Every Single Republican Senator Responds To Five Dems Brief in Gun Case

And Also: After sweeping the Indians, the Mets were swept by the Braves and Cubs (#2 Wild Card leader, now over them by five).  They followed up with a pitching duel vs. the Phillies ace that was broke by ten runs in the last two innings.  Losing streak over and Mets fans (with five more games vs. them and later on ten vs. scrubs) can continue to believe. I'm a tad tired of it all myself.  I'd add that it being September is a bit amazing. Time flies.

Both sides do it alert. 

Social media pundits, constitutional law professors, mainstream journalists, and conservative politicians are all agog about a brutally honest amicus brief filed in a Second Amendment case by Democratic Senators Whitehouse, Hirono, Blumenthal, Durbin and Gillibrand. Republican Senator Lindsey Graham called the brief  "an extraordinary threat from one branch of government to another."

I think Prof. Segall (who is a nice guy and I engage with him on Twitter too) goes somewhat too far with his takes but his general one here to me is basically on point.  A sort of Never Trump type with my first name is all concerned in comments and I respond too.  The focus on the so-called "demagogue" nature of the signatories is particularly tiresome. First, Sen. Whitehouse (the counsel of record) is simply not one. It is unfair to provide that label in respect to his long record speaking out against dark money in ideological battles in judiciary nominations and so forth.

[Leading with that and tossing in that they stand out among other senators in that category (and as to trustworthiness) is also petty. Inclined to substantively respond, even when just letting some things be, I cannot say that the adjective is totally off the mark.  At least three of the five* are known to be outspoken and ideological -- they are politicians -- but even on that front, that particular word is crude. But, the person is a conservative who even given the current leadership apparently simply cannot accept that there is actually a time for such things. So it goes.]

The amicus brief involves a quirky New York gun regulation that seems like a prime way -- after Kennedy -- for the Supreme Court to come back to the Second Amendment.  Just what SCOTUS will do with the law is unclear and it is even possible Breyer/Kagan would find a way to negotiate some sensible compromise. But, the state changed the law (loosening the restrictions) and the whole thing seems moot.  As the brief notes, as a matter of law -- even granting there is no true "neutrality" here -- keeping this case active is dubious.  It looks and is an ideological effort.  This is "honest" and to the limited degree this sort of amicus brief can be useful, nothing is wrong with it even if some sacred cow is targeted too.

Out  in  the  real  world, Americans are  murdered each day with firearms in classrooms or movie theaters or churches or city streets, and a generation of preschoolers is being trained in  active-shooter survival drills.  In the cloistered confines of  this Court, and notwithstanding the public imperatives of these massacres,  the NRA and its allies brashly presume, in word and deed, that they have a friendly audience for their “project."

If one does the work, one can probably find other amicus briefs signed by at least a few (only five here though four do serve on the Judiciary Committee) that particularly target some ideological interest group.  [The "work" part often comes to mind.  This brief has received significant attention. Did anyone provide examples of other briefs that members of Congress signed to those not aware that they regularly sign amicus briefs?  Put aside some that at least a handful signed that has more bite?  I repeatedly have such questions. Discussions tend to be incomplete.]

The "brutal" part is not only the visceral nature of the attack on the NRA here, but the "friendly audience" business. The discussion of the Federalist Society's involvement in the judicial nomination process itself is a sort of subtweet (well the Kavanaugh confirmation fight is directly cited) to multiple members on the Court. Then, there is talk of "bare partisan majorities" (the professor linked rather us talk about "values" but there does seem to be overlap here) and a direct rejection of Roberts' talk of "balls and strikes."  Noting this comes off as a bit personal, what part is untrue?  The gaming of litigation isn't present on one side, but one side does control the Supreme Court at this moment.  (The brief cites Roberts' dissent in the same sex marriage case accusing the majority of not resting on the law.)

The  Supreme  Court  is  not  well. And the people know it. Perhaps the Court can heal itself before the public demands it be “restructured in order to reduce the influence of politics.” Particularly on the urgent issue of gun control, a nation desperately needs it to heal.

The brief quotes public polling to show that a majority of the public now thinks the courts are too influenced by politics and should be "restructured" to address that.  The brief ends on that note to emphasize that still hearing this specific case would send a horrible message.  But, it also underlines for some how blatantly the senators are "threatening" the Supreme Court. As the professor notes, it is unclear how scared they are that five senators wrote an amicus brief.  It is unclear how much even a majority of the Senate doing so would affect them. OTOH, that would be a lot more notable than five members of the minority party, including an also ran POTUS candidate. 

And, every single Republican senator, led by the Majority Leader of the Senate (fourth in line to the presidency, leader of the effort to secure the conservatives' fifth vote) did just that.  They signed a letter to the Supreme Court, discussed/linked here, in response to the brief.  It spoke of "several of our Democratic colleagues" (that would be five) and how they "openly threatened" to pack the Court.  How they would manage this is unclear.  The letter speaks of threats to judicial independence but then the amicus brief had the same message.  It warned of how ideology over law was ruling the day.  The party that left the Court with eight members for over a year preaching this message is a bit rich.

The letter is repeatedly blatantly partisan.  "Democrats" are the target. They "peddle" things though it is not "mere pandering" but a direct immediate threat. Republicans should know about true threats here.  Their concern about "opportunistic politicians" here is again rich. Sen. Whitehouse et. al. are addressing general concerns that are not just concerned about the moment or winning political campaigns.  And, the net message is fairly similar the other way.  If the Supreme Court actually does declare the matter moot (though they insist they are not taking a position), the message would be that they are giving in to threats.  As to Republicans not supporting packing the Supreme Court later on, sure.  They already did. 

[The letter responds to an amicus signed on by five Democrats in a way that provides a general attack on Democrats in general, including those running for POTUS.  The amicus is tied to a specific case. The more general statements by people like Buttigieg are not.  They are general policy proposals which are in the bailiwick of the political branches. A basic blatantly partisan statement addressed specifically to the Supreme Court on such a subject is rather dubious.  It goes a step past a flourish tied to a specific case that arguably should be declared moot because the only reason for it not to be seems to be as some sort of special interest issue vehicle or at least the concern that is the appearance of the matter.] 

Every single Republican signing such a letter, even if you think the amicus of five senators went too far, is not "both sides do it" material.  It is blatant partisan activity.  Five senators, with a lot of instigation, to me were right to sign that brief.  I'm not going to take the vapors.  Even here, no need for smelling salts.  But, it definitely is rather blatant and worthy of special note.  It is rather hard to take given what they did as well.  Again, the justices might not care though one or more might care somewhat.  Realistically, this level of battle has some consequence.

Anyways, both sides (or "the Senate") do it is b.s.  One side is a lot worse. Prime example.

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* After being unable to get into the third debate (other than Tulsi Gabbard and a bunch of white guy also rans, it looks like mostly everyone will), Sen. Kirsten Gillibrand gave in to reality and suspended her presidential campaign.  This is a bit sad but not too surprising. Her campaign thinks the whole Franken thing (a bs thing that a loud few continue to whine about online etc.) was a major reason here and some are inclined to agree.

As I and others note in comments to such threads, it seems more a matter of her not being able to find a place is a crowded field, one with multiple women (women's rights is a basic concern of hers) and Biden (if he wasn't in the race, there would be let's say more pie, including perhaps for an established pol who made being anti-Trump a key part of her campaign while still arguing she has the ability to work across party lines).

She has an "insider" taint to her that probably hurt, including a few moves (such as tempered response to an attack on Rep. Omar) that bothered the few who were paying attention.  KG had a bit of pol vibe, fair or not.  Early on, especially given her anti-Trump record and some feminist bona fides, I was a big fan.  I saw her kick-off in NYC in person.  But, with Warren and Harris (to me Klobuchar is a reasonable option but few seem to be interested) and her not getting much traction, I basically moved on. 

I Spit On Your Grave (Book)

One way to deal with more books per the Internet and all is to basically not read them. I skimmed over multiple books this week, including a little one on I Spit On Your Grave. There have been various books on horror movies, including from a feminist perspective over the years, as well as a blog named for the alternative title. The author of this generally interesting discussion seems not be familiar with her (saw no reference).

I have spoken over the years of my respect of the original and disappointment with the remake (the author of that blog at one point made clear to me that she wasn't a fan either; she basically ignored it). Did not see the two sequels (one a redo of sorts; the other brings back Jennifer for a twist) or the original unofficial sequel. There is now a ridiculously long (over two hours!) sequel by the original director that I guess I need to see eventually.

Anyway, I appreciate the effort. Meanwhile, have been watching Friends again, the Emily/Chandler and Monica hook up plot lines taking place. I'm definitely team Chandler/Monica, relating some to Chandler in general. There is a 25th anniversary coming around with some people bashing the show. A fairly unsurprising thing really though a bit silly.

Evolving in Monkey Town

Rachel Held Evans (RIP) first book was later released as "Faith Unraveled," a dubious title really. The original made sense (she grew up in Dayton, of Scopes Trial fame). Anyway, the first book has her voice but after a while seemed a bit stuffed. Plus, maybe at twenty-seven or so, it was a tad too young. Finally, at points, it was somewhat unconvincing. Her citation of Revelations regarding all nations being saved? Well, a segment. A lot will be damned.

Her second book has some of the same themes with more content (even pictures!) mixed with her "project." The third was one I couldn't get into; it was the most "insider" of the bunch. The fourth was shorter one, perhaps since it was written around children, but a worthwhile analysis of the Bible with special creative content. Her husband has a new statement at her website about an "evolving faith" event later this year that she had some part in. RIP, RHE. Her blog and Youtube vids are still there to help some.

Legislative Prayer Policy Explicitly Favoring Theism Upheld

The oral argument in Town of Greece v. Galloway underlines the problem -- multiple justices (leading even the opponent's lawyer to in effect throw the atheist under the bus) ridiculed the idea of a neutral prayer policy that covers non-theists. The problem seemed to be the effect of the policy was to favor certain religions but perhaps the nature of enterprise made retaining any prayer policy problematic. But, many places do manage to welcome non-theists giving invocations. A policy that explicitly doesn't goes further than even the Supreme Court did. It especially has a blatant sectarian purpose, not just effect. It is blatantly unfair.

Books/TV/Baseball

There was recently a day honoring black cats and Patricia Highsmith had one (Spider), even dedicated a book to him so will check out some books by her. I started by re-reading The Price of Salt (Carol), her second book-movie (if much later), starting off with Strangers On A Train. The movie is fairly loyal though makes Therese a photographer and takes out a few Therese scenes; to me, it works better. The book is good but seems a bit too long. I'm reading a fiction book [Amreekiya] I found by chance at the new Van Cortlandt Park Library (nice place) about a Palestinian-American. It goes back and forth from her childhood and early years of her marriage. Nice down to earth first effort.

By chance, I found that the Danish t.v. show Borgen is playing on an arts channel and have a chance weekly to watch the third season. Fitting for the "Trump wants to buy Greenland" thing, which by now is almost old news. (Our ambassador had a short lived "Z" class movie career.) It skips forward a few, the first female PM now out of power and wanting to come back. Meanwhile, the Mets swept the Indians [sloppy play; As swept Yanks, pushing them into a Wild Card slot] in their "see they can beat more than bad teams" playoff race period but the Braves continue to trouble them. Still not quite in a WC slot.

RBG Is Okay ... how about a baseball sock?

right? like people are gonna stop and be like “hey what’s with the sock?” making you seem like a very interesting, complex person with worldly, artistic taste and an enviable sense of humor

Nothing like Astros (for a minute, Mets back in the day) pitcher Collin McHugh's cool wife (both are very articulate and introspective about things and seem like down to earth people too cool for me to be near) to respond to me on Twitter to make my too many tweets worth it. The idea: what is better, a signed jersey or a sock, as a souvenir. I noted that a mounted sock would be an amusing conversation piece. A couple of women law professors liked somethng I said too. So, you know, swoon.

Since a nothing summer order list was not enough SCOTUS news, we had another update on RBG's ongoing medical issues.  She has been open about keeping people abreast of such things though learning about the procedure after the fact suggests she is selective.  So, we are left to continue to hope her health continues (in her frail looking, but healthier in some ways than someone much younger, ways such as her work out routines) for sixteen months or so.  Likewise, we get the "she [and Breyer] was stupid not to retire c. 2011 and everyone does it anyhow" takes that in time are harder (let's hope not totally so) to refute though they continue to be a tad overblown.

The idea that justices did not retire "strategically" -- as noted in that post -- is rather hard to refute.  But, you know, it was somewhat recently (note the examples) when you can cite loads of examples.  (Lower court judges also retired strategically too or just retire early for various reasons.)  Over the history of the Court, how many justices really retired early?  The history isn't too hard to check. Court after Court, up to the Warren Court involved justices who only left when they were sick, rather old or died.

My big thing is that the past in constitutional matters only should guide us so much as things change, but it is somewhat informative all the same. This includes the fact that current judges lived through this era and it guided their view of things. Warren is highlighted, but he is actually rather atypical. Clark was pushed off.  Goldberg pressured as well and how did the two liberals going off early for strategic reasons (if different ones) work? 

The examples provided also amount to justices lingering on longer than they might have wanted.  Byron White very well likely was influenced by politics, Clinton the sort of more conservative leaning Democrat he would be comfortable with too.  But, he was on the Court for thirty years (wow) at the time.  Compare this to Breyer. He was on for around fifteen (contrast this even with Stewart*). Why isn't this at least mentioned? It doesn't necessarily justify he staying on (personally, I think the case is harder for him though less so regarding a two term POTUS possibility)  but it seems like cheating not even to TALK about it.  The same with his general understanding of his place as some sort of pragmatic republican player, seeing the aftermath of Bush v. Gore as basically a victory of how the machine smoothly marched on. 

The idea of two justices blatantly resigning, at least one basically a decade before his time, for strategic reasons like this would very well not be a "yawn" moment, surely not for them.  Times have changed so I understand the sentiment that it would have been appropriate.  I understand how each had a view of their place, judges for thirty years and guiding the law in public service somehow for the rest of the time, mixed with (not only though) "ego" as one comment there noted.  Ego, I again note, works both ways there.  Good and bad.  Yes, RBG's husband dying factors in there as well as her new "Notorious RBG" persona though I think she had a firm sense of her place (now as the leader of the liberal wing, the last guy [guy] retiring at 90, and probably quite trusting Breyer who has a different approach) before that.  Again, I think the celebrity thing has gone too far but it's the era for that sort of thing as well. You take the good with the bad.

The Democrats easily could have lost the Senate in 2012 so 2011 (right after her husband died) would have been a prime chance for her at least to retire.  She wasn't on the Court for even twenty years (multiple male justices that she served with were on the Court for around thirty, again, something repeatedly not mentioned) and again was after years on the Court the senior liberal justice.  Not quite Stevens, who was more senior than Kennedy, but not a trivial place to be.   She had health issues but over and over again beat them.  O'Connor later felt she retired too soon to care for someone else (who had to go into a rest home right away anyhow, while she was replaced by someone who repeatedly was the fifth vote to overturn her opinions).  Another reason for RBG to be wary of a replacement, even one appointed by a member of the party who nominated her. 

In hindsight, though until she leaves not quite, her decision seems like a bad one. It looked like Clinton would win and a baby RBG would replace her.  You cannot have a clone though, including an angry former law clerk like Kennedy (who basically retired when he might have if given his druthers, after his thirtieth year, though he could have staid on or retired earlier if he had to ... again, is this ever noted? "strategic" has nuances).  But, the system in place also encourages a somewhat neutral "do this job until I am unable" sentiment that requires a lot to pre-emptively step aside.  Over and over again, people lingered on to long. It simply is not so very easy, even if she had some sort of obligation, to do leave early.

I personally never felt RBG had an obligation to retire though it was easier since I did not have to think about her being replaced by someone of another party.  We basically had even trades (if shifts like O'Connor-Alito) since the 1990s (White gave someone more liberal on some issues; the big one was Marshall with Souter turning out to be something of a relief). So, you get complacent there, I guess.  Term limits (which even more so seem like something due to come in the 2020s, which seems so far, but are not)  would help stable expectations with temporarily fill-ins (strategic retirements would therefore be open as a possibility but more limited in scope).  Also, I thought of her career as a whole and think she deserved some benefit of the doubt.  If she made a mistake here, some would just say it just tosses her life's work in the dustbin, so to speak.  But, it doesn't really since the world she helped bring still is here, the clock only so much able to be wound back.  Less so than some fear, enough to matter.

There was a mix of "things will turn out okay" in there that 2016 makes look stupid but she does serve on.  Each year and health scare makes one fear for that one incident, the odds getting a bit higher.  After all, that is a factor (far from the only one) that makes Biden look like a horrible choice.  So, I again, I understand though will defend and explain up to a point. More so Breyer, who one has little reason to think will not be around in 2021.  Breyer has come out as sympathetic about term limits unlike RBG too.  Anyway, you would figure he would follow her lead, one more reason to blame her, I guess.  No, you wouldn't think he would resign (with a bit less time, plus healthier) if she did not.  I find expecting him to resign even factoring in everything pretty lame honestly even if some strategic case can be made for something like that. When did some conservative in his place so retire?  Even if something is cited, it is not some obvious case.

The whole strategic retirement thing to me is bad policy but I'm not going to be all naive and say it isn't done. The path there to me is to have fixed terms. It won't totally change the practice though fixed terms can very well motivate people more to serve their whole terms given there are less years there.  Plus, the justices can still possibly fill in when there is a recusal or ala Souter even now do some lower court work.  The text seems to allow a "judge" position with twenty full years on the Supreme Court, still active to fill in as justice (so also "justice," a word that only pops up in reference to the Chief Justice presiding over impeachments)  and so forth. So, you still have life tenure (I think life tenure in a specific court is not quite the same thing but the text alone, without practice and theory, doesn't block this.) 

Long live Breyer and RBG, at any rate.

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* Justice Stewart looks to be an obvious strategic retirement but he really is an atypical case -- a modern day justice retiring in his mid-60s and not even someone like Souter who rather spend his days in his library in New Hampshire?  But, even he was approaching his 25th year and it is curious to consider that Stewart was aware of Reagan's promise to nominate a woman.  Again, there was not much of a sacrifice at all there.  In the end, he wound up dying a few years later anyhow. 

Death Penalty Watch: Larry Ray Swearingen [Dead] & Gary Ray Bowles [Dead]

Also SCOTUS:  Following up an earlier order by Roberts as circuit justice, SCOTUS voted to hold until after Labor Day, for further briefing, a case involving double jeopardy. The net result is a short term win for the government.  If a cert. petition is not filed by that time, the stay would end. If one was, it would remain in place until SCOTUS took further action.  Why this case was singled out among various others was not (as usual) explained.

(I wrote the core of this before the two execution dates and will add final results last.  I posted it after the executions or other action occurs. Again, it is unclear to me why the final SCOTUS orders come basically at the last minute.  A short window such as 48hr can be imagined to prep after a final order there unless in a very rare case where something truly changes at the last minute such as changing the procedures or something.  We already had one execution delayed because of cutting things so close.) 

On Dec. 8, 1998, Melissa Trotter, 19, disappeared from what is now the Lone Star College campus near The Woodlands. Swearingen was arrested on outstanding traffic warrants on Dec. 11. Prosecutors said he initially became a suspect because surveillance video showed Swearingen talking with Trotter at the North Shore Marina two days before her disappearance, when the pair made lunch plans.

A one victim murder has to be significantly bad for it to be a clear-cut case of "worse of the worst," a rough summary of what is deemed as the constitutional guideline.  Many still would think someone "sentenced to die for the kidnapping, rape and strangulation" was rightly so.  Also, "in the punishment phase of his trial, evidence was introduced that Swearingen had committed two unadjudicated rapes, one unadjudicated assault on his ex-wife, and that while awaiting trial, he had tried to escape."

We have another extended -- about twenty years -- time on death row. But, it also is a case where there were numerous appeals and delays in general to push back the execution.  The details in such case repeatedly is a mixture of active defendant litigation but also both some reasonable grounds and state action that helps delay things.  I don't know the balance in this specific case.  We also (see here and a paywall blocked Washington Post article) what might be a credible claim of innocence or at least reasonable doubt to warrant not executing him after twenty years.

Texas is scheduled to execute Swearingen on Wednesday; he would be forty-eight, committing the crimes in his late twenties. The Supreme Court, without a recorded dissent, denied his last minute appeal (focusing on his innocence claim).  He was then executed on schedule.  Well this time.

(I have seen a few people, including Radley Balko, arguing he put forth a strong case for innocence but less attention than some cases.  Enough probably to be concerned. It adds to the basic concern about ten or so horrible murderers, one or more likely with enough issues to make it a specific due process violation, being executed over so many other ones.  A sort of general due process problem. Not every one seemed to me to be "worse of the worst" either.  Just leave him to continue his long sentence.)

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Gary Ray Bowles started his eight-month murderous binge in Daytona Beach by killing John Hardy Roberts on March 14, 1994, inside the victim’s beachside home and now he is set to be the 99th death row inmate executed in Florida in modern times.

Bowles' first death sentence was overturned a tad ironically  because his hatred of homosexuality was deemed to be prejudicial.  But, it eventually was brought again though we had another extended (over twenty years) litigation battle.  Recently: "But the [Florida] Supreme Court said Bowles had failed to make a “timely” intellectual disability claim* because he did not raise the issue until 2017."  Thus, we have an article that spells out the procedure to be used (down to checking to ensure the team are not on drugs or something)  to execute our multi-murderer.

As with our last duo, the person who one might have less sympathy for might have the better chance looking at this from the weekend before.  Doing a docket search at the the Supreme Court website (both "capital" and the last name will do the trick), we see that Bowles' lawyers already have petitions up at the Supreme Court.  And, this isn't last minute!

Some Members of this Court have recently expressed reservations with “last-minute” litigation by death row prisoners under warrant. See, e.g., Price v. Dunn, 139 S.  Ct.  1533  (2019)  (Thomas,  Alito,  and  Gorsuch,  JJ.,  concurring  in  the  denial  of  certiorari). Mr. Bowles does not fall into that category. As the petition describes, Mr. Bowles’s intellectual disability claim had been pending for nearly two years when the Governor signed his death warrant. The expedited nature of this litigation was not the  result  of  Mr.  Bowles  filing  a  claim  in  response  to  a  death  warrant,  but  the  Governor signing a death warrant in the middle of Mr. Bowles’s intellectual disability litigation.

This is from a recent brief.  We also have a "Brief of Amici Curiae, Florida Association for Criminal Defense Lawyers and Florida Association For Criminal Defense Lawyers -- Miami Chapter" to support them.  There is a constitutional right not to be executed if one is below a certain intellectual level.  Hall v. Florida (2014) loosened the outer limits of determining this.  (It was 5-4, Justice Kennedy joining the liberals.)  The general argument is that the Florida rule is unconstitutional since if he is intellectually disabled, bringing the claim later should not matter.  And, the defense lawyers brief helps explain the 2017 date. The Florida Supreme Court only held in 2016 that Hall was retroactive.  Also, it argues under the Court's logic, Bowles would have had to bring the claim before the US Supreme Court had such a strict rule and since he claims to be around the borderline, his claim wouldn't have held up if he made it years back as desired.

Bowles had extended litigation with changing lawyers so I am not clear from a limited look why exactly the intellectual disability claim only arose in 2017.  But, the above very well suggests why, and it is a case of where new claims  might legitimately only arise long after the original trial.  As with Dexter Johnson's claims, allowing them to go thru does not necessarily mean Bowles would win on the merits.  It appears like this might be a close case.  Still, the hard barrier set up by Florida is a target that a defense might successfully attack over more easier than others. Finally, the fact the claim was not just brought (even if 2017 without the other stuff might seem too late, we are not talking truly last minute) might influence the votes of one or two conservatives. If it gets that far. 

There is also reference to concern about proper representation in this late summary of litigation. Florida is scheduled to execute Bowles on Thursday.  SCOTUS finally officially rejected the final appeals after 10PM, hours after the original execution time.  Justice Sotomayor flagged the problem of not hearing the merits of the intellectual disability claim but argued the actual petition was not an appropriate avenue of review.  Who knows what is in her heart of hearts when you need five votes to stay here.

The merits of the intellectual disability claim -- brought two years ago once procedurally possible -- should have been heard.  It seems to be a borderline case but the merits should have been heard.  Few tears should be shed for him personally but death penalty overall still is wrong and he could have fell under current rules regarding whom could not be constitutionally executed.  Sotomayor spoke of a "Kafka" process and in the end she did her part in furthering it, the passionate dissenter helping to legitimize things in a sense.  More executions in September.

Final summer order day tomorrow. [Yawn.**]

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* The Supreme Court, 6-3, held in Atkins v. Virginia that intellectual disability (then labeled "mental retardation")  is one of those characteristics (such as being under eighteen when committing the crime or insanity at the time of the execution itself) of the defendant that constitutionally blocks the death penalty.  There has not been a clear finding that actual innocence is a total bar though some suggestion in extreme cases that the federal courts should take another look.  As to the long time on death row, again, Justice Breyer's dissent in Glossip v. Gross is informative to deal with the issues.

Part of the equation, which changed the views of two justices, was the understanding contemporary standards warranted changing the holding of a ruling thirteen years before.  Justice Stevens, who authored the more recent opinion had dissented in the earlier case.  Three of the other dissenters were no longer on the Court.  This has been a factor in Eighth Amendment cases to get a sense if a punishment was proportional.  There continues to be some controversy including just how to "nose count" and how long something should be recognized as such to count. This arose here.

I think there is some validity to the concern though it is something that is likely to  come up in other constitutional matters.  Also, let's say there was some bite to the idea that the cited trend here was too new. The contemporary standards aspect is but one part of the equation; there is also a general rule that such and such might be unconstitutional even if it is not "unusual."  Plus, perhaps earlier there was a case to be made, but the recent trend tipped the balance.  So, how much does it really matter?

Finally, it might be a conclusion of the current state of affairs.  A flag here was that once you declare something unconstitutional that it was fixed.  Not only can this concern be cited for other things, those things show that constitutional law develops over time.  Something might not be fixed for all time in that respect. As to the specific matter, why cannot a state legislature, e.g., pass a resolution stating (perhaps with facts supporting it) such and such punishment -- if possible -- is a valid punishment?  F21 in the case also provides other groups (such as experts in the field) who help clarify the situation. They generally are not bound by constitutional findings of the Supreme Court. 

So, I do not really support the "one-way ratchet" concept here.

** SG granted right to participate in two cases of relevant federal concern, request to dispense printing of joint appendix granted (this pops up a few times in orders), a list of re-hearing denied [maybe, a FAQ page to explain this stuff?] and attorney discipline (the "D" order numbers as well as the names don't pop up when I did a search; the details could be interesting). 

Electors and Elections (2016/20)

I did not read the 100+ page opinion (it was not really simply ideological -- each judge on the panel was nominated by a different POTUS), the "it's moot" dissent only a few pages. Did listen to the oral argument and the result does sound reasonable. But, as discussed here, it is far from clear and there are complications. The lower court opinion went the other way.

I would really try to avoid deciding the merits if possible. Will SCOTUS now decide? The issue of faithless electors might matter more in this day and age; if Trump won two of the three Midwest states that decided things, this thing could have came down to one or two electors. And, then there is the "show us your tax returns" primary challenge that some liberals are worried about. (Will it invite tit for tat? make a national popular vote compact harder?) The state constitutional claim looks like it deserves more attention.

ETA: There was a move to make this an individual rights case, the electors having a right to vote, but independent electors were never really a thing. This made the 2016 "we need to stop Trump" fantasy just that in practice. There is some argument there but the text also seems to leave open broad power to the states (and Congress) to restrain as well. Plus, good policy would so hold. So, if possible, I would let political branches handle it.

Village of the Damned

After a few years, there are many repeats that I saw, but this was a first time seeing this film. It's a good creepy effort from the beginning on. Extended set up works well. Familiar face for me is the local scientist who years before played something of a ne'er-do-well in The Ghost and Mrs. Muir. The ending aside, there was a sequel.

The Cult of the Constitution

Under my real name, there is a book by me written over ten years ago (smh) on my view of the Constitution and I have a fairly absolutist view of things. I do repeatedly try to include a proviso that the courts are not the only way the Constitution is enforced.  So, for instance, my broad view on the rights to use drugs would not be something that the courts alone would enforce.  Also, a significant number of things occurred since the middle of the second Bush Administration.  But, I did have a broad view of the first two amendments.  I'm somewhat more restrained these days, especially when reading what to me is exaggerated absolutism, but at least my heart is with a strong view of things.  One that carried forth in other amendments too.

It is therefore helpful, from various perspectives, to get a another view of things.  This book honors the Fourteenth Amendment, but the Equal Protection Clause in particular.  One might suggest it has a certain "cult" of the "superright" (to use its language) here, one that honors the rights of non-white males in particular.  The book starts with a de-mythization of the Founding, which it argues was an active effort to protect the rights of well off white males.  And, in practice, this group still receives special benefits though they continue to feel (unjustly) aggrieved as victims.  This is not a necessary framing for the author's argument about how the First and Second Amendment is selectively enforced as a "cult" but is helpful to note all the same.

[The title is broad and the principle applied to these two amendments can be applied to other provisions as well.  The general idea of a "cult" of the Constitution, one often not based on actual knowledge of what the document even says, is not limited to the two amendments.  This applies to the pro-white male application.  This is suggested even here to the degree due process might arise and so forth regarding the subject matter.  The Constitution has to be seen as a whole, not singular parts that can be read in a vacuum in absolutist terms that often confuse the basic concept.  See, e.g., the Commerce Clause being thought of as having some limited function, one not even consistently applied. The book, however, covers the more limited ground.]

I think this book is somewhat of an overrcorrection but the targets warrant that sort of thing all the same.  The book provides a common stance that the current RKBA argument was a rather recent perversion of the text and history of the Second Amendment.  This is somewhat exaggerated.  It is not some 1970s development that there was a basic idea that we have a constitutional right, probably found in the Second Amendment (though not necessarily only there), to own a firearm.  There was a general idea (see, e.g., Dred Scott v. Sandford) even in antebellum times of some basic right to own firearms.  This being broadly understood as a "Second Amendment" right probably developed over time.  But, there was some core idea that citizens had the right to own a firearm.  The limits of that right was the rub.

The argument that the right to own a firearm is argued in absolutist terms, so much that even D.C. v. Heller for some is too restrained, is helpful.  This includes a reply to those who argue that guns are generally beneficial to self-defense.  The argument that guns writ large are counterproductive is a harder case to be made, but it is helpful to make a strong case to reply to the other side there.  And, the book is particularly biting in noting how even the NRA is rather selective -- when women "standing their ground" to guard against abusive husbands or blacks are selectively killed for having a firearm, conservative leaning gun rights groups seem rather silent.

I personally think the Second Amendment was ratified for a limited purpose that still has some bite (think of local police populated by local communities or woman or LGBT in the military).  The current view of an individual rights view developed over time and was probably in place as early as the Fourteenth Amendment.  So, I think there probably is a constitutional right to own firearms though the discussion on how self-defense as a whole is a lot more complicated is quite accurate.  And, the right (and the language of the Second Amendment helps here) also includes various regulations.  It is not absolute.

The chapters of free speech and the Internet will sting liberal leaning types (though as usual, I wish to say many liberals support a RKBA) more.  The author again notes in practice the right often favors white males more than others, including when regulations involving harassment and so forth are deemed inappropriate.  This includes things like revenge porn and harassment online.  Liberals will appreciate the section that notes that people concerned about free speech on campuses repeatedly ignore those that target left leaning speakers.

But, sacred cows like the breadth of the value of the "market place of ideas" are attacked as well.  I'm wary of the breadth of this argument at times, including when she notes that hate speech violates the principles of our nation (pro-Nazi speech has no "idea" unless it is one that goes against our basic values).  Stopping the march on Skokie is something I'm really wary about doing. The armed Charlottesville march is somewhat easier to address -- "peaceful assembly" (though this is not highlighted in the book) is after all right there in the amendment. Also, concern about a large possibly violent demonstration being in a certain location is reasonable. It surely seemed to be given the results. 

I continue to think that laws against obscenity generally are inappropriate though this would not stop limits on child pornography or revenge porn.  I might be wary about language that such and such material will cause "emotional distress" but a boyfriend who uses private pictures to gain revenge on an ex-girlfriend is not a general concern of mine.  I found, e.g., Eugene Volokh at his blog and his supporters excessive when concerned about efforts to address harassment in high schools and the like. Meanwhile, that blog never seemed to address free speech concerns involving abortion clinics (e.g., forced ideological messaging).  And, I probably would find some room for disagreement on regulating online speech with the author but at the very least the liability of Backpage and the like is strong enough that it worthy of the discussion provided.

The book therefore is a worthwhile read.

End of Life Decision-Making & Religious Liberty

In short, there is no reasonable ground for believing that Nancy Beth Cruzan has any personal interest in the perpetuation of what the State has decided is her life. As I have already suggested, it would be possible to hypothesize such an interest on the basis of theological or philosophical conjecture. But even to posit such a basis for the State's action is to condemn it. It is not within the province of secular government to circumscribe the liberties of the people by regulations designed wholly for he purpose of establishing a sectarian definition of life.

I have noted over the years that I (some might say this is from coming at it in a largely hypothetical way, not being a woman or potential parent) think abortion is in a key way a religious issue.  Ronald Dworkin was a notable advocate of this position though it arose in various contexts, including with women advocates involved.  And, in the current basis of constitutional abortion law, Planned Parenthood v. Casey, "conscience" is directly cited.  The connection between "conscience" and "religion" is not always clear, but a shall we say embryonic form of the religious liberty component of the First Amendment (and Fourteenth in Madison's failed attempt to include the states) included references to "equal rights of conscience" or the like.  At the time, "conscience" was basically seen as some form of the Christian religion.

Justice Stevens was the one justice who directly highlighted how abortion rights, including restraints that selectively burdened abortion per certain conscientious views, raised First Amendment concerns in this fashion (one other case did directly raise the issue, involving abstinence only education funding).  Rightly so in my view, both as a matter of sectarian laws and burdening free exercise.  One can find splits of some sort of religious nature in any given legal subject, but life and death questions of this nature have a special religious component, one that splits believers. It is telling to me that on both ends there are sacraments in the Catholic Church.  Marriage too has a religious component, which underlines the importance of individual liberty there.*

He also raised the issue in euthanasia situations though when that was directly at issue, he went along with the others in saying that at least to some extent laws limiting it were constitutional.  Counting noses suggested that an absolute bar might be more problematic though I am not aware of any later federal cases (it did arise in a few state cases) that directly addressed the matter.  Washington v. Glucksberg is the better known case, including because the plurality used it to put forth a restrictive view of substantive due process (the strongest view of the opinion was never really applied, particularly given Justice Kennedy's views on same sex rights) but a companion case (see link) did come out of New York. Which provides a segue.

The New York Medical Aid in Dying Act, dealing with a controversial subject that divides some usual allies, did not pass along with the first slew of "we are fully controlled by the Democrats" bills.  I do see a co-sponsor of the Senate version is my active young frosh senator, Sen. Biaggi.**  The tricky issues in these laws include when it can be applied, assistance by physicians if one is unable to do it yourself, safeguards of consent and so forth.  But, the matter clearly also has a religious competent, which is eloquently expressed in the signing statement of a recently passed New Jersey law.  The direct impetus of this entry is a temporary restraining order, after the law went into effect on August 1st.

The lawsuit says that the law, which does not require a physician to be involved if they are conscientiously opposed (see abortion), in part conflicts with the physician's religious liberty.  This is of a kind where contraceptive choice, I use that term advisedly, is argued to be problematic.  The debate on religious liberties here tends to be one-sided and this goes back to my opening, which has been a repeat player on this blog for years.  Religious liberty here is not merely a right wing thing.  The patient who wishes to carry out their own view of conscientious choice, matters here split since ancient times, ultimately has the strongest claim.

From the summary, some mere duty to send records or the like to the physician of the person's choice is not an infringement of liberty.  Doctors here have some minimal requirements to carry out patient wishes too.  Sounds weak.

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* As with other matters, and this will arise here, this does not mean it is free from regulation.  Freedom, before and after same sex marriage was protected, regarding private actors presiding over marriages does not mean -- before and after same sex marriage again -- discrimination in public accommodations in general was acceptable.

Some weighing of lines also will always occur here to some extent but that doesn't mean everything is up to regulation.  Overall, I think the viability line in this respect a fair one, if with tricky situations, especially to the degree it has a life/health of the pregnant woman proviso. "Viable" here might also factor in severely disabled fetuses.

** Sen. Biaggi has a special concern for sexual abuse, particularly from her own experiences, so the Child Victims Act is an emotional moment for her.  I am wary about an ability to bring claims from decades back (imagine child sexual abuse that occurred when one is ten and a case is brought when one is in their 40s), including given problems of memory and so forth. The legislation is a compromise though it has an open one year window.

I linked to a television interview with a friend/fellow legislator but a quick search does not bring up the specifics of her case.  It would be informative to get a snapshot of the problem though any number of others can tell their stories.  Such is the case with sexual abuse in the Catholic Church and elsewhere.  But, specific incidents are important since they put a public face on the problem.  See also, sexual harassment:

Imagine showing up to work only to have a co-worker tell you to get breast implants, touch your butt while telling you to “tighten up” and tell you not to adjust your exposed underwear because he was “enjoying himself.” Or to be subjected to name-calling like “dumb blonde,” repeated remarks about your appearance and being swatted on the butt with papers by a supervisor. Or even to have a supervisor pull your hair, rub lubricant on your arms and tell you to buy sexual paraphernalia.

A concern on margins can not stop us from dealing with such things.  Even if electing Trump in the minds of some is acceptable.  We have far to go.

Death Penalty Watch: Stephen Michael West [DEAD] and Dexter Johnson

ETA: The result here is a tad ironic and I'm glad even a conservative activist (who pops up repeatedly over the years in litigation) at least gives lip service to concerns about pain.  But, he couldn't resist to note that West caused more pain during his crimes  (this is something akin to the "better than Trump" standard; too low of a bar on its own).  The litigation, if we want to be all cynical, also helped to extend his life for years.

There is also that Alito anti-death penalty blame. Yes, there is a movement against the death penalty and one result is that fewer people (especially in Europe) want to aid and abet the process.  But, again, I am not sure how hard it really is to find alternative sources of the drugs in question.  (Assuming they are okay; all execution procedures have issues. This might lead to a gotcha akin to "yes, ideological based speech limits are wrong, no matter how you try to craft them." )  Can they not be made domestically?  Also, as multiple reporting noted, the alternative sources of drugs sought had various problems.

So, no, it was not wrong for the Obama Administration to stop the problematic inflow of such drugs. 

West [23] and Martin [17] left work at McDonalds in Lake City, Tennessee, on March 17 and went driving around and drinking in Martin’s car for several hours. They drove to the home of Sheila Romines, a classmate of Martin’s who had previously rejected his unwanted advances. At approximately 5:20 a.m. after Mr. Romines left for work, Martin knocked on the door with West standing nearby. When the door was opened, the two then made their way into the house. Between the hours of 6:00 a.m. and 8:30 a.m., Wanda and Sheila were brutally murdered. Sheila was raped before she was killed.

The rape/murder of two women (Sheila Romines was fifteen; Wanda was her mother) with "torture-type" wounds is not really a surprising death penalty call.  A standard principle still is that even in death penalty states you can find comparable crimes not resulting in a death sentence though there tends to be lots of variables involved.  West was sentenced to die in 1987, so we have another case of the troubled concept of executing people after decades of confinement.  Martin admitted to the murders though it should be noted that he was a minor so was not liable to die (the constitutional rule would come years later).

The summary linked above notes: "the trial judge did not allow the jury to hear a tape recording of Martin confessing to both murders while he was in custody at the jail. "  It also notes claims of trial counsel ineffectiveness, mitigating evidence such as a horrible childhood and psychological problems: "suffering from major depressive disorder with psychotic features, paranoid schizophrenia, and schizoaffective disorder." A recent argument against the execution focuses on his "severe mental illness" and the fact he did not personally commit the murders. There is also a report of a failed challenge to the lethal injection protocol (not surprising at this point given the state of the law there).

The fact he personally did not commit the murders -- let's grant this is true -- is not necessarily compelling though the jury might have been affected by hearing about it.  The long time in prison to me is a notable factor here, I continue to question the value and justice of executing someone in prison for three decades. The strongest claim appears to be his mental state, at least to warrant a commutation to life in prison.  The execution of someone in prison for so long because of involvement in a heinous crime, if not one of the few that would seem to be the "worst of the worst" by someone with his mental problems (toss in the due process concerns involving the trial as a sort of extra) would to be to me a summary of the problems here.

The governor did not commute his sentence and his final last minute appeal was basically a lost cause execution protocol claim that was denied without a written dissent.  A statement from a brief (again, can be found using the docket numbers on the final order) is sort of telling:

The contention that West seeks nothing more than to avoid his August 15, 2019 execution may find favor among those cynicism about the objectives of method of execution challenges has clouded their willingness/ability to look at the case before them, but is not what West seeks here.

Uh huh. The firing squad was offered as a readily available alternative but  as noted above the challenge failed. Relying on Justice Sotomayor's dissent to argue the majority opinion should not be applied too strictly underlines the desperation.  Then, it was a forlorn statement regarding him choosing electrocution, still allegedly unconstitutional, as an option but that his execution should still be stayed so his challenge can be heard. He was electrocuted, yes, that still being done in the 21st Century.

[Even if it didn't sound like a strong case, I continue to think at least one justice should in each execution case explain why the execution was correctly carried out and/or comment on the case.]  
So, he won or lost the execution lottery, decades after his crimes. The net value to justice here is yet again very unclear to me. 

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According to prosecutors, Johnson then shot Ngo in the head before murdering Aparece. It took investigators five days to figure out what happened but by the time trial rolled around, the state had linked Johnson to a slew of robberies and killings, including the slaying of a man standing at a pay phone and the murder of man sitting inside his car.

The core crime Dexter Johnson was sentenced to die for was the rape/ theft ($25 in cash and a credit card)/murder involving an Asian couple. But, there is reference to a spree that covered more ground. Johnson was eighteen at the time of the crime though was captured when he was nineteen (there was an intervening birthday). So, there was some mitigating factor there as to age.  The constitutional line by this point (2007) was eighteen though as noted in a past entry in this series there is some thought that the line should be twenty-one.  Either way, his age might be deemed a mitigating factor, if not one that is a total bar to execution.

The specific crime, like the first one, is of the sort that someone might deem appropriate for the death penalty but not necessarily a slam dunk. It gets easier if it was merely one part of a wider spree.  The age of the defendant complicates things.  The time on death row as these things go (around a decade) is not that long.  Johnson is only thirty-one, which is rather young.  The best hope for him is a claim of being intellectually disabled; if his status there is severe enough, he would be constitutionally barred from being executed.  The case is close enough that the often conservative court of appeals this week sent it back to the district court. Texas had issues with not carefully enough handling this issue in the past so can see some reason for concern.

So, we are set for another last minute drama, which drive the conservatives on the Supreme Court up the wall and is far from ideal.  But, overall, this would be a strong reason not to execute though there is often a lot of debate over being unable to firmly draw lines in marginal cases. [I ended my draft there, expecting the state to challenge the stay, but it did not. So, the execution is for now stayed.  As things go, this is not that long in.]

Jeffrey Epstein Commits Suicide ... oh well

In the march of "what else happened?!," the news yesterday was that arrested (maybe this time he would get real punishment!) Jeffrey Epstein -- "good! he didn't get bail!" -- committed suicide. He seemed to have tried before but his suicide watch was brief. The "oh well, just another victim of the system" takes are coming in. But, very rich defendants with friends in high places are not typical and this "oh well" doesn't quite wash. Conspiracy? Eh. But, that handwaving is too easy in this case. Plus, while investigations occur, this can't be allowed to close off a full true accounting. Epstein in no way committed his crimes alone.

Mets: Hey, What Can I Say?

The Nats blow late inning leads when they play the Mets. That is what they do now. The Mets designated sucker was left in long enough last night to blow a three run lead (including a wild pitch insurance run) and one more to lose the game. Conforto lost his shirt and Smith was part of the celebration on his scooter (he's hurt). Tonight ... well, Luis Guillorme tied the game with his first home run. Them going ahead was obligatory. And, Lugo again was out for a second in a one run game. Oh, the Braves lost, blowing a big lead late vs. the Marlins. They are having bullpen woes. Mets half game back in the Wild Card race with DeGrom next.

ETA: Sunday. DeGrom had a tough 1st, an error that looked to be his fault leading to three runs. He helped a rally with a bunt to later tie it but only went five. The bullpen gave up the lead and Diaz sealed the deal by giving up two. THIS time, the Braves closer did not blow a three run lead. But, two of three vs. rivals will do the trick if they are consistent about it.

Appeals court decision on Lehigh County Seal

After a district court who voiced its dislike of current law held this seal unconstitutional, the law changed some and the court of appeals upheld it. I think the law was unclear enough that a seal like that with various symbols might have been upheld anyway though some evidence the cross was added to honor Christians who founded the county (settlers came centuries ago; the seal is from the 1940s) made the lower court ruling unsurprising as well.

I think this is a fair reading of what five justices would do and the 1940s time period suggests Breyer might go along too. But, altering a seal is different from taking down a display, especially those just endorsed (like from a patriotic group) by the government. Changing a seal to be more modern should be less controversial. This is an official government seal which is also more ubiquitous than a single monument or display, especially one only up for a holiday. Again, the justices likely won't parse like this but it suggests all displays are not equal. A representation of a large county should honor all.

ETA: For whatever reason, these things tend not to explain, Roberts granted a temporary stay in favor of the government in a criminal case.

When The Men Were Gone

The preseason started with a Jets/Giants game so this based on a true story about a woman who coached in a Texas high school in WWII was well timed. The author was a sportswriter, coach and now educator so the character was appropriate. A town dealing with tragedies, not all involving WWII, was a major subplot. The real coach (I found this via a bit of online research) coached at a college so I guess the finale game is a dramatic creation.

Good book. I read a version with "P.S." material but it focused on the author. We get nearly nothing on the real person, even a photo, though I found more than one online. The author notes she fictionalized some material since various details were lost to history but again there is material. Various background biographical material is said to be based on real life. This might explain why some records are lost but you'd think articles and such ... oh well.

Peppermint

Jennifer Garner is only in her 40s so it's quite possible this can open up a second act (the director also helped Liam Neeson there), especially given her earlier action roles. The title is the ice cream her daughter (who has some spunk that you figure came from her mom even if she holds it down) ordered before being murdered along with her dad, ill advisedly tempted to cross the wrong person. The fix is in so the mom doesn't get justice for a few years. Garner is quite believable as an angel of vengeance though some thought her path was not made complicated enough. Eh, it did the trick. Touches on the power of social media etc. but Garner makes the movie. The supporting players are good enough to check the boxes.

Welcome to Marwen

I read the book and checked out (some of) the movie on DVD. Steve Carell again is excellent in a serious role and the animated reenactments of his imagined stories are well done. But, especially since it starts after the "town" is set up and all (curiously; they could have started earlier, the book provides his backstory and how he created the town), was not really interested in watching almost two hours (he had to be pressured to give a victim impact statement at the sentencing of his attackers and the film ends with him managing to do it). I'll try the documentary; this review is a bit too negative but interesting.

NSFW

I'm unsure how I survived, but sure did, before being online. For instance, how did I deal with not being able to look up pieces of trivia (always was someone attracted to such things)? Well, I read more magazines and (at times) books. Anyway, recently I checked out some videos at Porntube. It has a range in quality, including some pretty good story-lines. Some good acting, seriously. The mechanics of sex can only take you so far there [quality is duly noted] though yeah those who watch late nite Showtime type fare will find something called cock and penetration (except for on Japanese video where that was blocked). A bit addictive.

Not A Fan of Rep. Castro Tweeting Those Trump Donors

As noted here, even Citizens United supported disclosure laws (Doe v. Reed, involving a controversial referendum is even more on point). Disclosure is particularly about flags to deal with a form of legalized bribery but there are other reasons, including to see in general who is supporting a person or cause by means of large sums (my $5 for Gillibrand, e.g., is a lot less notable). When money is involved, however, there tends to be an overlap at any rate.

This response seems to flow to even mere Trump voters, but the people Rep. Castro (twin brother of the guy running for POTUS) listed big donors in his controversial tweet. As I said in comments in both places, I'm wary of this sort of thing. Searching a database is different than selecting some names and tweeting them. It is different when their member of Congress does it and in effect shames them for donating to Trump. I fear tit for tat. And, no, I'm wary of everyone knowing such and such bakery or whatever supports "x" candidate. At least on the level of tweets to so many people. I fear what it will do to their families and communities. I hope legislators don't make a habit of this though the good faith of the people who are complaining repeatedly are likely to leave something to be desired.

Mets ... is it time to believe?

The Mets started the second half well helped by a soft schedule but they won the two games vs. the Twins too. But, then hurt themselves by losing (in painful fashion) three of four vs. Wild Card (if the longshot brigade) competitor Giants. This seemed a come to earth moment but then basically (one time) didn't lose vs. scrubs. But, hey, the Phils lost two of three vs. the White Sox. Still, the teams are bad and the Mets' past foibles and limited (they HELPED a damn wild card competitor in one of their two moves!) trading deadline made me cynical.

They are now in the midst of a four game series vs. the Marlins (who at times are pesky) and then play (with a break with the Royals) playoff types. Cano is hurt again but guess they are ready: they got to .500 (and DeGrom got a win) and then came back (and Famalia of all people got a win with a clean inning) to sweep a DH (fans at field ecstatic). They are two games from the WC. Do I believe? Sigh. They still have to deal with multiple teams and one place puts their odds under 15% (well better than 1% as they were recently). They have a shot but in '15 they got multiple pieces at the deadline. In '16, they got a bat and later (guess still have time with waivers) a bullpen arm.

I'm just tired of the team having the same shit year after year. Even yesterday, the manager was like "Diaz is our closer" and used him in a four run game and then Lugo for two innings in a one run game. It's so much b.s. And, Cano gets hurt (again.) Just tired of it all. I see them ending well, but not quite, people accepting and hopeful for the future. It's tiring.

Gemma Arterton Generally Can't Do Wrong

It turns out that "When Cary Grant Introduced Timothy Leary to LSD" was part of a British series of a bunch of celebrity "moments" over time. Showtime had another episode, not as good (the other one was in large part basically a sort of LSD trip) but still worthwhile given the lead (who I saw in various things) with Marilyn Monroe. The snapshot of the filming of Some Like It Hot like the last episode overall gave a good sense of place and the other actors are good as well. Fun. The other one was more of a trip though.

SCOTUS Watch: Order Day etc.

ETA: Regarding the latest  rejection (on jurisdiction grounds basically since he is no longer an appellate judge) of ethical complaints on Kavanaugh: the House Judiciary Committee requested some records. Since some of the ethical complaints referenced alleged misstatements involving that time period, there is overlap.  It only touches upon part of the problem (including his sexual crimes and the slipshod nature of the confirmation process involving the FBI etc.), but it is a start.  The request also flagged the issue of ethical guidelines for judges and justices, a continuing concern.

There has been repeated concerns that the courts did not come up in the Democratic debates except in passing by Buttigieg:

[This is] the conversation that we have been having for the last 20 years. Of course, we need to get money out of politics, but when I propose the actual structural democratic reforms that might make a difference — end the Electoral College, amend the Constitution if necessary to clear up Citizens United, have DC actually be a state, and depoliticize the Supreme Court with structural reform — people look at me funny, as if this country was incapable of structural reform.

The piece argues the Dems have not done enough to address the structural reforms necessary to address our current situation. This isn't really surprising (even when Bernie Sanders wants to reform basic ways we do things he seems to want to do it within our existing system, even opposing changing the filibuster)  given we are a conservative country in that respect. Plus, change there is hard especially coming from insiders. Also, when we have so many horrible actors and policies, structure seems a bit indulgent.  "Let's defeat Trump."  But, why do we have the results we have now?

Since it is "Order Day," we can focus on the courts here and again there has been a lot of angst there.  It does to some degree fall on moderators, but the fact is that the courts enter into any number of issues covered. (If LGBT and other areas also not covered was addressed, same thing though abortion often is in this case too much seen as a judicial matter alone.)  Racism? Well, the courts have an important place in interpreting various questions there as well as addressing it in civil and criminal trials.

Dahlia Lithwick cries out the Dems need to talk about the courts. and though somewhat thin, suggests various issues. A basic thing is that presidents nominate, senators help vet and then confirm judges.  This is ultimately about who is in power and it is okay to say so.  Judges might be "umpires" [they aren't merely umpires, but let's pretend] but the party of the nominator seems to matter a lot.  Plus, yes, there is a responsibility for the actors here other than merely raw power.  With another judicial panel saying Judge Kavanaugh is no longer their responsibility, both the House (impeachment/oversight) and the Senate (oversight/addressing their confirmation power) have a role to play.

[An aside on that "no opinion on Brown thing.  I don't quite know what that is all about, but figure the concern is that once they state an opinion on that one ruling, Dems will have an open season to talk about others.  It is not that they find the opinion wrong or something. Conservatives these days are fine with accepting it and opposing affirmative action and use of race even in mild ways to uphold its legacy.  They are not "denialists" from what I can tell though that to some is the unsurprising implication. 

In that respect, it seems like over the top hard line tactics that is if anything counterproductive. If understandable given the people involved. OTOH, if the Dems are going to let it go, what stops them?  Why make it easy for them? It's a somewhat small thing at the end of the day but you need to draw a line somewhere.]

It is unclear how -- other than simply regaining control -- how the Dems are supposed to go after McConnell.  For good reasons, Dems ended the filibuster for judicial nominations under Obama. Dragging out lower tier nominations (such as district judges) is also  long term a dubious policy.  There might be some benefit to play hardball to have some role (see blue slips) in the process.  But, without the filibuster, Dems really don't have much power here though there are ways to slow things down, especially if they want to use non-judicial legislation as a means.  Specifics might be useful, but also a lot of this would be more up to the Senate.

So what does a presidential candidate talk about? The article talks about dark money, a repeat concern of Sen. Whitehouse.  As noted above, this underlines how other topics overlap with judicial matters.  There is a wariness to promise specific results in the courts (one law professor said just to promise moderate qualified judges) but this goes beyond that. There is also the more controversial talk of term limits and the packing.  Buttigieg has some Rube Goldberg device there. Ethical rules and sexual harassment is another potential area of discussion.  SCOTUS being most touchy. Finally, there might be ways to tinker in some fashion with jurisdiction.

Other than leaving certain things open, it is unsurprising that candidates do not want to address some of these things. OTOH, discussing the importance of the courts and the role of political actors in the system is fine.  Some concern for a smooth system of nomination/confirmation (citing Kavanaugh as an example of what not to do) would recognize this important area of executive power and responsibility.  Plus, the dark money in the nomination process is an area rich in opportunity.  Finally, one thing to talk about is openness. Supporting television or even audio (for opinion announcements and so forth) would be an easy thing to toss in.

One other issue that touches upon the importance of the courts and respects the importance of handling their effects is basically policy-making that respects the possibility of court review. Conservative courts will threaten progressive legislation.  Government action needs to factor this in and has over the years -- courts are only so powerful and tend to act in ways that at least partially leave open other options.  So U.S. v. Lopez allowed a slightly amended law to mostly address guns near schools as before. As with presidents having a long term plan on how to deal with congressional intransigence (including in nominations), this too is important. 

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These entries provide other material given the basic reality that summer orders -- though the border wall order shows stand-alone jokers do arise -- tend to be boring.  This does not warrant totally ignoring them any more than other order lists, since they remain an important part of their job. Thousands of cases are in some fashion handled each term even if only a fraction are given special attention (70 odd full opinions, various others sent back for application of those opinions and a few more given special notice by some justices, though perhaps via separate comment).

The average person knows little though the Supreme Court doesn't really help the situation much.  I again support use of specific cases here to help give a taste of the matters at hand or at least more FAQ type clarification on the website with a sample of that sort.  For instance, last time a bail denial provided a chance to do so, including in an inside the fold article in some publication.  It had some colorful facts as I noted last time.  Justice Sotomayor, the justice who was directly involved, also would have been a good person to do this given her overall concerns.

Last summer order day, there was a quirky bail request denied. This time: "The motion of petitioners to dispense with printing the joint appendix is granted."  We regularly have such housekeeping type orders in these order lists. As is usual, there is also a list of rehearings denied regarding lower court cases. And, there is a short list of attorney discipline orders.  The final scheduled summer order is August 23rd. There are also a few executions scheduled this month that I will address as they come.

(I missed it -- SCOTUSBlog, e.g., not concerned about such things -- but SCOTUS dropped media advisories on Friday regarding press seating for DACA and GLBT employment rights cases. They do this for a few high profile cases. Again, why isn't this televised?) 

Several Dead in Texan Shooting ... lots of thoughts and prayers to follow

ETA: The morning brought news of more carnage. Another shooting with at least ten dead (this time the shooter too) and over that many injured.

Employees at the nearby Hooters and Red Lobster told CNN they were safe and saw a lot of police, helicopters and people running around outside.

There is just something so modern day U.S.A. about some of the details of the latest mass shooting.  We also have multiple murders via shootings related to Walmart.  This has special force in these times:

A family reunification center has been set up at MacArthur Elementary School for families who might have been separated, Gomez said.

In El Paso, Texas.  While we hear more talk of "thoughts and prayers" and others who are saying a form of "fuck that," I think of my comments regarding prayer a few months back.  A piece:

The "thoughts and prayers" line has a stale nature to it but works best if done in a honest and forceful way.  Actually taking the time to think about things, including people, can matter. Once you think about someone, it is harder to avoid them and their interests. It's quite possible, obviously, but it is harder. We try not to think about certain things for that very reason. Thoughts can result in actions. Same with "prayers" -- it "earnest request" and so forth is taken seriously.  Doing so to a deity has special implications, obviously, but again that is not the only way prayer can work.

Empathy is important but real empathy is harder and includes action here. I have no special answers there.  I'm about to read about a fictional shooting. But, someone brought up the latest real ones.  One thing to do: support credible leadership not of the unfit hateful bigot variety. So one party is out.

The Vicar of Christ

My recent quartet of used Amazon purchases so far is going well though a recent version also has an intro by the author's old student, Justice Alito (anyway, it can be read free online at Amazon via "look in"). Our current pope might not be a former vet and Chief Justice (over half of the 750 pg. paperback covers the pope period) but does share the same name as well as some of the sentiments of the 1979 version.

I hoped for more SCOTUS content and think the pope content could have been cut some (especially some of the detail). Alito's intro (quite charming) notes the author spoke partially from experience, including as an academic officer during the Korean War. Overall, very readable with multiple points of view. The author had some legal writings but also a long fictional bio of Peter and a shorter WWII volume with some of the characters of this book as well. "So-called homosexual marriage" referenced before cell phones, Mr. Alito.

ETA: The pope section does go on too long and let's his power get to him too much. There is no sense in his previous roles that he went as far as he did here. It might in a fashion be a sign that a pope has too much power. But, putting that aside, given his very appointment is a bit of a stretch, this might have taken things too far dramatically as well.

Dems and Mets (Football Here!)

Another set of Democratic presidential debates with the whole field which I only "watched" via social media. Warren and Booker supposedly did well while Biden was decent but had his various tired Biden moments including shaking Harris' hand and calling her "kid." Usual Biden-stan comments such as worried about people going after a primary opponent since Trump is in the White House. So tiring. Can Biden just go? And, Sanders too. He got a few good bits in. But with liberal opposition, his purpose other than "hey these kids are stealing my message" is unclear to me. Too many also-rans will be in the next round.

The Mets are in a seven game winning streak vs. scrubs (Pirates/White Sox a combined 3-17) with Pirates and Marlins ahead. You beat who you face and they are two under and four out. Unlike 2015, when they picked up multiple pieces, it is not just about beating one team and in. Then, the big boys. They picked up Marcus Stroman (two prospects) and helped their WC competitor Phillies (starter starved) with Vargas (getting a minor league catcher). Mets fans can be all gung ho but I'm pissed. They could have kept Vargas and traded Wheeler (multiple suitors; would have received multiple pieces). Keep him for maybe a draft pick? Plus, they made no other trades or pick-ups. One deadline this time.