repeatedly. This suggests one or more justices was concerned, but the denial was made without comment.
The handing down of the full opinions was mostly anticlimactic though we had a rare case of Thomas writing for the liberals regarding removing a class action to federal court. Alito for the other conservatives started his dissent with the concern about the importance of a neutral forum. How does this relate to the federal courts? (ha ha) This is one of those cases where it might be helpful if the advocates could address any specific concerns of Justice Thomas, who can have idiosyncratic views on such issues. Sotomayor spoke for an unanimous Court regarding settling rules involving a Social Security Act claim. And, she had the lone dissent, concerned the majority (with concurrences) was not concerned enough about the problem of retaliatory arrests that raise First Amendment claims. Fairly low drama stuff.
[ETA: Thomas, RBG and Gorsuch dissented in part; Thomas didn't like a protective exception, the other two would have been more protective. This article flags the troubling nature of this case though not sure how much it alone moves the needle.]
(The 5-4 breakdown, happening so far with each conservative but Alito, is atypical enough to be not too notable. What it basically shows is that the justices aren't completely split into ideological camps though even here they are rather notable. The diversity and complexity of issues are going to result in the justices not to be completely able to be put into pigeonholes.)
Meanwhile, will there be no clinics in Missouri?! Note in particular the telemedicine ban, which is particularly important when medical abortion provides a partial relief to lack of abortion providers. It is also important to look at details when a law requires a waiting period. Does the state allow the person to get informed consent over the phone or by video chat?
---
* This article provides additional discussion citing three categories of concern: road to "personhood," undue burden TRAP laws and generally unreasonable. Language here repeatedly has a divisive religious connotation. One possible problem is finding an authorized agent that is willing to work with a clinic. Cremation itself, contrary to a few allegations I have seen, is not inherently religious. But, like certain regional hospitals, religious beliefs can cause issues here.
And, there is no one approach that all would support. The ability of a woman on her own to dispose of the remains in part reflects the realization that different people have different beliefs on the matter. Like Thomas' problematic general use of "mother," a true respect for conscientious concerns very well might work against the law. Again, perhaps a more in depth analysis would be helpful.
** Those who have a child with a special condition should not be assumed to be appalled at leaving the choice to the pregnant person. The parent repeatedly talks about the problems such children often bring, including hardships to the child. One story, e.g., recently referenced the death of a young child with a certain facial abnormality. The child had to undergo numerous painful procedures to address the various problems arising from the condition, the visual (which resulted in negative remarks etc. with the human spirit and love winning out details) but part of the issue. The decision that it would be immoral to give birth to someone with such a future is at the very least open to debate.
Saturday, May 25, 2019
Founding Faith
And Also: Memorial Day -- honoring those who died in wars -- is upon us and to me the best way to truly honor that is to promote peace. Trump wants to go another way.
As noted in Founding Faith: Providence, Politics, and the Birth of Religious Freedom in America by Steven Waldman, James Madison (whose first elected turned on the evangelical vote) more than Jefferson understood the power of the "tradition, ritual, and sheer nonrational spiritual power of faith." This is not to say that "religion" can be a more rational affair as someone like Thomas Jefferson and others think. But, the term does have those aspects as a general matter. To the extent that a non-theistic ritual, such as a marriage, has a "religious" component, we see this. Likewise, many Jews might basically be atheists, but honor tradition. Finally, there is a certain aspect of human existence that is not led by mere reason. We see this in everyday life in matters not related to religion when observing basic human affairs. Limiting our actions even if they might not seem "reasonable" would be rather oppressive. Even many atheists recognize this.
As noted in that book, religious liberty was developed in this country for a variety of reasons. There was a basic understanding that religion was a necessary part of life, in part because few doubted their was a God and an an afterlife. The science of the day along with years of social conditioning made it not surprising that God was seen as logical. It is more complicated to figure out a purely rational argument that a "watchmaker" God has to be concerned with our well being. If this is granted, an afterlife and final judgment can be rationalized.
Religion was seen as necessary for a good life and for good citizens. If used in a broad sense, including a broad view of "freedom of conscience" (a term often used and assumed to overlap with belief in God), this can be granted in some fashion.* Anyway, religion is an important aspect of human existence and religious freedom is rightly deemed essential. This is so even if you think some religious beliefs are absurd. The pragmatic aspects of accepting religious diversity and respecting diverse groups in the book is cited as a major concern of George Washington during the Revolutionary War. The fear of Catholics was particularly uncomfortable when trying to get the French on our side. This comes up today in various forms.
Thomas Jefferson supported religious freedom largely because he saw it necessary for freedom of thought. James Madison also was concerned about the problems of government corrupting religion, including in practice favoring certain religions over others. Washington and John Adams accepted some mixture of church and state, the former especially concerned however to do so in a pluralistic way. The book at one point says the 99% of the population was Protestant. Things are a lot different now and even establishments that honor "God" can be problematic these days. At the very least, pluralism requires more strict rules.
The book spells out that not only did religious liberty concerns help influence the American Revolution (both as an incentive to rebel against England specifically and justifying rebellion in principle), but there was a dark side as well. Early settlers saw "free exercise of religion" to be necessary because so many did not follow God's will appropriate and thought that meant setting up colonial settlements that discriminated against such groups. Anti-Catholic sentiment (in part since the pope mixed church and state -- Catholics were loyal to a foreign state, not England) was a major influence. Our constitutional system has a dark side and not just in the context of slavery and Native Americans.
And, part of the First Amendment was to give states discretion to favor certain religious beliefs, though even there, by 1791, we were talking fairly benign establishments as compared to the likes of Saudi Arabia. Let's not go too far there. It took until the mid-20th Century to overturn a requirement that one took an oath that they believed in God to become a notary public. Various states favored Christians or certain types of Christians (such as belief in the trinity). In the 19th Century, Catholics were discriminated in various ways, including in public schools. Finally, the Fourteenth Amendment itself showed the need of limits on states. The opening suggests we have a ways to go.
But, religious freedom remains a public good, especially if it is taken in the right frame of mind.
----
* A recent post discussed how a "prayer" at legislative gathering need not by definition involve appeals to God. "Religion" as a whole can and should be seen in such open-ended terms. Some say they are "spiritual" but not "religious" in part because the second term has to them troubling implications like a rule based approach or so forth. There very well might be some differences there. Ditto those two things and "conscience."
But, religious liberty includes all and parsing the things to me is rather complicated. A good life very well requires as a general matter some system of values and belief that you are bound by it for some reason. This tends to include some sort of rituals (like marriage) and other things that has religious implications. The final aspect -- an afterlife and judgment -- is somewhat different. (One might say "rather" different though life itself can bring its own karma.) But, many people -- unlike belief in some sort of god or gods -- these days do not believe in that anyway.
Freedom of religion includes the right to choose here, something that history showed has a pragmatic value.
She claims that Christianity teaches “free will” and, as a result, laws preventing a women’s choice to abort a baby are not Christian.I respect John Fea, an evangelist who teaches history and dissents from the current pro-Trump sentiment among evangelist. After all, he is even a Mets fan. But, move past the "baby" part (many don't think an embryo in early pregnancy, where most abortions occur, is a "baby"), his denunciation of Sen. Gillibrand's "wacky" position is rather off base. If he is upset at simplistic statements of theology from a politician, perhaps he can be consistent and denounce when such generalists make simplistic economic statements or whatever. And, compare the statement here:
Religious bodies and religious persons can continue to teach their own particular views to their constituents with all the vigor they desire. People whose conscience forbids abortion are not compelled by law to have abortions. They are free to practice their religion according to the tenets of their personal or corporate faith. The reverse is also so now true since the Supreme Court decision. Those whose conscience or religious convictions are not violated by abortion may not now be forbidden by a religious law to obtain an abortion if they so choose.So wrote The Baptist Press' Washington bureau chief right after Roe v. Wade was decided. Catholics for Choice, reflecting the beliefs of many of that faith (at least people who surely think of themselves and are treated as), believe that their faith includes free will and the personal choice to make that decision. Many Christian sects believe that abortion, at least in some cases, is a moral choice that does not violate Christianity and that part of their faith is individual choice. In 1971, the Southern Baptist Convention (after noting some "Christians," no scare quotes implied, had a more open-ended view) resolution on abortion that included this:
Be it further RESOLVED, That we call upon Southern Baptists to work for legislation that will allow the possibility of abortion under such conditions as rape, incest, clear evidence of severe fetal deformity, and carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother.This reflected the moderate abortion reform of the day. A few states basically completely liberalized abortion laws to the extent shown in Roe v. Wade. Others basically pushed for “therapeutic” abortions that basically overlap with those categories. The last is an open-ended understanding of "health" and though "carefully ascertained" has a touch of "let's not go too far here," it is unclear where one draws the line there. If a women doesn't want to have a baby (again, merely being pregnant is not deemed to have a baby in the minds of many), forcing her to do so is likely to damage her "emotional, mental, and physical health."
As noted in Founding Faith: Providence, Politics, and the Birth of Religious Freedom in America by Steven Waldman, James Madison (whose first elected turned on the evangelical vote) more than Jefferson understood the power of the "tradition, ritual, and sheer nonrational spiritual power of faith." This is not to say that "religion" can be a more rational affair as someone like Thomas Jefferson and others think. But, the term does have those aspects as a general matter. To the extent that a non-theistic ritual, such as a marriage, has a "religious" component, we see this. Likewise, many Jews might basically be atheists, but honor tradition. Finally, there is a certain aspect of human existence that is not led by mere reason. We see this in everyday life in matters not related to religion when observing basic human affairs. Limiting our actions even if they might not seem "reasonable" would be rather oppressive. Even many atheists recognize this.
As noted in that book, religious liberty was developed in this country for a variety of reasons. There was a basic understanding that religion was a necessary part of life, in part because few doubted their was a God and an an afterlife. The science of the day along with years of social conditioning made it not surprising that God was seen as logical. It is more complicated to figure out a purely rational argument that a "watchmaker" God has to be concerned with our well being. If this is granted, an afterlife and final judgment can be rationalized.
Religion was seen as necessary for a good life and for good citizens. If used in a broad sense, including a broad view of "freedom of conscience" (a term often used and assumed to overlap with belief in God), this can be granted in some fashion.* Anyway, religion is an important aspect of human existence and religious freedom is rightly deemed essential. This is so even if you think some religious beliefs are absurd. The pragmatic aspects of accepting religious diversity and respecting diverse groups in the book is cited as a major concern of George Washington during the Revolutionary War. The fear of Catholics was particularly uncomfortable when trying to get the French on our side. This comes up today in various forms.
Thomas Jefferson supported religious freedom largely because he saw it necessary for freedom of thought. James Madison also was concerned about the problems of government corrupting religion, including in practice favoring certain religions over others. Washington and John Adams accepted some mixture of church and state, the former especially concerned however to do so in a pluralistic way. The book at one point says the 99% of the population was Protestant. Things are a lot different now and even establishments that honor "God" can be problematic these days. At the very least, pluralism requires more strict rules.
The book spells out that not only did religious liberty concerns help influence the American Revolution (both as an incentive to rebel against England specifically and justifying rebellion in principle), but there was a dark side as well. Early settlers saw "free exercise of religion" to be necessary because so many did not follow God's will appropriate and thought that meant setting up colonial settlements that discriminated against such groups. Anti-Catholic sentiment (in part since the pope mixed church and state -- Catholics were loyal to a foreign state, not England) was a major influence. Our constitutional system has a dark side and not just in the context of slavery and Native Americans.
And, part of the First Amendment was to give states discretion to favor certain religious beliefs, though even there, by 1791, we were talking fairly benign establishments as compared to the likes of Saudi Arabia. Let's not go too far there. It took until the mid-20th Century to overturn a requirement that one took an oath that they believed in God to become a notary public. Various states favored Christians or certain types of Christians (such as belief in the trinity). In the 19th Century, Catholics were discriminated in various ways, including in public schools. Finally, the Fourteenth Amendment itself showed the need of limits on states. The opening suggests we have a ways to go.
But, religious freedom remains a public good, especially if it is taken in the right frame of mind.
----
* A recent post discussed how a "prayer" at legislative gathering need not by definition involve appeals to God. "Religion" as a whole can and should be seen in such open-ended terms. Some say they are "spiritual" but not "religious" in part because the second term has to them troubling implications like a rule based approach or so forth. There very well might be some differences there. Ditto those two things and "conscience."
But, religious liberty includes all and parsing the things to me is rather complicated. A good life very well requires as a general matter some system of values and belief that you are bound by it for some reason. This tends to include some sort of rituals (like marriage) and other things that has religious implications. The final aspect -- an afterlife and judgment -- is somewhat different. (One might say "rather" different though life itself can bring its own karma.) But, many people -- unlike belief in some sort of god or gods -- these days do not believe in that anyway.
Freedom of religion includes the right to choose here, something that history showed has a pragmatic value.
Thursday, May 23, 2019
Execution Watch: Robert Long
Last week, we had two executions go without an apparent hitch, the Supreme Court dealing with final appeals two days ahead of time. The concern there was that one of the people executed (putting aside the long time on death row, a continuing concern) rehabilitated himself enough to warrant commutation. The daughter (if not the son) of the victim herself supported the move. Plus, though the murder was horrible and all, a single murder of a spouse did not seem "worse of the worst" territory.
I repeat this in part to recall that even if these people were executed, the cases are still with us. Also, to compare to the crimes of the person scheduled for execution this week. Florida executed two people last year, each for single murders. The person here is the type of "worse of the worst" that might be deemed a poster boy for execution. But, he has been in prison for thirty-five years. So, even if we ignore that allowing executions (like torture etc.; yes, there is overlap) will involve less blatant cases too and resist the idea that state authorized homicide is wrong, what value is it to execute him now?
Justice Breyer (along with Stevens) flagged this problem over the years, including in his Glossip v. Gross dissent:
The article also noted:
He was executed apparently on time after no public dissents to final appeals earlier today. Execution scheduled next week.
---
* Looking at the various applications for stays (each case in the orders have a docket number, which can be searched for on the Supreme Court website, providing lots of reading material), his specific medical condition was flagged. Other claims, including being on death row for so long, was as well.
One or more justices very well probably was sympathetic, but do not each and every time repeat their same concerns. This is standard practice and sensible as a general rule, but given the limited number of executions and the importance of the matter, I would like at least one justice to at least summarize things (or flag the strongest arguments) each time. The standard "we oppose the death penalty" each and every time, even when that isn't the specific matter at hand, that Brennan and Marshall did to me is not necessary and a tad counterproductive.
I at least don't like (as has happened) justices to say they would stay (or oppose a stay) and not say why. [footnote added]
Long, now 65, pleaded guilty to killing eight women in the Tampa Bay area during an eight-month period in 1984. He was sentenced to death in 1985 for the murder of 22-year-old Michelle Denise Simms. He also claimed to have raped at least 40 women.The other person executed was nineteen at the time of the offense, so raised an argument that the death penalty should only occur for those over twenty-one. There is some logic to this, but eighteen is a firmer line, including since it is in various respects an average age for adulthood. But, the person there otherwise seemed worthy of execution because it was such a heinous multiple murder, two involving young children. The murders also were horrible because of reportedly it arose because of a trivial dispute. I think there was a bit more backstory than argument over a truck involved.
I repeat this in part to recall that even if these people were executed, the cases are still with us. Also, to compare to the crimes of the person scheduled for execution this week. Florida executed two people last year, each for single murders. The person here is the type of "worse of the worst" that might be deemed a poster boy for execution. But, he has been in prison for thirty-five years. So, even if we ignore that allowing executions (like torture etc.; yes, there is overlap) will involve less blatant cases too and resist the idea that state authorized homicide is wrong, what value is it to execute him now?
Justice Breyer (along with Stevens) flagged this problem over the years, including in his Glossip v. Gross dissent:
These lengthy delays create two special constitutional difficulties. First, a lengthy delay in and of itself is especially cruel because it subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement. Second, lengthy delay undermines the death penalty’s penological rationale.(Citations and such omitted.) The delays are a result of state mistake and inaction as much as defendant stonewalling techniques. The push to speed things along leads to problems because there are real constitutional concerns (if not all successfully litigated) involved. This was covered by Breyer and Sotomayor in the last full court opinion in this area. Breyer also covers how retribution rationales are weaker when you execute someone so much later. As to the confinement conditions, they are is some fashion tied to the sentence. It is an overall problem, including solitary confinement. But, the death penalty worsens the situation.
The article also noted:
Long’s attorney filed a motion ... earlier this month requesting a stay of execution. The motion stated Long is mentally ill and suffers from a form of epilepsy because of a traumatic brain injury.It also claims there is a risk that the lethal injection drugs will fail (one article said seizures but can be also more open-ended looking at a last minute petition).* The rejection of this claim as untimely (if not also unproven) is probably sensible, especially given recent rulings. Since only six people obtained clemency in Florida since executions started again since the mid-1970s (if many more before), the call for commutation is generally a longshot. Still, the argument this isn't a "deterrent" is probably strong, if somewhat besides the point if you are relying on retribution. On that front, see above.
He was executed apparently on time after no public dissents to final appeals earlier today. Execution scheduled next week.
---
* Looking at the various applications for stays (each case in the orders have a docket number, which can be searched for on the Supreme Court website, providing lots of reading material), his specific medical condition was flagged. Other claims, including being on death row for so long, was as well.
One or more justices very well probably was sympathetic, but do not each and every time repeat their same concerns. This is standard practice and sensible as a general rule, but given the limited number of executions and the importance of the matter, I would like at least one justice to at least summarize things (or flag the strongest arguments) each time. The standard "we oppose the death penalty" each and every time, even when that isn't the specific matter at hand, that Brennan and Marshall did to me is not necessary and a tad counterproductive.
I at least don't like (as has happened) justices to say they would stay (or oppose a stay) and not say why. [footnote added]
Wednesday, May 22, 2019
Lust Enough To Share
As suggested by my recent multi-post discussion of obscenity cases, I have some interest in that genre. Fairly regularly, there are some soft porn movies on late night (around 1AM), particularly on Showtime. Over the years, those who keep track, might notice familiar faces and production companies. So, we had take-offs of genre films like The Devil Wears Nada, which is an amusing take-off of the film with more than one actor (actress) with some skill and style. The leading cast members there popped up in various films. The same with as noted more recently actresses like AJ Applegate.
The subject film is one of the lesser films (aka Adventures with the Bumgartners, which to those familiar with title shows it is a sequel of a popular film) though it decent enough -- it doesn't look as cheap like some of the films shown, which are more about showing women with fake looking breasts apparently. A favorite of mine is Lust on the Line, which is a collection of extended vignettes pattered around a sex host on the radio, ending with well crafted scene involving the host herself. I do not claim reality here, but we are talking extended scenes that show some class.
The one here is a bit garbled -- there is about a five minute introduction in a kitchen (after opening credits involving a couple kissing or something in an artsy sort of framing) that appears to be geared toward those familiar with the first film. "Mrs. B." is a clear flag there. We also get some sense one person is supposed to be the daughter though the age difference doesn't seem that much different. Anyway, we soon have a somewhat quick lesbian scene involving the mom and some other character who I'm not clear about. Then, the babysitter from the first movie has a scene with her girlfriend, played by familiar face AJ Applegate (no relation but an apparent resemblance to Christiana does explain use of that as a stage name). And, back to the daughter, with her black boyfriend.
A note here -- the films on late night tend to favor white people though there is sprinkled among the films many an ethnicity. Erotic Obsession involves a Middle Eastern actress. The Head and Breakfast film I referenced includes a scene with a black wife. One film involving various people in theory has a black therapist. One take off on Law and Order (Law and Orgasm, with a surprise ending and some verve) has a black woman playing a police officer. But, usually white. So, black guy is notable.
Did not watch this film straight through though saw the first twenty-five or so minutes and skipped around some to see the rest. I appreciate some of these movies take the time to craft extended sex scenes but likewise admit to being bored of them at some point. Again, showing some style doesn't mean these films are that good. American mainstream films have a lot of sex in them, but that too is a depressing part of things. The Notebook here was nice in that you had a lead woman who was shown to enjoy sex, to be emboldened by it (she was like "damn that I waited so long to do this!"). Exceptions exist.
Following some links from the AJ Applegate Wikipedia page, we get a full listing of her films, including the type of sex she performs in them. In this case, we get this code: " Facial CumSwap IR." It turns out that "IR" means interracial. Sure. "Facial" is a common term -- ejaculation on the face. The other term is defined thusly: "Guy cums in her mouth, she spits it out into someone else's mouth. If the performer is part of the swap, they'll have the tag, be they male or female." On the other hand, don't think much of that is actually shown in the Showtime cut.
It often doesn't occur in these films, but the camera angles makes it hard also to tell if there is penetration. A few shots in films make it hard to imagine it does not though you never actually see cocks in these films generally speaking. It is a bit shocking, in fact, that you actually see a bit of cum in the mouth of a woman in the Lust on the Line version shown. Over the years, actually seeing penis on late night soft porn [it really is not much different in non-porn] is surprising. You get all of the women (less of the pubic area; but it pops up regularly) and at times see ass of the men.
This doesn't mean the stuff isn't available, obviously, and you can see it on Porntube and other websites. Plus, if you pay for your porn via video on demand, there is a lot of more explicit films available on your cable box. Also, at least once, I found online more explicit cuts of films where actual penetration occurs. The code for AJ Applegate suggests this film also has cuts that are more explicit. There is no "facials" from what I can tell on Showtime and other similar movie channels. The fact that a lead character in the old series Life on Top had to dispose of a condom and shower after sex in the first episode is rather notable.
I don't quite know the lines for "soft porn" here but personally wouldn't mind now and then seeing a bit of penis, if only to add a bit of realism. Film is generally a matter of suspending belief, but it is a matter of degree. You can note to show degree that you cannot just have sex and just put your clothes back on without being sweaty etc. sometimes. Some reference to cum -- we are talking sex here -- would seem appropriate. I have not seen so many of these films that I can make a full index, but it gets a bit silly how rare such thing even is suggested.
We need a good erotic drama though that did pops up in various shows such as one that covered the 1970s porn scene or some such thing. Even the "Good Witch" on Hallmark back in the day guest starred in such a show. Good erotica and porn is appreciated.
The subject film is one of the lesser films (aka Adventures with the Bumgartners, which to those familiar with title shows it is a sequel of a popular film) though it decent enough -- it doesn't look as cheap like some of the films shown, which are more about showing women with fake looking breasts apparently. A favorite of mine is Lust on the Line, which is a collection of extended vignettes pattered around a sex host on the radio, ending with well crafted scene involving the host herself. I do not claim reality here, but we are talking extended scenes that show some class.
The one here is a bit garbled -- there is about a five minute introduction in a kitchen (after opening credits involving a couple kissing or something in an artsy sort of framing) that appears to be geared toward those familiar with the first film. "Mrs. B." is a clear flag there. We also get some sense one person is supposed to be the daughter though the age difference doesn't seem that much different. Anyway, we soon have a somewhat quick lesbian scene involving the mom and some other character who I'm not clear about. Then, the babysitter from the first movie has a scene with her girlfriend, played by familiar face AJ Applegate (no relation but an apparent resemblance to Christiana does explain use of that as a stage name). And, back to the daughter, with her black boyfriend.
A note here -- the films on late night tend to favor white people though there is sprinkled among the films many an ethnicity. Erotic Obsession involves a Middle Eastern actress. The Head and Breakfast film I referenced includes a scene with a black wife. One film involving various people in theory has a black therapist. One take off on Law and Order (Law and Orgasm, with a surprise ending and some verve) has a black woman playing a police officer. But, usually white. So, black guy is notable.
Did not watch this film straight through though saw the first twenty-five or so minutes and skipped around some to see the rest. I appreciate some of these movies take the time to craft extended sex scenes but likewise admit to being bored of them at some point. Again, showing some style doesn't mean these films are that good. American mainstream films have a lot of sex in them, but that too is a depressing part of things. The Notebook here was nice in that you had a lead woman who was shown to enjoy sex, to be emboldened by it (she was like "damn that I waited so long to do this!"). Exceptions exist.
Following some links from the AJ Applegate Wikipedia page, we get a full listing of her films, including the type of sex she performs in them. In this case, we get this code: " Facial CumSwap IR." It turns out that "IR" means interracial. Sure. "Facial" is a common term -- ejaculation on the face. The other term is defined thusly: "Guy cums in her mouth, she spits it out into someone else's mouth. If the performer is part of the swap, they'll have the tag, be they male or female." On the other hand, don't think much of that is actually shown in the Showtime cut.
It often doesn't occur in these films, but the camera angles makes it hard also to tell if there is penetration. A few shots in films make it hard to imagine it does not though you never actually see cocks in these films generally speaking. It is a bit shocking, in fact, that you actually see a bit of cum in the mouth of a woman in the Lust on the Line version shown. Over the years, actually seeing penis on late night soft porn [it really is not much different in non-porn] is surprising. You get all of the women (less of the pubic area; but it pops up regularly) and at times see ass of the men.
This doesn't mean the stuff isn't available, obviously, and you can see it on Porntube and other websites. Plus, if you pay for your porn via video on demand, there is a lot of more explicit films available on your cable box. Also, at least once, I found online more explicit cuts of films where actual penetration occurs. The code for AJ Applegate suggests this film also has cuts that are more explicit. There is no "facials" from what I can tell on Showtime and other similar movie channels. The fact that a lead character in the old series Life on Top had to dispose of a condom and shower after sex in the first episode is rather notable.
I don't quite know the lines for "soft porn" here but personally wouldn't mind now and then seeing a bit of penis, if only to add a bit of realism. Film is generally a matter of suspending belief, but it is a matter of degree. You can note to show degree that you cannot just have sex and just put your clothes back on without being sweaty etc. sometimes. Some reference to cum -- we are talking sex here -- would seem appropriate. I have not seen so many of these films that I can make a full index, but it gets a bit silly how rare such thing even is suggested.
We need a good erotic drama though that did pops up in various shows such as one that covered the 1970s porn scene or some such thing. Even the "Good Witch" on Hallmark back in the day guest starred in such a show. Good erotica and porn is appreciated.
Monday, May 20, 2019
Tribal Case of Some Interest
ETA: The other two cases might also be of interest, especially if you care about the area in question. For instance, the SCOTUSBlog opinion summary suggests the bankruptcy decision will have important staying power. At the very least, it suggests the importance of the Supreme Court being there to settle federal questions of law. Also, it suggests Gorsuch's sole dissent concerned with how there really wasn't an active federal question is dubious -- that often turns out to be a debatable choice, the ultimate issue at that level being to settle law beyond a single case.
I noted that it was not a big drama day at SCOTUS, but this doesn't mean it lacked some interest.
The tribal treaty ruling involving hunting rights off reservation (here involving hunting elk by residents of a tribe in Montana that followed them into Bighorn National Forest in Wyoming) upon closer reading has some. This includes, as noted before, Justice Gorsuch again joining the liberals (here united in one opinion) supporting tribal rights by applying the treaty as "would naturally be understood by the Indians." Justice Gorsuch in his earlier opinion citing the majority opinion in an earlier opinion that was key to the opinion today turned out to be suggestive.
The earlier opinion (Justice O'Connor writing the opinion, the liberals joining her in a 5-4 split) distinguished but did not quite explicitly overrule a late 19th Century case. The fact it basically did was an important matter today, since it was held to decide an "issue preclusion" argument that was the basis of today's dissent. Basically, a lower court wrongly followed what it deemed existing precedent. "To avoid any future confusion, we make clear today that Race Horse is repudiated to the extent it held that treaty rights can be impliedly extinguished at statehood."
This was a key matter involved in Wyoming's argument, but the Court held that there was no "clear statement" that the treaty was abrogated on that or some other ground. Along with the "naturally be understood" rule, taking into consideration how the tribes understood things at the time, not some nuanced legal rule as might be applied by current understanding, this helps protect tribes who would often be in a weaker position. Gorsuch joining the liberals twice suggests this very well might be a trend.
The old precedent was concerned about state rights, specifically (sounds familiar) the fact that a state joins with "equal footing" of existing states. This was a concern in Shelby County v. Holder, that the covered states were being singled out without up to date justification. Here, we are told that "Although States have important interests in regulating wildlife and natural resources within their borders, this authority is shared with the Federal Government when the Federal Government exercises one of its enumerated constitutional powers, such as treaty making."
Thus, the Federal Government has specific powers that might somehow limit state discretion. Again, sounds a bit familiar. Anyways, both sovereigns have a role -- states have discretion over voting and here they have discretion to pass neutral "reasonable and necessary" conservation measures. In fact, the application of that rule to this very case was not decided. So, the person still can lose in the end. Nonetheless, for purposes of this case, a national forest isn't what "occupied" naturally would be understood. That term meant lack of settlements, like farms.
Again, maybe the specific area in question was "occupied." This too was not decided. The case therefore may be more important for broader principles and a signal to the future than the specific concerns of the members of the Crow Tribe (twelve thousand enrolled) here. Included here is stare decisis concerns, including handling decisions that at least in some fashion are a shell of themselves. A matter of some topical concern.
The importance of this case will be a test of time, but though the dissent in particular tried to rest things on limited grounds (an avoidance mechanism; feeling issue preclusion made the treaty interpretation moot), it appears to be of some interest.
I noted that it was not a big drama day at SCOTUS, but this doesn't mean it lacked some interest.
The tribal treaty ruling involving hunting rights off reservation (here involving hunting elk by residents of a tribe in Montana that followed them into Bighorn National Forest in Wyoming) upon closer reading has some. This includes, as noted before, Justice Gorsuch again joining the liberals (here united in one opinion) supporting tribal rights by applying the treaty as "would naturally be understood by the Indians." Justice Gorsuch in his earlier opinion citing the majority opinion in an earlier opinion that was key to the opinion today turned out to be suggestive.
The earlier opinion (Justice O'Connor writing the opinion, the liberals joining her in a 5-4 split) distinguished but did not quite explicitly overrule a late 19th Century case. The fact it basically did was an important matter today, since it was held to decide an "issue preclusion" argument that was the basis of today's dissent. Basically, a lower court wrongly followed what it deemed existing precedent. "To avoid any future confusion, we make clear today that Race Horse is repudiated to the extent it held that treaty rights can be impliedly extinguished at statehood."
This was a key matter involved in Wyoming's argument, but the Court held that there was no "clear statement" that the treaty was abrogated on that or some other ground. Along with the "naturally be understood" rule, taking into consideration how the tribes understood things at the time, not some nuanced legal rule as might be applied by current understanding, this helps protect tribes who would often be in a weaker position. Gorsuch joining the liberals twice suggests this very well might be a trend.
The old precedent was concerned about state rights, specifically (sounds familiar) the fact that a state joins with "equal footing" of existing states. This was a concern in Shelby County v. Holder, that the covered states were being singled out without up to date justification. Here, we are told that "Although States have important interests in regulating wildlife and natural resources within their borders, this authority is shared with the Federal Government when the Federal Government exercises one of its enumerated constitutional powers, such as treaty making."
Thus, the Federal Government has specific powers that might somehow limit state discretion. Again, sounds a bit familiar. Anyways, both sovereigns have a role -- states have discretion over voting and here they have discretion to pass neutral "reasonable and necessary" conservation measures. In fact, the application of that rule to this very case was not decided. So, the person still can lose in the end. Nonetheless, for purposes of this case, a national forest isn't what "occupied" naturally would be understood. That term meant lack of settlements, like farms.
Again, maybe the specific area in question was "occupied." This too was not decided. The case therefore may be more important for broader principles and a signal to the future than the specific concerns of the members of the Crow Tribe (twelve thousand enrolled) here. Included here is stare decisis concerns, including handling decisions that at least in some fashion are a shell of themselves. A matter of some topical concern.
The importance of this case will be a test of time, but though the dissent in particular tried to rest things on limited grounds (an avoidance mechanism; feeling issue preclusion made the treaty interpretation moot), it appears to be of some interest.
SCOTUS: Low Drama/Trump Guys Split Along Edges Again
Low drama order day with a grant and disagreements from Thomas (joined without opinion by RBG and by Alito) in two instances. One liberal each (minus RBG) wrote the opinions with Gorsuch joining them again on tribal rights (here with more federalism concerns) while also going it alone on one (wanted to DIG) and didn't (unlike Kavanaugh and Roberts; Thomas concurred separately as well) go along with a fairly dismissive concurrence by Alito in a pre-emption/agency case, a potentially divisive area. Execution later in week.
ETA: The federal torts rule Thomas/RBG wanted to examine appears wrong-minded, but as a long-held statutory ruling, it probably should be up to Congress to change things. Note it was a unanimous ruling at the start, about seventy years ago.
Girl in Black and White
I first learned about this interesting book about a girl whose photograph (and presence) was used as an anti-slavery symbol as well as various interrelated stories (including her legal owner being the result -- unclear how exactly -- of a white teenage girl and an older slave) via CSPAN. The author promised to give twenty-five percent of the profits as a form of reparations.
Thursday, May 16, 2019
Death Penalty Watch
As summarized here, it seems like the conservative justices are still a tad bitter about recent death penalty actions.
The separate opinions are conveniently separated on the "opinions related to orders" page, which brought a bit of a surprise on Monday -- Justice Alito (with Thomas and Gorsuch joined; they dissented without opinion before) added a dissenting opinion to Patrick Murphy's case, which was handed down a month and a half ago. I am not aware of this happening before though new knowledge on a certain fact led to an addendum to Kennedy v. Louisiana years back. But, it's good to have everyone on record now, assuming that the liberals basically implicitly held to their previous position in the earlier case involving a Muslim prisoner.
Kavanaugh (with Roberts this time) again added a concurrence, laying on the "respectful disagreement" language. If you toss in the Thomas reply (same breakdown, this time with no comment from Kavanaugh) to Breyer's dissent in the Price case (back to the Supreme Court after some late night drama last time, so found with the original Monday orders), one can understand his felt need to do so. That dissent was a tad angry, starting with the gratuitous (a method of execution case, it simply was not relevant) citation of the facts of the crime. Breyer and Thomas is repeatedly all buddy-buddy during oral argument, but you know, there is some bad blood there. The delays of executions clearly upset the conservatives.
I'm not fully able to parse the difference between the two cases involving wanting a minister other than designated Christian minister available, but am inclined to agree with Kagan and the liberals that the difference didn't deserve different results (one is dead; the other's execution is still pending). Somewhat ironically, Alito (who has shown some consistency here, to be fair) went into more detail in examining the religious claims, leaving open a chance that there might be a statutory free exercise (RFRA) argument in the appropriate case. Kavanaugh assumed a state had a strong enough interest to protect the execution room so could (equally) require any minister to just stay in the observation room. Since states regularly allow ministers to be there when the person dies, I find this questionable.
===
Two executions were scheduled for May 16th. Going by how these things go, it was therefore somewhat surprising (maybe they are learning?) that (without recorded dissent) the Supreme Court disposed of Michael Samara's appeals (habeas and stay for execution tied to that) two days before. The claim raised was that current standards of decency, as result of practice and scientific knowledge, warrants the floor be raised from 18 (his co-defendant was sixteen at the time, so had his own death sentence overturned) until 21. There is some grounds for this. But, obviously, THIS Supreme Court is not likely to be that open to it.
Samara was 19 at the time of the crimes back in 1997. The crimes involved, by gun and knife (ran out of bullets) murdering four people, two children, by one account: "According to statements made by co-defendants, Duke instigated the bloodbath because he was angry at his father for refusing to let him borrow a pickup truck." This being in Alabama. The defendants' own brief spelled this out, perhaps to show how reckless and immature the whole thing was. Duke being the sixteen year old. The deterrent effect of this rather unclear, we are left with retribution.
I assume the family and personal dynamics might be a bit more complicated than being mad at the father for not letting them borrow a truck. The retribution value of executing a few heinous murderers, even beyond the fact that the teenagers here weren't torturing strangers for sport or anything, still alludes me. We have a general problem with dealing with violent crime the wrong way in this country. But, executing a few people among the unfortunately numerous horrible cases of violence that more often than not tends to have such a personal connection has a certain symbolic uniqueness to it.
[Some suggested there was inconsistency with the state passing a strong anti-abortion law while at the same time executing someone. Tad simplistic, especially when noting the law provides a few minimal exceptions while this execution involved someone who helped murder four people. We aren't all Jainists here. There are possible differences here without people being total "pro-life" hypocrites. Even the Catholic Church thinks there are some cases where taking life might be valid.]
Donnie Edward Johnson (Tennessee) is the other case. It's one of the more blatant long outstanding cases, the murder being carried out in 1984. Furthermore, there is a claim that life imprisonment (at least long term confinement) had rehabilitation effects. In fact, the daughter of the victim (he murdered his wife) now is asking for a reprieve. Like a New York case from years back, however, her sibling (and his own son) disagrees. Anyways, the governor who ran focusing on his Christian faith said "nope." And, yes, if another person of a different faith had a similar redemption story, we should consistently support not executing the person. Likewise, there is a good chance that in some cases a Muslim inmate might be treated differently. Such discriminatory sentiment is a separate concern. [Both were carried out apparently without a hitch.]
There is one execution scheduled each the next two Thursdays.
===
Meanwhile, in the face of years of sketchy drugs from overseas sources, the Justice Department put forth an OLC opinion arguing that the FDA does not have jurisdiction over execution drugs. The conservative "the death penalty is constitutional so we need to give states more discretion to allow them to carry it out" argument was raised. Power over drugs for euthanasia (including for animals) left open. This clashed with FDA judgment and of course Obama Administration policy. The FDA for one thing refused to assume denying states from obtaining unauthorized drugs from overseas would block capital punishment. They could obtain drugs some other way.
Plus, to toss it in, there are other means to execute including nitrogen gas and the firing squad. The regulation of euthanasia drugs suggests that just because a drug is used to kill someone doesn't mean the Food and DRUG Administration has no power over it. It is not a drug used for personal use that might fall under the DEA. Executions involve a barbiturate, paralyzing agent and something to stop the heart. If the drugs do not work, the execution might be botched, including causing severe pain. It is the sort of thing the FDA is there to regulate.
Anyway, there is an injunction in place now, so it is unclear where this will lead. But, the goal is help the states out obviously.
The separate opinions are conveniently separated on the "opinions related to orders" page, which brought a bit of a surprise on Monday -- Justice Alito (with Thomas and Gorsuch joined; they dissented without opinion before) added a dissenting opinion to Patrick Murphy's case, which was handed down a month and a half ago. I am not aware of this happening before though new knowledge on a certain fact led to an addendum to Kennedy v. Louisiana years back. But, it's good to have everyone on record now, assuming that the liberals basically implicitly held to their previous position in the earlier case involving a Muslim prisoner.
Kavanaugh (with Roberts this time) again added a concurrence, laying on the "respectful disagreement" language. If you toss in the Thomas reply (same breakdown, this time with no comment from Kavanaugh) to Breyer's dissent in the Price case (back to the Supreme Court after some late night drama last time, so found with the original Monday orders), one can understand his felt need to do so. That dissent was a tad angry, starting with the gratuitous (a method of execution case, it simply was not relevant) citation of the facts of the crime. Breyer and Thomas is repeatedly all buddy-buddy during oral argument, but you know, there is some bad blood there. The delays of executions clearly upset the conservatives.
I'm not fully able to parse the difference between the two cases involving wanting a minister other than designated Christian minister available, but am inclined to agree with Kagan and the liberals that the difference didn't deserve different results (one is dead; the other's execution is still pending). Somewhat ironically, Alito (who has shown some consistency here, to be fair) went into more detail in examining the religious claims, leaving open a chance that there might be a statutory free exercise (RFRA) argument in the appropriate case. Kavanaugh assumed a state had a strong enough interest to protect the execution room so could (equally) require any minister to just stay in the observation room. Since states regularly allow ministers to be there when the person dies, I find this questionable.
The circumstances surrounding Zagorski and his fellow prisoners’ attempts to prove that pentobarbital was “available” demonstrate how unfairly this already per-verse requirement is being applied. For one, the prisoners’ ability to prove the drug’s availability was severely constrained by rules of secrecy surrounding individuals involved in the execution process.The other brief statement was from Sotomayor (she references an early opinion from which that quote is taken) on her continuing concern about how lethal injections have been carried out. She also added how state secrecy laws wrongly inhibit inmates (First Amendment claims have been made here as well) from obtaining necessary information. The defendant here, checking the docket page, had a conservative group against the death penalty submit a brief flagging due process problems.
===
Two executions were scheduled for May 16th. Going by how these things go, it was therefore somewhat surprising (maybe they are learning?) that (without recorded dissent) the Supreme Court disposed of Michael Samara's appeals (habeas and stay for execution tied to that) two days before. The claim raised was that current standards of decency, as result of practice and scientific knowledge, warrants the floor be raised from 18 (his co-defendant was sixteen at the time, so had his own death sentence overturned) until 21. There is some grounds for this. But, obviously, THIS Supreme Court is not likely to be that open to it.
Samara was 19 at the time of the crimes back in 1997. The crimes involved, by gun and knife (ran out of bullets) murdering four people, two children, by one account: "According to statements made by co-defendants, Duke instigated the bloodbath because he was angry at his father for refusing to let him borrow a pickup truck." This being in Alabama. The defendants' own brief spelled this out, perhaps to show how reckless and immature the whole thing was. Duke being the sixteen year old. The deterrent effect of this rather unclear, we are left with retribution.
I assume the family and personal dynamics might be a bit more complicated than being mad at the father for not letting them borrow a truck. The retribution value of executing a few heinous murderers, even beyond the fact that the teenagers here weren't torturing strangers for sport or anything, still alludes me. We have a general problem with dealing with violent crime the wrong way in this country. But, executing a few people among the unfortunately numerous horrible cases of violence that more often than not tends to have such a personal connection has a certain symbolic uniqueness to it.
[Some suggested there was inconsistency with the state passing a strong anti-abortion law while at the same time executing someone. Tad simplistic, especially when noting the law provides a few minimal exceptions while this execution involved someone who helped murder four people. We aren't all Jainists here. There are possible differences here without people being total "pro-life" hypocrites. Even the Catholic Church thinks there are some cases where taking life might be valid.]
Donnie Edward Johnson (Tennessee) is the other case. It's one of the more blatant long outstanding cases, the murder being carried out in 1984. Furthermore, there is a claim that life imprisonment (at least long term confinement) had rehabilitation effects. In fact, the daughter of the victim (he murdered his wife) now is asking for a reprieve. Like a New York case from years back, however, her sibling (and his own son) disagrees. Anyways, the governor who ran focusing on his Christian faith said "nope." And, yes, if another person of a different faith had a similar redemption story, we should consistently support not executing the person. Likewise, there is a good chance that in some cases a Muslim inmate might be treated differently. Such discriminatory sentiment is a separate concern. [Both were carried out apparently without a hitch.]
There is one execution scheduled each the next two Thursdays.
===
Meanwhile, in the face of years of sketchy drugs from overseas sources, the Justice Department put forth an OLC opinion arguing that the FDA does not have jurisdiction over execution drugs. The conservative "the death penalty is constitutional so we need to give states more discretion to allow them to carry it out" argument was raised. Power over drugs for euthanasia (including for animals) left open. This clashed with FDA judgment and of course Obama Administration policy. The FDA for one thing refused to assume denying states from obtaining unauthorized drugs from overseas would block capital punishment. They could obtain drugs some other way.
Plus, to toss it in, there are other means to execute including nitrogen gas and the firing squad. The regulation of euthanasia drugs suggests that just because a drug is used to kill someone doesn't mean the Food and DRUG Administration has no power over it. It is not a drug used for personal use that might fall under the DEA. Executions involve a barbiturate, paralyzing agent and something to stop the heart. If the drugs do not work, the execution might be botched, including causing severe pain. It is the sort of thing the FDA is there to regulate.
Anyway, there is an injunction in place now, so it is unclear where this will lead. But, the goal is help the states out obviously.
Two Books
After Rachel Held Evans' death, I started to read some of her stuff, and just read her book on the Bible (Inspired). Appreciate a religious publisher released this liberal-minded take. On a quite different subject, if with a similar progressive mind-set, The End of Obscenity is a 1960s book (brief 1980s introduction somewhat curiously suggests little change in the law since then) concerning the author's work in defending three books. The title isn't quite accurate but the journey is well worth it. Found it via a book on the Warren Court.
Monday, May 13, 2019
SCOTUS Watch: Kavanaugh Has His Day
And Also: Extended episode/series finale of Veep had Selina go full "anything goes" to win. Eh. Parts were good (Kent and Amy being appalled at the idea of Jonah being VP was a highlight), but overall, damn the first five seasons were so much better. Compare this with some of the episodes in the fifth season run for President. Nice to see Sue.
[SCOTUS later separately released an order spelling out a schedule for briefs in the GLBT discrimination cases. Amy Howe of SCOTUSBlog told me per a question on Twitter that "it's just about the timing of the briefs, presumably so that the
parties with the same positions wind up filing their briefs at the same
time (even if they are petitioners in some cases and respondents in
others)." I thought it a bit curious they singled it out.]
Some drama in the orders (I will wait to address the death penalty matters until later in the week when two executions are due to occur) and opinions. Kavanaugh playing a key role.
There does not appear to have been any major developments regarding grants, a few hot button cases involving abortion and immigration still pending. Roberts with the conservatives, minus Gorsuch, dissents from a "GVR" that the solicitor general requested in an Armed Career Criminal Act (a repeat replayer in recent terms). This is one of various cases where Kavanaugh and Gorsuch split on details. See also, another dissent from denial by Alito (with Thomas and Kavanaugh) wishing to take a First Amendment case involving a nasty complaint by a prisoner. I will skip the death penalty orders, but briefly, Kavanaugh (with Roberts) either stays out of the nastiness or dissents from it.
Kavanaugh provided the fifth vote with the liberals (now the only one who has not done that among the conservatives is Alito) to allow an anti-trust lawsuit against Apple to go forward. Gorusch led the dissenters. The case is of some significance but the specific opinion is of moderate note. It's a reminder that the justices aren't always going to be 5-4 in typical directions. The law, especially statutory interpretation, is not that clear-cut. Still, there are general trends, especially on hot button issues, and people are not just imagining an ideological partisan split here.
Thomas wrote two opinions, one a typical one for him -- a rather boring false claims statutory dispute (with no separate opinion). The other is basically the big case of the day if one with apparent limited reach. Concern here is that it overturned a forty year old precedent (written by Stevens but joined by Powell, suggesting it wasn't really a threat to states rights) involving an ideological issue -- state immunity. Breyer via a crisp dissent wrote for the liberals in a way that some see in effect as a subtweet about Roe:
And, even if the matter is open to dispute, not enough to overturn forty years of precedent. This is not a matter of states not having some constitutional securities or there being no "spirit" of the Constitution here among its bare text on the matter. OTOH, it would be nice if supporters if the result did not sneer at "penumbras and emanations" in other cases. As Breyer notes, it is that as applied in this case, states should have discretion. Precedents are not sacrosanct. But, no good grounds exist here.
I would add that such separation of powers and federalism questions should be given more room to be decided as political questions than if some sole individual's right is at issue. Political institutions have more power to defend themselves and the overall structure set forth provides a means to check and balance. See, e..g, Footnote Four. If the Constitution expressly requires something here, or it is strongly sound to think so (e.g., perhaps decisions regarding placement of state capitols, to take an old case), fine. Also, though the precedents to me rest on sand, long practice suggests we are stuck with a breadth of state immunity law. This, however, was not required to be tossed in. Again, if anything, it can be said to hurt state sovereignty as much as aid.
Planned Parenthood v. Casey is cited by Breyer, which some basically cite as a red flag. Irin Carmon on Twitter said in effect that he is telling us to be more concerned about the U.S. Senate (reference to new justices having new views). Casey also (via Souter) had a strong section on the importance of stare decisis, the explicit reason for the citation here, though the justices there did not think that blocked tweaking the rules some. Again, the law does change here, in part by changing judicial personnel. McConnell et. al. surely knew/know that. Oh how they do.
ETA: The SCOTUSBlog summary sort of tones down the drama some. It does note the Thomas lax approach to overturning a long held precedent seems like something Kavanaugh (who has spoken separately repeatedly so far to state his views) or Roberts might be concerned about.
There is a certain foregone conclusion to the ruling given recent federalism trends though people have also noted this specific somewhat atypical -- the commentary notes the very fact this is a "three-peat" is because so few cases tee up the issues -- practice can fit comfortably into the greater whole (as noted here as well). The commentary does suggest the immediate stakes seem low though intelligent court watchers do seem to think there is a possible foreshadowing nature to the whole thing.
Finally, the commentary underlines that on federalism issues, the conservatives are not strict textualists. This has led to some sarcasm but at this point taking literally some of their rhetoric is silly. In practice, their actions put forth a more complicated wider whole. It is true that at times it would be appreciated if they tone down the rhetoric and respect the wider whole of their opposite numbers equally well.
Some drama in the orders (I will wait to address the death penalty matters until later in the week when two executions are due to occur) and opinions. Kavanaugh playing a key role.
There does not appear to have been any major developments regarding grants, a few hot button cases involving abortion and immigration still pending. Roberts with the conservatives, minus Gorsuch, dissents from a "GVR" that the solicitor general requested in an Armed Career Criminal Act (a repeat replayer in recent terms). This is one of various cases where Kavanaugh and Gorsuch split on details. See also, another dissent from denial by Alito (with Thomas and Kavanaugh) wishing to take a First Amendment case involving a nasty complaint by a prisoner. I will skip the death penalty orders, but briefly, Kavanaugh (with Roberts) either stays out of the nastiness or dissents from it.
Kavanaugh provided the fifth vote with the liberals (now the only one who has not done that among the conservatives is Alito) to allow an anti-trust lawsuit against Apple to go forward. Gorusch led the dissenters. The case is of some significance but the specific opinion is of moderate note. It's a reminder that the justices aren't always going to be 5-4 in typical directions. The law, especially statutory interpretation, is not that clear-cut. Still, there are general trends, especially on hot button issues, and people are not just imagining an ideological partisan split here.
Thomas wrote two opinions, one a typical one for him -- a rather boring false claims statutory dispute (with no separate opinion). The other is basically the big case of the day if one with apparent limited reach. Concern here is that it overturned a forty year old precedent (written by Stevens but joined by Powell, suggesting it wasn't really a threat to states rights) involving an ideological issue -- state immunity. Breyer via a crisp dissent wrote for the liberals in a way that some see in effect as a subtweet about Roe:
Can a private citizen sue one State in the courts of another? Normally the answer to this question is no, because the State where the suit is brought will choose to grant its sister States immunity. But the question here is whether the Federal Constitution requires each State to grant its sister States immunity, or whether the Constitution instead permits a State to grant or deny its sister States immunity as it choose.Breyer, as has been the rule when the liberals (especially Stevens, Souter and Breyer) wrote in these federalism cases (repeatedly in dissent), makes a strong case even on the majority's own ground. Stevens in the case forty years ago had history on his side regarding not declaring it unconstitutional for a state to allow another state to be sued without its consent in their own courts. That is, a state should be able to -- as a matter of control of their own courts (thus federalism works both ways here) -- be able to treat another state like another litigant here.
And, even if the matter is open to dispute, not enough to overturn forty years of precedent. This is not a matter of states not having some constitutional securities or there being no "spirit" of the Constitution here among its bare text on the matter. OTOH, it would be nice if supporters if the result did not sneer at "penumbras and emanations" in other cases. As Breyer notes, it is that as applied in this case, states should have discretion. Precedents are not sacrosanct. But, no good grounds exist here.
I would add that such separation of powers and federalism questions should be given more room to be decided as political questions than if some sole individual's right is at issue. Political institutions have more power to defend themselves and the overall structure set forth provides a means to check and balance. See, e..g, Footnote Four. If the Constitution expressly requires something here, or it is strongly sound to think so (e.g., perhaps decisions regarding placement of state capitols, to take an old case), fine. Also, though the precedents to me rest on sand, long practice suggests we are stuck with a breadth of state immunity law. This, however, was not required to be tossed in. Again, if anything, it can be said to hurt state sovereignty as much as aid.
Planned Parenthood v. Casey is cited by Breyer, which some basically cite as a red flag. Irin Carmon on Twitter said in effect that he is telling us to be more concerned about the U.S. Senate (reference to new justices having new views). Casey also (via Souter) had a strong section on the importance of stare decisis, the explicit reason for the citation here, though the justices there did not think that blocked tweaking the rules some. Again, the law does change here, in part by changing judicial personnel. McConnell et. al. surely knew/know that. Oh how they do.
ETA: The SCOTUSBlog summary sort of tones down the drama some. It does note the Thomas lax approach to overturning a long held precedent seems like something Kavanaugh (who has spoken separately repeatedly so far to state his views) or Roberts might be concerned about.
There is a certain foregone conclusion to the ruling given recent federalism trends though people have also noted this specific somewhat atypical -- the commentary notes the very fact this is a "three-peat" is because so few cases tee up the issues -- practice can fit comfortably into the greater whole (as noted here as well). The commentary does suggest the immediate stakes seem low though intelligent court watchers do seem to think there is a possible foreshadowing nature to the whole thing.
Finally, the commentary underlines that on federalism issues, the conservatives are not strict textualists. This has led to some sarcasm but at this point taking literally some of their rhetoric is silly. In practice, their actions put forth a more complicated wider whole. It is true that at times it would be appreciated if they tone down the rhetoric and respect the wider whole of their opposite numbers equally well.
Saturday, May 11, 2019
2020 and Beyond: The Breadth of the Problem
It is best to remember that what you want is not the same as what you need. So, my desire for a woman president should be considered in an honest way. I still think that the field suggests the best options are women. This is something of a closer question as you go down the list, to be clear (unfortunately, Kirsten Gillibrand has lost some luster here), but do think Warren and Harris remain the best options.
People have argued that dissidents should be honest about Biden's appeal. I'm willing to see some of that, but the problems have not disappeared. Recent polling does suggest (I will reference what I saw without links here) that Bernie Sanders is in trouble though. He still has second place, but a sort of distant second (one poll had Biden at around 35% and Sanders at 18%), providing hope that Biden (including for the anti-left) and Warren (for the left, at least those not sexist) is getting his support. If it was just Biden and Sanders, I still would be appalled enough to feel like not voting, but admit Biden is somewhat better as a whole on some level. Prudentially at the very least. Policy-wise, Sanders might be better if not practicably. To me, he remains a gadfly figure.
A basic problem with Biden for me is that he is sort of the "status quo ante" candidate, when we need to address bigger game. At some point, this has to be done, and 2020 is good of a time then ever. After all, we are facing Trump, not some generally bad candidate, who has some positives. As some have noted,* the problem is not just Trump. It is in effect Trumpism and to me Biden's focus on Trump here is in a way rather troublesome. the fact that Biden has some support here is duly noted. Temptation to avoid bigger problems is a common occurrence. But, the problems fester. More so if the "solution" denies part of the problem.
And, I will repeat, Biden has issues that make him problematic as a whole. First, he is going to be an issue for some in the Democratic Party as a whole, which the opponents will surely use. The response partially is that we cannot let them! Charming but a primary process is there to find the best candidate. This includes actually finding something wrong with the options you do not choose. If Biden has issues, including from some women (gaslighting them by denying there isn't any ... so helpful), they deserve to come out. This includes finding a "middle way" on let's say global warming. It is realistic to compromise, but at some point, compromising leads to weak positions. This isn't 2008 here.
One sentiment is that Biden (or Sanders) will appeal to Trump voters to some extent or at least the Trump curious. Some other candidates make such an appeal, including the two longshot female senators, who cite winning such voters in Minnesota and New York. I myself am somewhat intrigued as to the former as a sort of compromise candidate for that very reason though don't know how useful it would be in the long run. The old white dudes (yes, I say this with some scorn) are more blatant about it, at least in a dog whistle sort of way (McCain's family has expressed their admiration for Biden; a sort of Never Trump vote). This has a sort of tail leading the dog quality. At some point, we need to get past that.
An op-ed also addressed the problem of the Senate. It basically warns us that the Democrats have little chance in winning in 2020. I do not want to concede that -- admittedly, this is from someone who didn't want to concede 2018, which basically went as best as one could hope given the bad hand dealt. Still, there is still reason to credibly think the Democrats can eke out a victory at least in 2020. It would be better if more attention -- as things go, it is getting late -- was given to key races. There should be a clear understanding that, let's say all those Warren plans, Senate control is essential if we are to do more than simply get rid of Trump.
One intriguing thought is a proposal to give Native Americans representation in the Senate. Looking it up, population-wise, they very well would deserve it comparably. The idea of senators for both Atlantic and Pacific territories (two each) is also interesting though the population numbers work better (even on a "but Wyoming" level) as to the former. I have expressed my discomfort to giving D.C. two senators both on a population level and given it is more city, than state, but realistically, that too is worth serious thought given the system in place.
I also think the Laurence Tribe "at large" senators option is intriguing. The House of Lords was originally a matter of lords with certain territorial possessions, generally speaking, I suppose. But, in time, lords was added for a variety of reasons, in part to water down the original lords' power without needing to completely do away with the institution. At large senators would require a constitutional amendment, probably, but it doesn't seem to run into the special barrier to denying equal representation.
Dealing with things involve a range of governmental and non-governmental matters of diverse breadth. See, e.g., my recent comments on the progressive Christian writer that died recently. We saw this in the area of both guns and gays really -- change in the courts there was tied to change in society and local government. But, big picture governmental issues also are important to face up too and the Senate is one. It might seem like an impossible task. Did not other major changes over our history? Moving past the 27th Amendment joker, I don't think constitutional change suddenly ended around the time I was born.
The same applies to other matters -- impeachment of a president, two electoral over popular vote victories and (on the horror scale) destruction of the World Trade Centers all happened after 1990. Who would have thought most of these things (though a major terrorist attack probably is most believable, especially after the first bombing ... still after 1990) would have occurred even a few years earlier? Other than as thought experiments?
Trump in power is horrible. It is not possible. It is actuality. Let's think big in another way as well. The level of different, yeah yeah, but on some level a President Biden appalls me too. We need to think bigger. This includes the first woman president!
---
* The piece references a conclusion that Elizabeth Warren is the candidate who is seriously addressing the full breadth of the problem at hand. The blog used to have at least two contributors, to the degree they had a leaning, lean toward Gillibrand. Now, the sentiment is more Warren, even from a guy who sneered at the actual differences given other concerns.
Granting the force of the argument, I do lean toward Kamala Harris. She has recognized the problems at hand, including supporting starting impeachment proceedings, while providing something of a more moderate approach. This is my bow to pragmatics. She also has personal appeal, both charm and toughness (see questioning of Barr). She stands strong with Warren here.
A poll that put Biden in the lead by a significant degree (though only in the mid-30s among the field) put both Warren and Harris (a bit behind) as strong second choices ahead of the two old white dudes. May 2019 still seems rather early, but that is important in a large field. Hopefully, they both can eat into the support of the top two and gather general support.
People have argued that dissidents should be honest about Biden's appeal. I'm willing to see some of that, but the problems have not disappeared. Recent polling does suggest (I will reference what I saw without links here) that Bernie Sanders is in trouble though. He still has second place, but a sort of distant second (one poll had Biden at around 35% and Sanders at 18%), providing hope that Biden (including for the anti-left) and Warren (for the left, at least those not sexist) is getting his support. If it was just Biden and Sanders, I still would be appalled enough to feel like not voting, but admit Biden is somewhat better as a whole on some level. Prudentially at the very least. Policy-wise, Sanders might be better if not practicably. To me, he remains a gadfly figure.
A basic problem with Biden for me is that he is sort of the "status quo ante" candidate, when we need to address bigger game. At some point, this has to be done, and 2020 is good of a time then ever. After all, we are facing Trump, not some generally bad candidate, who has some positives. As some have noted,* the problem is not just Trump. It is in effect Trumpism and to me Biden's focus on Trump here is in a way rather troublesome. the fact that Biden has some support here is duly noted. Temptation to avoid bigger problems is a common occurrence. But, the problems fester. More so if the "solution" denies part of the problem.
And, I will repeat, Biden has issues that make him problematic as a whole. First, he is going to be an issue for some in the Democratic Party as a whole, which the opponents will surely use. The response partially is that we cannot let them! Charming but a primary process is there to find the best candidate. This includes actually finding something wrong with the options you do not choose. If Biden has issues, including from some women (gaslighting them by denying there isn't any ... so helpful), they deserve to come out. This includes finding a "middle way" on let's say global warming. It is realistic to compromise, but at some point, compromising leads to weak positions. This isn't 2008 here.
One sentiment is that Biden (or Sanders) will appeal to Trump voters to some extent or at least the Trump curious. Some other candidates make such an appeal, including the two longshot female senators, who cite winning such voters in Minnesota and New York. I myself am somewhat intrigued as to the former as a sort of compromise candidate for that very reason though don't know how useful it would be in the long run. The old white dudes (yes, I say this with some scorn) are more blatant about it, at least in a dog whistle sort of way (McCain's family has expressed their admiration for Biden; a sort of Never Trump vote). This has a sort of tail leading the dog quality. At some point, we need to get past that.
An op-ed also addressed the problem of the Senate. It basically warns us that the Democrats have little chance in winning in 2020. I do not want to concede that -- admittedly, this is from someone who didn't want to concede 2018, which basically went as best as one could hope given the bad hand dealt. Still, there is still reason to credibly think the Democrats can eke out a victory at least in 2020. It would be better if more attention -- as things go, it is getting late -- was given to key races. There should be a clear understanding that, let's say all those Warren plans, Senate control is essential if we are to do more than simply get rid of Trump.
One intriguing thought is a proposal to give Native Americans representation in the Senate. Looking it up, population-wise, they very well would deserve it comparably. The idea of senators for both Atlantic and Pacific territories (two each) is also interesting though the population numbers work better (even on a "but Wyoming" level) as to the former. I have expressed my discomfort to giving D.C. two senators both on a population level and given it is more city, than state, but realistically, that too is worth serious thought given the system in place.
I also think the Laurence Tribe "at large" senators option is intriguing. The House of Lords was originally a matter of lords with certain territorial possessions, generally speaking, I suppose. But, in time, lords was added for a variety of reasons, in part to water down the original lords' power without needing to completely do away with the institution. At large senators would require a constitutional amendment, probably, but it doesn't seem to run into the special barrier to denying equal representation.
Dealing with things involve a range of governmental and non-governmental matters of diverse breadth. See, e.g., my recent comments on the progressive Christian writer that died recently. We saw this in the area of both guns and gays really -- change in the courts there was tied to change in society and local government. But, big picture governmental issues also are important to face up too and the Senate is one. It might seem like an impossible task. Did not other major changes over our history? Moving past the 27th Amendment joker, I don't think constitutional change suddenly ended around the time I was born.
The same applies to other matters -- impeachment of a president, two electoral over popular vote victories and (on the horror scale) destruction of the World Trade Centers all happened after 1990. Who would have thought most of these things (though a major terrorist attack probably is most believable, especially after the first bombing ... still after 1990) would have occurred even a few years earlier? Other than as thought experiments?
Trump in power is horrible. It is not possible. It is actuality. Let's think big in another way as well. The level of different, yeah yeah, but on some level a President Biden appalls me too. We need to think bigger. This includes the first woman president!
---
* The piece references a conclusion that Elizabeth Warren is the candidate who is seriously addressing the full breadth of the problem at hand. The blog used to have at least two contributors, to the degree they had a leaning, lean toward Gillibrand. Now, the sentiment is more Warren, even from a guy who sneered at the actual differences given other concerns.
Granting the force of the argument, I do lean toward Kamala Harris. She has recognized the problems at hand, including supporting starting impeachment proceedings, while providing something of a more moderate approach. This is my bow to pragmatics. She also has personal appeal, both charm and toughness (see questioning of Barr). She stands strong with Warren here.
A poll that put Biden in the lead by a significant degree (though only in the mid-30s among the field) put both Warren and Harris (a bit behind) as strong second choices ahead of the two old white dudes. May 2019 still seems rather early, but that is important in a large field. Hopefully, they both can eat into the support of the top two and gather general support.
Wednesday, May 08, 2019
C.S. Lewis through the Shadowlands
After re-watching Shadowlands, I obtained the book covering the love story between C.S. Lewis and Joy Davidson, helpfully providing a biographical background of each. The film also had dramatic license regarding their time together (including editing out one of her sons!). Both are good in their own ways, though the book (already short) could have cut out a bit of author quotations. The religious beliefs is less convincing than the love story. To me, God and religion is a sort of poetic metaphor and I am not an author of symbolic fiction.
Monday, May 06, 2019
Rachel Held Evans (RIP)
I saw reference of her death at age 37 (two very young children) and it was followed by a slew of sadness and praise for this progressive evangelical voice (a thing). I was not familiar with her but checking her online writing and Youtube videos suggests why. With all the negativity out there regarding religious matters, much well earned, voices like her are fundamental. To underline it, people expressed how wonderful she was as a person and helper professionally. ETA: She was a fan of Game of Thrones, which I do not watch. Checked out the Chilling Adventures of Sabrina (graphic novel) and liked some aspects. It's much darker (see what happens to Harvey alone!) than the cutesy t.v. show on years back. But, don't like the raised from the dead plot much. Sabrina also isn't enough in charge of the story for my liking.
"Allegations remain in forefront for Kavanaugh, 7 months after his confirmation"
SCOTUS is only scheduled to have a conference this week as it works on all those opinions but Kavanaugh popped up in this extended piece. Like the Mueller Report, the judicial oversight council threw the ball in Congress' court. Will they ignore their responsibilities, including oversight over the executive's failings (my thoughts as to constitutional duties in comments)? See too a reference to Ed Whelan, a conservative troll who got the last laugh. And Also: John Oliver dealt with lethal injection last night; an article on potential problems with nitrogen gas. Veep continues to be disappointing.
Saturday, May 04, 2019
Gilmore Girls: A Year in the Life
And Also: The People And The Books discusses eighteen works of Jewish literature from two books in the Hebrew scriptures to the stories that inspired Fiddler on the Roof. One attempt to apply reason to everything and another to mystify everything (sort of a Jewish Gnosticism) was a bit tedious, at least the discussion (with all the jargon), though I understand the charm of making what might be seen as an isolated God more approachable via a form of poetry. As a whole, I found the book interesting and helpful to get a sense of stuff like the works of Philo and Josephus.
I was a big fan of this show though less in later seasons when the characters started to outstay their welcome and not develop in interesting ways. The last season was "eh." Lorelai and Rory always has a self-centered nature to them but the show didn't want to in effect punish them for it. So, Rory goes so far as cheating with Dean (her ex, who married) and the story had it like the wife's family were the bad ones for dissing Rory. The story went just so far (including having Rory get reckless and have to do community service) but then stopped. Lorelai also had a tiresome connection to her teenage boyfriend (and her rich boy bf), much less interesting than others like Max or Luke. Rory's college boyfriend was boring. I didn't even see the full last season at the time.
But, early on, the leads were charming and Rory finding her way, her first love etc. was nice. The original creator (not a fan of that last season and never getting to end things with four words that we never were told about) came back for this Netflix series about a decade later, four episodes matching the seasons of a year, each sort of a double episode. I saw it this week on DVD; no extras (shame) and liked it as a whole. Nice to see various old friends in cameos (Dean and Sookie in the final episode; others like Paris and Lane received more airtime; the old headmaster had a cameo but no Max). The last episode had some tedious Wild (the book, not the movie!) content and an extended enchanted evening segments. But, as a whole, it didn't seem padded or anything.
The primary content gave each of the "girls" their own plot developments. Rory is having something of a crisis, both professionally and personally (she has a safe boring boyfriend and whenever she pops into London, she is with her college boyfriend Logan, who is engaged). She has those last four word -- "mom, I am pregnant." Alex Kingston plays a goofy Brit who early on wants her to work on a book. She later fills in as editor of the town paper (two old employees, who don't appear to do anything; does Rory write all the content?). Per a suggestion by her old boyfriend Jess (a few scenes), she decides to write a roman-a-clef she entitles Gilmore Girls. But, the episodes do not really provide much of a resolution to her troubles. We don't know who the father is. Logan? Well, she very well could have slept with someone else too.
Lorelei and Emily Gilmore also have various plot developments, including dealing with the death (per real life events) of Richard Gilmore. They both have issues to handle, moving on and clearing things up (thus the aborted "Wild" hike by Lorelei). With Richard around, Emily lets herself go some, and you see some Lorelei in there (including a twisted naughty side). And, Lorelei always had some more traditional sentiments (including always pining for her first boyfriend and she was comfortable dealing with her mother's world, even if she didn't like it). Lorelei is living with Luke and one subplot has them thinking of getting a surrogate and turns out Paris is running such a business. Miss Patty popped up, but missed her.
Emily sells her home and the other two get married, so their plot lines end smoothly. Emily overall gets more attention than the regular show often gave her, including dealing with a family of servants who speak some unclear language (we see subtitles at times). Some of the supporting characters also have moments, including the mayor, Kirk (still with Lulu but instead of kids, they got a pig) and Michel (looking good in a bathing suit), who is now married and he/his husband are planned to have a child.
Near the beginning, it being "Winter," Lorelai said it smells like snow. It smelled to me like nostalgia. Again, minus a bit of material I'd edit out, mostly enjoyable. This was released in November 2016, so maybe that was well timed. It was said that Gore won the election in Stars Hollow. She didn't come up, which is a bit curious; maybe she was edited out, but Hillary Clinton probably did as well.
I was a big fan of this show though less in later seasons when the characters started to outstay their welcome and not develop in interesting ways. The last season was "eh." Lorelai and Rory always has a self-centered nature to them but the show didn't want to in effect punish them for it. So, Rory goes so far as cheating with Dean (her ex, who married) and the story had it like the wife's family were the bad ones for dissing Rory. The story went just so far (including having Rory get reckless and have to do community service) but then stopped. Lorelai also had a tiresome connection to her teenage boyfriend (and her rich boy bf), much less interesting than others like Max or Luke. Rory's college boyfriend was boring. I didn't even see the full last season at the time.
But, early on, the leads were charming and Rory finding her way, her first love etc. was nice. The original creator (not a fan of that last season and never getting to end things with four words that we never were told about) came back for this Netflix series about a decade later, four episodes matching the seasons of a year, each sort of a double episode. I saw it this week on DVD; no extras (shame) and liked it as a whole. Nice to see various old friends in cameos (Dean and Sookie in the final episode; others like Paris and Lane received more airtime; the old headmaster had a cameo but no Max). The last episode had some tedious Wild (the book, not the movie!) content and an extended enchanted evening segments. But, as a whole, it didn't seem padded or anything.
The primary content gave each of the "girls" their own plot developments. Rory is having something of a crisis, both professionally and personally (she has a safe boring boyfriend and whenever she pops into London, she is with her college boyfriend Logan, who is engaged). She has those last four word -- "mom, I am pregnant." Alex Kingston plays a goofy Brit who early on wants her to work on a book. She later fills in as editor of the town paper (two old employees, who don't appear to do anything; does Rory write all the content?). Per a suggestion by her old boyfriend Jess (a few scenes), she decides to write a roman-a-clef she entitles Gilmore Girls. But, the episodes do not really provide much of a resolution to her troubles. We don't know who the father is. Logan? Well, she very well could have slept with someone else too.
Lorelei and Emily Gilmore also have various plot developments, including dealing with the death (per real life events) of Richard Gilmore. They both have issues to handle, moving on and clearing things up (thus the aborted "Wild" hike by Lorelei). With Richard around, Emily lets herself go some, and you see some Lorelei in there (including a twisted naughty side). And, Lorelei always had some more traditional sentiments (including always pining for her first boyfriend and she was comfortable dealing with her mother's world, even if she didn't like it). Lorelei is living with Luke and one subplot has them thinking of getting a surrogate and turns out Paris is running such a business. Miss Patty popped up, but missed her.
Emily sells her home and the other two get married, so their plot lines end smoothly. Emily overall gets more attention than the regular show often gave her, including dealing with a family of servants who speak some unclear language (we see subtitles at times). Some of the supporting characters also have moments, including the mayor, Kirk (still with Lulu but instead of kids, they got a pig) and Michel (looking good in a bathing suit), who is now married and he/his husband are planned to have a child.
Near the beginning, it being "Winter," Lorelai said it smells like snow. It smelled to me like nostalgia. Again, minus a bit of material I'd edit out, mostly enjoyable. This was released in November 2016, so maybe that was well timed. It was said that Gore won the election in Stars Hollow. She didn't come up, which is a bit curious; maybe she was edited out, but Hillary Clinton probably did as well.
Thursday, May 02, 2019
Death Penalty Watch
Two people were scheduled to be executed today, but Texas had another execution (Dexter Johnson) held up:
The other execution was out of Georgia involving a double murder (a third person was also shot; two kids were at the scene too) arising when Scotty Morrow (to quote his petition) "went to the home of his former girlfriend, Barbara Ann Young, in an attempt to save their faltering relationship." The state reply provided a somewhat more negative summary, including past harassment and sexual violence. As noted there, the argument is that the "trial court, not the jury, made the necessary finding for death when it imposed a sentence." Others referenced his abusive childhood.*
But, though it took to close to 9P.M. for whatever reason, the Supreme Court (without dissent; thought maybe Sotomayor, who voiced concerns about related matters, might) rejected his stay. He was then executed. As an opponent of the death penalty, I'm not one to deny some (not all) of these cases have some particularly horrible facts. My basic concern is that the death penalty, especially the arbitrary process of carrying it out, is not the appropriate way to deal with the situation. This includes addressing the serious domestic violence situation in this country.
Two executions are scheduled on the 16th.
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* Sister Helen Prejean (Dead Man Walking) had a long thread on Twitter, but another death penalty activist, Hannah Riley, summarized:
Take the case at issue. As a matter of deterrence, putting aside the issues of the twenty-five year lag time between crime and execution, the sort of emotional tinged crime at issue is not likely to be deterred by executing some people especially per the limits of our system of justice. As to retribution, the emotion and background of the murderer here tempers things to some degree, plus again, not sure how useful or appropriate it is to execute a selective number of people here.
Why twenty-five years in prison is not appropriate is unclear on a certain level. Again, the system as a whole stands flawed, over individual cases.
For more than a decade, the condemned killer lodged appeal after appeal based on allegations of brain damage and intellectual disability, but in the end it was the possibility of a conflicted attorney and ineffective lawyering that prompted a federal district judge to side with him.The sentence was based on a double murder during a carjacking.
The other execution was out of Georgia involving a double murder (a third person was also shot; two kids were at the scene too) arising when Scotty Morrow (to quote his petition) "went to the home of his former girlfriend, Barbara Ann Young, in an attempt to save their faltering relationship." The state reply provided a somewhat more negative summary, including past harassment and sexual violence. As noted there, the argument is that the "trial court, not the jury, made the necessary finding for death when it imposed a sentence." Others referenced his abusive childhood.*
But, though it took to close to 9P.M. for whatever reason, the Supreme Court (without dissent; thought maybe Sotomayor, who voiced concerns about related matters, might) rejected his stay. He was then executed. As an opponent of the death penalty, I'm not one to deny some (not all) of these cases have some particularly horrible facts. My basic concern is that the death penalty, especially the arbitrary process of carrying it out, is not the appropriate way to deal with the situation. This includes addressing the serious domestic violence situation in this country.
Two executions are scheduled on the 16th.
---
* Sister Helen Prejean (Dead Man Walking) had a long thread on Twitter, but another death penalty activist, Hannah Riley, summarized:
Scotty Morrow will be executed tonight in Georgia. He witnessed & was subjected to horrible abuse throughout his youth. At 3, he saw his dad stomp on his pregnant mother’s belly, causing her to miscarry. When they fled to a relative's home, at 7, he was repeatedly raped.Sister Prejean argues that the jury did not get a full sense of his background and the result would have been different if they did. Basically, however, the people involved here tend to be scarred souls and execution of a few of them to me is not a very helpful way to address the situation.
Take the case at issue. As a matter of deterrence, putting aside the issues of the twenty-five year lag time between crime and execution, the sort of emotional tinged crime at issue is not likely to be deterred by executing some people especially per the limits of our system of justice. As to retribution, the emotion and background of the murderer here tempers things to some degree, plus again, not sure how useful or appropriate it is to execute a selective number of people here.
Why twenty-five years in prison is not appropriate is unclear on a certain level. Again, the system as a whole stands flawed, over individual cases.
Some Trump Goings On
You can go to various outlets like Talking Points Memo, Lawfare and Just Security (and ACS Blog) to get a sense of the Attorney General Barr testimony yesterday. Dahlia Lithwick, who I at times don't like, also had another good piece per a recent series of them. Overall, there was some value to the process of him publicly answering questions, putting things on the record and having the Democrats in particular put their views in front of the American public. There is some grandstanding here but such is politics. Also, some of the senators in particular are fairly good questioners.
My general sentiment brought to mind the Laura Penny "b.s" definition -- a basic disrespect for the truth. It is a step beyond lying. See also, Sen. Lindsey Graham who afterwards said "it's over" when asked if Mueller would be called to testify. Good thing we have the House Democrats. But, Nancy Pelosi, their leader and third in line to the presidency, did say Barr "lied" to Congress, a crime. [ETA: Perhaps, it is not a crime. Realistically, at least, Barr is not likely to be prosecuted. The piece reaffirms my "b.s." sentiment. Plus, impeachment and appeals for him to resign go past crimes. My basic concerns hold.]
Let's see how that goes. Suffice to say more being "concerned" isn't enough for me. Even if, per my addendum, he did not break a criminal law, he is violating a basic rule of appropriate behavior here. Clear law and explicit constitutional barriers are not the only concern. We saw this with blocking Merrick Garland from even having a hearing. Barr refused to testify there when staff attorneys were going to be involved in the questioning. Republicans chose to have a surrogate do some of the questioning in the Ford/Kavanaugh hearing and an official party counsel doing questioning would be ideal.
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Republicans have in general gone full Trump, but here and there, they have done more than being concerned at times. One thing they did was send a message that troll candidates to the Federal Reserve Board was not a good idea. This, along with their own problems, led to Herman Cain and Stephen Moore to eventually withdraw their nominations. The odd judicial nominee (the black Republican from South Carolina found a couple at least too racially problematic) and executive official (e.g., the food king guy dropped out but the eventual Secretary of Labor [Acosta] has issues too) was found wanting. Nonetheless, we are not talking much of a check.
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The brief that agrees with an out there (even for people who supported past bogus related litigation) district court ruling that would declare ACA as a whole unconstitutional dropped yesterday. A less reported on decision was not to defend a federal law against FGM, a move that is at least somewhat reasonable. Still, not defending a federal statute is a weighty move and it is best if possible that the matter gets judicial review. So, the House of Representatives move to intervene (which should have some bipartisan support though who knows) seems like a good idea.
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Meanwhile, today is the National Day of Prayer, which is pursuant to congressional legislation (joint resolution). Thus, the target of any concern ala Jefferson about such a thing is shared. The link there provides a means to read the current proclamation. There is a condemnation of hate and disruption of worship, including at places of worship, which is tragically not merely theoretical these days. This and a general respect for religious liberty is fine enough though Obama was careful to note those who do not believe in God. As recently noted, "prayer" is a broad thing.
My general sentiment brought to mind the Laura Penny "b.s" definition -- a basic disrespect for the truth. It is a step beyond lying. See also, Sen. Lindsey Graham who afterwards said "it's over" when asked if Mueller would be called to testify. Good thing we have the House Democrats. But, Nancy Pelosi, their leader and third in line to the presidency, did say Barr "lied" to Congress, a crime. [ETA: Perhaps, it is not a crime. Realistically, at least, Barr is not likely to be prosecuted. The piece reaffirms my "b.s." sentiment. Plus, impeachment and appeals for him to resign go past crimes. My basic concerns hold.]
Let's see how that goes. Suffice to say more being "concerned" isn't enough for me. Even if, per my addendum, he did not break a criminal law, he is violating a basic rule of appropriate behavior here. Clear law and explicit constitutional barriers are not the only concern. We saw this with blocking Merrick Garland from even having a hearing. Barr refused to testify there when staff attorneys were going to be involved in the questioning. Republicans chose to have a surrogate do some of the questioning in the Ford/Kavanaugh hearing and an official party counsel doing questioning would be ideal.
===
Republicans have in general gone full Trump, but here and there, they have done more than being concerned at times. One thing they did was send a message that troll candidates to the Federal Reserve Board was not a good idea. This, along with their own problems, led to Herman Cain and Stephen Moore to eventually withdraw their nominations. The odd judicial nominee (the black Republican from South Carolina found a couple at least too racially problematic) and executive official (e.g., the food king guy dropped out but the eventual Secretary of Labor [Acosta] has issues too) was found wanting. Nonetheless, we are not talking much of a check.
===
The brief that agrees with an out there (even for people who supported past bogus related litigation) district court ruling that would declare ACA as a whole unconstitutional dropped yesterday. A less reported on decision was not to defend a federal law against FGM, a move that is at least somewhat reasonable. Still, not defending a federal statute is a weighty move and it is best if possible that the matter gets judicial review. So, the House of Representatives move to intervene (which should have some bipartisan support though who knows) seems like a good idea.
===
Meanwhile, today is the National Day of Prayer, which is pursuant to congressional legislation (joint resolution). Thus, the target of any concern ala Jefferson about such a thing is shared. The link there provides a means to read the current proclamation. There is a condemnation of hate and disruption of worship, including at places of worship, which is tragically not merely theoretical these days. This and a general respect for religious liberty is fine enough though Obama was careful to note those who do not believe in God. As recently noted, "prayer" is a broad thing.
Our Nation acknowledges that religious liberty is a natural right, given to us by our Creator, not a courtesy that government extends to us. The First Amendment recognizes the freedom of religion and safeguards this right against government infringement. The United States’ steadfast commitment to upholding religious freedom has ensured that people of different faiths can pray together and live in peace as fellow American citizens. We have no tolerance for those who disrupt this peace, and we condemn all hate and violence, particularly in our places of worship.The specific law speaks of a "national day of prayer" and that's it. This need not, though many who voted for it might have thought so, include references to "our Creator" or "God’s guidance and continued protection" or "dependence on God's love" and so forth. Over the years, I have voiced my opposition to a day set out to honor a sectarian religious practice. But, this sort of thing underlines that there can be an added problem in application. I also caught one more thing on close reading:
I invite the citizens of our Nation to pray, in accordance with their own faiths and consciences, in thanksgiving for the freedoms and blessings we have received, and for God’s guidance and continued protection as we meet the challenges before us.So, non-citizens are SOL, or what? Yes, I see the "in accordance" language, which is mildly appreciated. But, really.