Erotic Manuscript

Other than sports, it was a fairly dull television weekend for me personally but this soft porn flick was on last night. Also available on FIOS Showtime on demand for free (for those who have it), it isn't up there plot-wise even per the looser standard of this genre. The notable thing is that the scenes highlight black/white biracial sex. The usually white (with some exceptions) focus in the standard soft porn late nite rotation alone makes this notable.

SCOTUS Watch

On September 27, 2018, Dr. Ford testified about Brett Kavanaugh sexually assaulting her as a teenager. Other allegations were made, including one that recently was reported via a new book involving him thrusting his penis at a woman in college.  A major issue here was the limited nature of both the FBI investigation and hearing set up to directly address this issue. For instance, Sen. Harris' recent call for a House investigation flagged the FBI issue.  With so much to cover, this should not be overlooked.  Both senators and executive officials violated their constitutional oath here. The sham she said/he ranted here was a travesty. 

Both were blatant deficiencies in the confirmation process for a key justice (or any justice for that matter).  We apparently can't do this right even at this stage.  Kavanaugh's ranting was so bad it led previous supporters such as John Paul Stevens to publicly state he should not be on the Court.  This was apparent to many of us even beforehand and statements in his direct testimony that at the very best were misleading has been raised as possible impeachment material. One can imagine the anger many women (including reporters and law professors) have here. It is so bad that questions regarding financial issues (baseball tickets and the like) are something of an also ran though that too should be covered. The whole Kennedy's son back in the day (over ten years ago) involved in Trump banking to me is not a thing though can see why is appears bad.  So fully report that.

There were various options for this key seat.  I favored Judge Amy Coney-Barrett from the short list though she is said to be the RBG seat option as well as coming off as too professor-like for Trump.  Also saw a bit where her mild remarks on judicial independence might sell wrong. Kavanaugh has a history of being a Republican flunky, so I can see why people liked him. His judicial record is standard though he has a sort of tic akin to Kennedy in a fashion to want to explain how fair he really is. And, no the opposition was not just because of Trump.  Gorsuch's seat was stolen, but other than being an asshole, he was opposed based on his record (and that whole seat thing).  A year later with the first full term of Trump coming up, we should not forget.

Investigations must continue.  (Yes, the video that came up when doing a Youtube search to insert a video has a Sanders thing.)

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In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial

It was suggested (unclear how true it is) that if there was a private ballot that twenty or more Republicans (if all Democrats joined in, that would be removal)  would vote to remove Trump in an impeachment trial. The Constitution says that one fifth of those present in each house can call for a recorded vote on any question.  But, on something of this magnitude (as compared to some lower court nominee), a recorded vote would be deemed necessary.  I guess after Merrick Garland and so on, we need to say old rules are flexible (let's call it the "Moscow Mitch" Rule), but  doubtful a secret vote would be deemed appropriate. Also, some true believers would likely challenge it via that 1/5 rule.  I'm game to test this with an actual trial.

The basic point here is that there are explicit provisions in the Constitution that furthers public government, but it also is a matter of norms.  The Bill of Rights explicitly says criminal trials are public for the benefit of the accused, which in a narrow sense might be interpreted to mean they could waive it.  But, public trials are protected basically as a public service, the various interests suggested in the various opinions when the right of public access to criminal trials was protected with even the Ninth Amendment popping up.  Not just for the media [serving as their agents in theory] but for the public at large.

The interest of public access applies to court of appeals as well and the Supreme Court has slowly come to recognize the full possibilities here. Back in the 1990s, I could only obtain even Supreme Court opinions from a few libraries, and then in bound copies.  Now, even lower court opinions from back in the day (if not all of them) can be accessed online.  I first listened to excerpts of a few arguments via Peter Irons' collections, first on audio tapes.  Now, oral arguments (if not opinion announcements) are accessible at the Supreme Court's own website.  And, we have Twitter, which added to my ongoing 2019 execution series. 

The House Judiciary Committee, sort of lost in the news, had a hearing on public access to the courts.  Appropriately, we have not only video online but access to the written testimony of multiple witnesses.  For example, the Chief Justice of the Michigan Supreme Court (and sister of a West Wing actress) submitted a letter strongly supporting access, including video. And, along with the Brits (as seen in the big Brexit litigation) and Canada (and probably other nations), many state supreme courts have video.  Noting some possible concern with certain trials (if the defendants were present), such courts provide clear evidence that video works okay.  Their judges aren't just on video to promote books.

One person now in entertainment television noted that past experience in the legal field (including in a same sex marriage case) gave special insights to the value of full access.  This includes video helping to advance trust in the system.  At least one legal reporter argued that a right to public trial in the 21st Century clearly involves audio and video.  I would add my usual bit on the value of including opinion announcements and video of other non-oral argument material to educate the public on what the courts do.  Concern for things like playing to the camera -- is that a problem where cameras exist? -- seems overblown, especially with so many oral arguments done by veterans who would have some strong incentive not to antagonize. Plus, some of that already has occurred, though often by the justices.

The issue of judicial ethics (including the now optional rules for justices) is quite important for the public respect of the courts.  The handling of the Garland nomination and the clusterfuck of the Kavanaugh nomination (rightly) taints the institution.  I'm not ready to move on in that regard. The concern here was public access.  With direct public access only available as a whole for a few minutes, video and audio is key.  As are transcripts and the PACER system was discussed there as well.  I have seen some concern for the fees (now the general public has $15 per quarter fee waived; that will be doubled -- that would cover looking a few cases, depending on the page count).

Did not watch the hearing but one final thing I would cover is that the Supreme Court probably can improve public access to their own website. It has some good things, including the docket search function, which provides access to various briefs.  (SCOTUSBlog case pages are very helpful here as well, providing a link to the opinion below.)   There is also a phone number to find out if an opinion day is likely (though they don't ahead of time actually tell you what opinions, sort of a cliffhanger).  But, I think easier access can be provided (clearer "case pages" ala Oyez or SCOTUSBlog can serve as a model).  Also, more material on the Supreme Court such as a basic twenty minute video or visual look at the Supreme Court itself could be provided.

Certain justices in particular are concerned with educating the public with Justice Sotomayor a leading voice there (with special attention to children).  Justice Souter also has bemoaned the lack of civics education (I never had a civics class in school).  Lower courts have done a variety of things to help educate the public.  The Supreme Court can as well.

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The First Monday in October opening of the '18 term is approaching and the "long conference" is scheduled tomorrow to deal with the outstanding cases.  The first full term (the Dr. Ford sham hearing pushing Kavanaugh's confirmation back a bit) with two Trump justices will then begin next week.  It is a moment of shame and time for righteous anger.

Sports Update

Brewers were a save from being tied with for the division lead with one game left but their "can't lose" September ended with them swept. So, wild card. Dom Smith came back to end the Mets season with a come from behind three run homer in extras. Sure. Phils managed to end .500. Pete Alonso has the rookie home run record. Way to go, Polar Bear. KC sucked, but they have the AL home run record guy, so there's that. Detroit/White Sox only had to play 161, so lost one less game. Go Twins and Braves. Ha ha.

Messy game (eight turnovers, at times almost trading them), but Giants rookie QB is now 2-0; bit of a test next: Vikings. No win Jets with a bye. TB came back from losing to the Giants by missing a short FG by scoring over 50 points and beating the Rams. Sure. Bills defense great. Offense, not so much, so Pats beat them in a low scoring affair. Various end of the game excitement from Thursday on. Lot of back-up/new QBs.

Playoffs Set Except for Seeding [Mets Out]

The Mets will win around 85 games this season, which is fine in raw numbers though the Brewers late burst (Cubs/Phils collapsed, Diamondbacks earlier being the last of a bunch of wild card wannabees falling out of it) made it not enough even if they had a few more wins. The Indians (helped by the Mets sweep) lost out even with over 90 wins.

They also have a suitable replacement (Stroman) if Wheeler leaves by free agency though I would have liked to get something for him other than maybe a pick. After a bit of a normal start, DeGrom also looks to be Cy Young again. We also saw some young stars though the SS took time to get into defensive shape. This was part of a variety of issues though Diaz/Famalia was the most blatant. I say stick with Lugo in the pen. Goals: stay around .500 at the All Star Break; your strong second half habits might be enough there.

Many want Mickey Callaway to go and though he made some bad calls (and annoying parrots upper management b.s.), the team lost for other reasons and came back with a strong second half. So, unless they can get a good replacement, "eh" to giving up on that guy.

TV Watch

I watched a few new series and was not overly impressed. All Rise, one of the new legal dramas, seemed promising, but had too much stupid stuff (a bailiff clueing the defense on video testimony? the judge engaging with the defendant after the trial? an opening with a guard snapping and pulling his gun in the court room? smh). The first episode of the new woman p.i. (based on a graphic novel) show Stumptown was okay. So it goes. So many shows out there, including on special platforms. Unlike back in the day, not really into them. John Oliver's show did (rightly; he has great writers) win an Emmy. So, did watch one there.

The Second Founding: How the Civil War and Reconstruction Remade the Constitution

The list of books to read to understanding our constitutional system before Stolen Seat Guy's book is legion, but this might be on the short list. I know the material so it isn't novel, but a quick summary like this still is often helpful even for me. He has a longer work on Reconstruction, but this is a good summary of the times and amendments, especially for the general reader. High schools should distribute this book.

It reminds us of the possible open-ended understanding, which as he notes in the conclusion can be much wider applied. It strikes me, e.g., that the Civil Rights Cases are actually still good law. And, things like a right to education, to vote and protection by the government (long seen as a privilege of citizenship) can be broadly protected by federal law, even if the courts alone might not provide protection. But, the enforcement clauses suggested Congress was thought to be the primary security in a basic way, having an open-ended discretion given broad terms like "privileges or immunities" to do so. The future is still open here.

Legal Snapsot: Bowers v. Hardwick

The benefits of marriage can inure to individuals outside the traditional marital relationship. For some, the sexual activity in question here serves the same purpose as the intimacy of marriage.

Bowers v. Hardwick is a mid-1980s Supreme Court opinion that by a 5-4 vote answered the question whether "the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy."  Lawrence v. Texas less than twenty years later decided 6-3 (Rehnquist/Stevens held their ground on each side; O'Connor did not though rested on equal protection, the law only applying to homosexual sodomy) went the other way.  This time, it more broadly protected intimate association as a liberty interest.

The opening quote is from the lower court ruling that protected the behavior. (It is one of various cites that can suggest the seeds of the idea of same sex marriage did not arise -- to cite Justice Alito -- later than cell phones.)  It is an interesting opinion.  The first step was to hold that Michael Hardwick (who died of AIDS related illness in the early 1990s) had a claim. He was arrested but his prosecution was put in abeyance.  The opinion by written by a civil rights stalwart (Frank Johnson) held:

The past arrest of Hardwick, combined with the continuing resolve on the part of the State to enforce the sodomy statute against homosexuals and the authenticity of Hardwick's desire to engage in the proscribed activity in the future, leads us to agree with the district court that Hardwick has standing to bring this lawsuit.

The arrest is key here when addressing the second issue (which the Supreme Court did not address in order to answer the wider question): did an earlier summary affirmance  of a rejection of a gay rights claim block relief here?  See also, the idea that something like that happened regarding an even earlier case involving same sex marriage. The opinion cited two factors:

Courts seeking to identify the issues governed by a summary affirmance should examine the issues necessarily decided in reaching the result as well as the issues mentioned in the jurisdictional statement.

A "jurisdictional statement is the section of an appellate brief that asserts the basis of appealability and the suitability of the court to hear the claim."  It seems to me that an argument is just that and it is up to the court to determine the basis of the opinion.  The opinion here argued that the previous case very well might have been rejected by the Supreme Court on narrow grounds. Also, multiple opinions since then suggested that the question was still open.  The Supreme Court in its ultimate decision pointed to two footnotes covered in this discussion and said that they held past cases "did not reach so far."   But, they really said that the matter was not settled.  This would be the first time it would substantively address a constitutional claim resting on sexual relations.  Later, as I myself argued here, the early summary dismissal of a same sex marriage claim was overtaken by events -- one factor here was changing law. And, at the very least, by 2015, it was no longer "not a substantial federal question."

The dissenting judge read the matter the other way, which might have been possible, especially if one wanted to avoid deciding the underlining question.  The other judges went on.  Ultimately, the Supreme Court made quick work of the constitutional question since it seemed "facetious" to think cases involving family matters ultimately covered this conduct, especially with it being historically criminalized.  A case cited protecting possession of obscenity in the home was framed as a First Amendment case.  That just led a need for rational basis, which was satisfied by morality.

The lower court and four justices took things more seriously.  The lower court expanded their view.  A range of cases protected a right of privacy dealing with intimate matters (it cited a lower court opinion involving breastfeeding and various Supreme Court rulings) were cited.  Later, marriage was argued to be particularly about procreation. But, the conversation here years back was more open-ended: the "marital relationship is also significant because of the unsurpassed opportunity for mutual support and self-expression that it provides." Cases already protected non-procreative sex, including for the unmarried.  Homosexual conduct fits into the wider whole here.  It is far from "facetious."

Stanley v. Georgia was not just a First Amendment case; it specifically cited a right of privacy, including a famous passage in a Fourth Amendment case.  A case involving family members living together reaffirmed the point.  There was something about the home that required a stronger state interest; it wasn't just a First Amendment case.  Justice Blackmun in his own dissent similarly looked at the case in such a two-step fashion, adding a quote in that second case involving looking at the wider meaning of the protection.  This would help provide a wider protection of private activities and the "family" in particular. 

The lower court overall did a good job showing how same sex sexual relations fit into a wider whole of constitutional liberty.  This was not just about certain types of sexual acts. This was referenced during the Supreme Court oral argument though the matter was not pressed.  What is there about "sodomy" in particular [Stevens cited an old case that held state law didn't cover lesbian relations] that was immoral as compared to let's say two gay people holding hands?  Something that even today some might not want to do in certain places.

The law covered heterosexual sodomy but the government granted that was protected by previous opinions.  The Supreme Court's citation of historical practice would seem to need to deal with this because until recent decades such laws making it a crime were on the books.  They might not have been enforced [Michael Hardwick probably was singled out, vice crimes regularly arbitrarily applied], but that wasn't the issue here.  The Supreme Court avoided that by simply treating the case as a narrow matter. Bad pool and perhaps coming off as the very "choice of values" that the Supreme Court was supposed to try to avoid.  It came out later the Attorney General Bowers was in the midst of a long affair (adultery itself a criminal act) that also involved "sodomy."  Lawrence v. Texas cited history to provided nuance to the enforcement of sex crimes.  It also has been shown that discriminatory motives involving stereotypical sex roles were involved.  Bare references to "morality" here hides more than it reveals. 

The lower court opinion cited the Ninth Amendment though the Supreme Court noted in a footnote that it wasn't raised.  Justice Blackmun argued that procedurally all such claims that could be used to dismiss (including equal protection, which was a basis of Stevens' dissent) were available. This would include the Eighth Amendment, which Justice Powell's brief concurrence left open as a possible ground in the case of an actual prosecution and sentence of suitable duration.  It is unclear how broadly he would take that -- Lawrence v. Texas involved a fine but implications of a conviction was broad, including as applied to such things as custody. And, penal sanctions were applied in various cases.

Ultimately, the claims here were premature and handed down before the justices were ready for them.  Legal and societal developments, including in state courts, allowed the Supreme Court to change its mind in 2003.  The material was available earlier.  A recent case referenced a right to intimate association based on a "deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs, but also distinctively personal aspects of one's life."  Friends and lovers could be covered.  Non-procreational sex was protected.  Why?  Merely to avoid pregnancy? Well, the cases referenced an open-ended right to privacy.  And, concerns about equality and homosexuals were addressed by a few justices.  

[A heterosexual couple was also involved in the case, but as with attempts to bring in a couple whose relationship was said to be threatened because of a ban of contraceptive use or abortion, they were held not to have standing.  As to arguments that health interests were involved, the claim was more open-ended -- morality -- and the purposes were clearly not that. A narrow law banning certain types of male sexual relations might have a better shot though in practice likely counterproductive. The same would be true for prostitution. But, the state was not granting the right of two women to commit the acts.] 

The case could have been a first step, especially if the specifics were highlighted. There was evidence he was targeted in a discriminatory fashion.  He was having sex in private and when asked for an actual prosecution, the attorney general could only cite an appellate case from the 1930s.  The government didn't even want to prosecute, holding the case in abeyance and leaving open a chance to arrest him in the future.  In practice, this was a path to arbitrary prosecution and persecution.  The case was also a criminal matter though a wider claim of constitutional protection was sought.  But, there was probably room to rule narrowly as Justice Powell wished.  Or cite him not being prosecuted, suggesting his rights were not truly harmed.  This might leave time for more complicated issues to develop.

An interesting snapshot in time. Where are they now alert: Justice Powell's "conservative clerk" later became a federal judge.  Hardwick's advocate, Laurence Tribe, is still out there advocating things.  Michael Bowers later was seen as a bit of a hypocrite but he did eventually come around on the issue of gay rights. 

Execution Watch: Robert Sparks

And Also: Mets finally had a laugher vs. Marlins, but unfortunately Brewers scored six in the first before they even began. Bye bye.

My effort to address each person scheduled for execution (not all of whom were executed) continues and is starting to get a tad depressing. A tad. Looking into the latest, we have this summary:

Robert Sparks was deep in the throes of a psychotic break at the time of his crimes – that is not disputed. He was hearing voices; he thought his wife was trying to poison him. He stabbed her and his two stepsons to death and raped his two stepdaughters, but he felt he'd be exonerated. Instead he was sentenced to death in 2008 in one of the most emotionally charged trials in the history of Dallas County. Now, his execution date approaches on Wednesday, Sept. 25.

So, the crimes are clearly horrible but is execution the appropriate path, especially since claims of deterrence or incapacitation [consider someone who murdered in prison] clashes with the reality that only a few places have the death penalty. And, even they repeatedly only use is sparingly.  The article noted: "Claiming insanity isn't a good strategy to overturn a death sentence; by law, defendants have to be not merely mentally ill, but uncomprehending of what is happening to them."

Should be. As one summary notes: "Sparks has also been diagnosed with schizoaffective disorder, paranoid delusions, and anti-social disorder."  These are not people we want on the outside, but killing a few of them to me is not good constitutional policy.  The inability to do a frontal attack on such grounds, however, leads to trying weaker arguments:

That claim is currently in front of the U.S. Supreme Court, along with one about how a bailiff’s courtroom attire may have biased the jury. During the punishment phase of trial — when jurors decided on whether Sparks deserved to die by lethal injection — one of the bailiffs wore a necktie with an image of a syringe on it.

Sotomayor, in another solo "this is troubling but not going to dissent" statement, flagged this as troubling behavior.  Also, there is an argument being made that an expert provided misleading testimony regarding his future dangerousness.  The rejoinder is that that was properly covered in cross examination.  The crime was about a decade ago and he is now in his forties. He should continue to be detained. Execution would be executing a mentally impaired person.  That's wrong.

He was executed apparently without a hitch.  

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Under the changes, aggravated murder only applies to terrorist attacks that kill two or more people, murders of children under 14 and law enforcement officers, and killings by prisoners who’ve already been convicted of murder.

Meanwhile, in death penalty news, Oregon (Democrats control) restricted the death penalty, a total ban requiring a ballot measure. The governor, after stating she was open to the idea, rejected calls to bring the legislature back into session to weaken the restrictions.  One concern was that the new measures would be retroactive in scope so that those already sentenced to die might have their death sentenced commuted.  This was seen by some as a sign, a test, of how much Democrats would stick to criminal justice reform measures.

Since the 1970s, two people were executed, both so-called "volunteers."  There are thirty-five people on death row, so this is not trivial matter on some level.  Oregon historically was on the low side (link provides data) but before the first wave of anti-death penalty statement (1960s), it did execute some people.  When we are talking two people (both in 1990s), however, it might be time to just call it a day.  As to the usual hard cases talk, again, what does all the places without a death penalty do? 

Mets Alive

Nats in but Brewers' magic number is 1. Mets tied it in the 9th and won in extras. So, if they go 5-0 and the Brewers go 0-5 [granting a Cubs loss], there will be a one game playoff for the playoffs. Phils eliminated; Cubs lost their seventh in the row (to the Pirates who were in a nine game losing streak); now tied with the Mets. Three teams fight on in AL for two slots.

"latest defilement of his oath of office"

A formal impeachment process would, if nothing else, give new weight to Democratic claims when they go to court to enforce subpoenas or pry loose documents the administration is trying to hide. It would show that Democrats are serious when they say that Trump’s behavior is intolerable, and potentially allow them to seize control of the day-to-day narrative of this rancid presidency. Trump does not want to be impeached — a Monday Politico headline says, “Trump’s team is trying to stop impeachment before it starts.” It’s hard to imagine why any Dem leader would assist them.

Yeah. I was for an "impeachment inquiry" without putting a thumb on the scales, leaving things open as things changed. Now, moving to impeachment itself. Dahlia Lithwick, who some anti-Trump types against impeachment ignore here, also noted how it is key to show actions have some consequences. Plus, a special Trumpian f the press moment.

ETA: Pelosi (after a bunch of blather) on Tuesday officially announced an "impeachment inquiry," which is a key moment, pushed in part by more on the fence representatives (including John Lewis) going to the impeachment side.

Sports Update (Daniel Jones Era Begins for NYG)

Jets got two defensive TDs vs. Pats, but I'll take it with a third string QB and Pats giving up three total points in two games before that. OTOH, Jets offense scored zip (30-14). Bills 3-0 and face Pats next. Another day, another two back-ups (Panthers/Giants). Both did well though key Giants player hurt. Giants defense lax in first half. Won on missed FG at buzzer. 32-31. TB had a chance to try (with two missed XPs) a play in end zone but didn't.

Baseball-wise, Cubs collapsing (Cards clinch playoffs), Astros clinch division and Mets 4.5 back and hoping Nats collapse (vs. Phils and Indians). Brewers a game better and have easier competition. Try winning earlier in season. AL Wild Card and seeding still open.

ETA: Monday: Mets lost, Nats won. Elimination number now 2.

TV Update

Other than finding Janice (Chandler's on/off gf) and Susan (Ross' replacement) charming in their own ways, one bit on S1 of Friends: yeah the women are hot. Snapshot: Rachel in tube socks and a Catholic school girl dress in the one where Marcel gets away. When Rachel tells Monica about the monkey pooping in her shoe, Monica looks great. And, Phoebe (who looks rather tall; she's listed at 5'8) looks good generally. She is especially cute when she smiles. Amusing/cute bits in the two parter with cameos from Mad About You (including Ursula). Trivia: "Fran" actress eventually became a therapist.

Republicans vs. Voting

So far five states (the mild change in Michigan seems trivial) cancelled Republican presidential primaries in 2020 even though there are three other Republican nominees. I saw one estimate that they might receive 15% of the vote or something though I can see more in certain states. Perhaps, this is a concern here. The whole enterprise is blatantly anti-democratic with dubious symbolism though it helps the Trump loyalty caucus. This sort of thing is a violation of our values and should be hung around their necks as a partisan issue. It is a piece with other anti-democratic moves, which of course should also be highlighted.

Trump is Horrible; Biden is Still Lame

A trans author in an op-ed today expressed her respect of Biden but noted of his appearance at a LGBTQ event: "I’m so sorry to have to say this — he appeared, once again, to be phoning it in." Yes. He's a lousy choice. This is true even if the latest impeachment offense apparently regarding his son and Ukraine (old news though the whistleblower reveal provides new material that has a "smoking gun" quality or at least something easy to grasp on to) should not turn into a "sketchy Biden" story. Full story to be seen.

Since no one reads this, I will add this. Whoever the nominee will be, will be targeted. But, yes, avoiding old hands with baggage is often the strategy for presidential nominations. And, yes, this is impeachment worthy and Pelosi soft-pedaling it with talk of "accountability" and "hopes" that Republicans will join is lame. "McConnell is mean" isn't the answer either. If you think that is wrong, again, start criticizing people you usually praise.

TV Update

With NYPL lacking S1 of Friends, bought it on Ebay for about $5. Not too many extras (one producer commentary episode). A bit of early installment weirdness with a different Carol (the actress who plays a mom on Shake it Up) and a view of the kitchen area in Chandler/Joey's apartment. A lot of info pops up in episode 2. Took a while for the show to fully click but familiar from the start. DVDs have additional episode footage.

In late nite soft porn news, Naughty Namaste was on last night. Not one you can download on free on demand (FIOS) and appears not to have much of a story. Caught a pretty good girl on girl scene. In hanging in to the end news, things worked out so that the Mets are three back [3.5 after Thursday] in the Wild Card race with 10 games to play.

ETA: I recall thinking that it took time for Friends to click but first season is pretty good too. But, it is true that once Monica/Chandler move in together, it starts to go downhill. Later episodes are okay but not as fresh. Everyone also seems older. Bit off on this series.

Our Juniors Remind Us About Environmental Responsibilities

Please save your praise, we don’t want it. Don’t invite us here to tell us how inspiring we are without doing anything about it. It doesn’t lead to anything.

Greta Thunberg is a 16 year old climate activist with Asperger´s and is one of the young witnesses speaking in front of Congress today to address climate change.  She also skipped a general opening statement, submitting a climate report so that they would listen to the science.  Another witness is a twenty year old activist from White Plains, NY (I have family there).  There also will be a "climate strike" on Friday and students at NYC schools have been given the okay to walk out to take part.

Meanwhile, Trump plans to revoke California's stronger Clear Air standards, a move that is bad policy and likely illegal.  What else is new?  One of the witnesses (Vic Barrett) is part of another lawsuit (if for years now) pushing the government to do more for climate change.  The lawsuit argues that the government violated the youths' rights by encouraging and allowing activities that significantly harmed their right to life and liberty, and sought the government to adopt methods for reducing greenhouse gas emissions.  The Supreme Court at one point let it continue though flagged that the claims are rather open-ended.

I could not open the link to the opinion, but the Slate article referencing a lower court opinion suggests why:

I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society. Just as marriage is the foundation of the family, a stable climate system is quite literally the foundation of society, without which there would be neither civilization nor progress. … To hold otherwise would be to say that the Constitution affords no protection against a government’s knowing decision to poison the air its citizens breathe or the water its citizens drink.

The recognition that same sex marriage is part of the right to marry was a big move, but the right to marry itself has been around for quite some time.  Marriage includes both positive (benefits) and negative liberties (spousal immunity).  The claim here would entail positive rights, which is generally seen as something not obtainable in court. (I don't know exactly what they are aiming for here, but it seems rather open-ended.)  Consider this statement from Brown v. Board of Education:

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

Education is a basic component of good citizenship, but what this amounts to as a matter of legal rights is unclear. State constitutions do provide some right to a basic education, but the US Supreme Court rejected an equal rights claim when claimants argued school funding by local district property taxes violated the Constitution. Justice Marshall in dissent flagged that education is a fundamental right.  This was of some importance in Plyler v. Doe, when Texas tried to totally keep undocumented children out. The "knowing decision" part is also cited by the article:

Citing the public trust doctrine, an ancient understanding of the responsibility of governments that dates back to Roman times, [Judge] Aiken agreed with the plaintiffs that the aggregate actions and inactions of the government on climate change have “so profoundly damaged our home planet that they threaten plaintiffs’ fundamental constitutional rights to life and liberty.”

It would be interesting to read the full opinion. The litigation is ongoing, so it is the apparent broad reach is somewhat of academic interest.  I have seen some argue that there is basically a Ninth Amendment right to a safe environment.  This need not mean that the right is enforceable without legislative enabling acts, but it does fit with the Preamble of the Constitution in general.  Justice Douglas once noted:

There is, of course, not a word in the Constitution, unlike many modern constitutions, concerning the right of the people to education or to work or to recreation by swimming or otherwise. Those rights, like the right to pure air and pure water, may well be rights "retained by the people" under the Ninth Amendment. May the people vote them down, as well as up?

The majority upheld the closing of pools even though there appeared to be a discriminatory purpose (see, e.g., Justice White's dissent).  Douglas might be unnecessarily modest here.  He thought the Constitution did say "a word" in some fashion about the right of privacy, even if it did not in actual words.  It is quite possible that the right of education also exists as a necessary aspect of being a good citizen with third party effects (e.g., uneducated jurors would deprive people of due process, perhaps).  On some level, you can say the same thing about the right to a good environment.

The stronger claim might be to look at the laws in place and argue that they in some fashion protect the environment and provide positive duties to the government.  The litigation more likely appears to be a means to provide pressure to obtain governmental action (and perhaps discovery).  As noted, state and other nation constitutional provisions in this context can be found. But, the U.S. Constitution is somewhat thin ground as a matter of rights. On the other hand, like with education, it is easier to find authority and duty to act. 

American Indians and the Law

The small volume (bit over 200 pages) is about ten years old, but don't think much changed. It isn't comprehensive but is a good thumbnail intro to an area of the law I wish to know more about. The complexities of the law now include the power of a tribe to prosecute another Indian (including of a different tribe) but not non-Indian (a key case involved an attack of a tribal police officer). Book is a bit one-sided; figure there is a "dark side" on their end too. But, worthwhile overall.

One idea floated recently was representation in the U.S. Senate; total tribal population is more than many states.  There was some talk about the Cherokee Nation sending a (non-voting) delegate to the House (akin to Puerto Rico) pursuant to treaty rights.  The article notes the tribe has over four hundred enrolled members, a sizable fraction of the 6.8 million Native American population (by one count).  There are over five hundred tribes, but only a few have a sizable population (see a 2000 chart here, with only a handful over 100K).  Some unified grouping would seem most practical here, especially to handle prosecutions etc.

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

The U.S. Constitution is fairly thin when it comes to Native American law, the Census Clause referenced counting Indians taxed and Indians a separate category in the Commerce Clause. Toss in the Treaty Clause (again suggesting they are in some fashion independent sovereigns, different from states), that is about it.  The power of naturalization allowed Congress to later make them all American citizens (raising some interesting questions: the Bill of Rights were not applied to tribes though a statutory law incorporated many of them, not including the Establishment Clause, Second Amendment or the right to counsel ... also the "dual sovereigns" principle applies for double jeopardy purposes).  Seems limited overall.

But, as the book notes, the tribes come off less well than the sovereign implications of the text suggests.  Early on, it was accepted that they were junior level sovereigns since they were part of the U.S. -- so they couldn't negotiate with foreign powers or alienate their land.  Then, shortly after the Civil War, Congress decided simply to stop negotiating treaties.  Still, Congress claimed broad power over the tribes, including to pass general criminal law over them. The Commerce Clause in general has been stretched but not that much.  Justice Thomas has some reason to cry foul.  OTOH, he did go along with Seminole Tribe of Florida v. Florida, one of the dubious sovereign immunity cases that here interfered with congressional power over tribes.

The book discusses how Native American sovereignty is limited when it interferes with non-Native interests. Thus, over the years, much tribal lands was sold to non-Indians.  Tribes had some power to regulate here but less  so regarding the non-Indians themselves. Taxing non-Indians also is complicated.  A concern here is that the non-Indians do not make policy but if a person attacks a tribal member, e.g., the non-Indian is there by choice. Anyway, if tribes are given more authority, there might very well be a way to given permanent non-tribal residents some sort of political power.  Finally, for something like a right to counsel, if there is a concern that a tribe does not have the funds, there should be an ability to provide federal funding.  It seems dubious not to include that among the rights. The book does not go into detail there.

Federal law also in various ways respects the needs of tribal members such as the exemption in the civil rights law to allow tribes to have official religious ceremonies and provide exemptions (such as peyote) to general criminal laws. This respects the wrongs of history such as stopping "ghost dances" or denying parents the right to raise their children in tribal cultural traditions. The "dying Indian" concept (the idea tribes would eventually die off) is discussed.  Relatedly, a 1970s law addressed the policy of taking children away from tribes by giving tribes the preference in adoptions. This led to a dispute that occurred after the writing of the book.  The book also discusses a law honoring tribal human remains.  OTOH, cultural heritage is not always secured since something like a tribal trademark (Cleveland Indians) does not violate any recognized interest.

There are many issues that arise here with millions of people involved, including concerns about domestic violence and social welfare. Like the interests of territorial residents, though with more political power (they count as state citizens, so can vote for POTUS and members of Congress), they are a special constitutional community with a lot of historical baggage.

Sports Update

Andrew Luck announced his retirement in preseason, starting a line of QBs being out for at least part of the season. Injuries now include: the Colts, Steelers, Saints, Jaguars and now the Jets (mono and then an injury last night to the replacement; Pats next so a bit of a moot point). Figured the Browns would win anyways, but Jets didn't put up much of a fight (at times, the defense did). There is actually talk the Giants will start their back-up; Manning doesn't stink. But, he is in decline and doesn't have a good team around him. Sort of a depressing finish for him. Mets lost Game 1 of the "scrubs stretch" and are five games back.

How To Read the Constitution And Why

From experience, I know it is hard to write a volume about the Constitution -- there is so much there and you need to summarize and so on. Kim Wehle overall does a good job (she has some conservative bona fides; she was on Ken Starr's team, e.g., but comes off balanced) though there are a bit too many mistakes (e.g., no John Kerry did not get more popular votes). A few times (why not cite the Ninth Amendment? also, why not include the amendments, if you reprint the text of the Constitution?) what was left out was a bit curious.

ETA: The text link on values (and norms) necessary to protect the Constitution came up in the Kavanaugh nomination. Her concern about the people enforcing it did as well. As to a bipartisan effort there, yes, but damn it, one party is not showing a desire to do it.

More News From Mr. Rapey

Sometimes, there is a bit of SCOTUS action at the end of the week lately. In a fashion, there was. First, some prestigious legal award usually given to people who deserve it will be given to the team that got Kavanaugh confirmed.

Now, more evidence (added bonus: the NYT handling the reporting in a horrible fashion; the review of the book is too soft too) that he (seriously) shook his penis at some woman at a college party. If he wasn't a partisan lying troll, someone might actually be able to get around that though with so many alternatives, probably best not to nominate the replacement level justice even then. But, he went another way, the FBI had a sham investigation and the Republicans confirmed. It was putrid all around and it should be hung around their (including SCOTUS) necks for time immemorial.

Also: Guess I should toss out that Stolen Seat Guy is out bs-isg about civility, not being a "conservative," not making shit up like you know (liberals) etc. to promote his book.  

ETA: Impressive impeaching him is this acceptable.  For instance, the lead guy at Talking Points Memo blog realistically notes actual removal is very high of a bar, but takes as a given he clearly committed perjury.  And, appears to find the calls of impeachment not pie in the sky. That's not nothing.  Sanders' "he is a financial stooge/shouldn't have been nominated" line (see comments) is b.s. It benefits him by making him standard. (He later got around to the specific problems though soft pedaled it some.)

I myself think it important on principle and useful pragmatically as a political matter generally to keep the issues alive and the House just sought out more documents to help investigate him.  I am somewhat surprised multiple candidates came out for his impeachment like this though guess Harris/Castro feel a need to go all out and Harris has already said she'd prosecute Trump himself.  Warren didn't want to lag behind. 

Mets vs. Teams Not Playing For Much Update

Yes, the Dodgers haven't quite sewn up best record yet but if they really needed the game would they take out their leading Cy Young candidate after 90 pitches for a pinch hitter with one out in the 8th? Lugo (as usual) easily dealt with the PH and it took them three relievers (who they do need to get ready) to blow it in the 8th (rather pathetically -- two hit batters and a walk let a Mets PH clear the bases, helped by a dubious non-strike call). Mets three back from the Cubs, still longshots. One more vs. Dodgers, ten vs. scrubs and three vs. the "let's rest for the playoffs" Braves. I'm sorta done. Mets "ending strong" not my thing.

Update: Karma. Via a balk/wild pitch (8th) and simply Lugo giving up a run (9th), Mets lose on Sunday. Four back. Bills beat the Giants, again looking bad. Just play the damn kid QB.

"This Is Excellent News For Joe Biden"

I provided a late remark to a discussion involving Biden's performance at the last debate and some media commentators grading him on a curve.  I will include the comment with a bit added below.  Separately, I noted that I thought Sanders a useful candidate in 2016, if a protest candidate. That isn't a dig; it has a valuable function. But, especially as Warren hits her stride, not sure what value he has now.  Plus, people go after her to try to explain ("explain") otherwise. Bad look.

There are various reasons for Biden's support and as someone who strongly opposes his primary candidacy I do not ignore these things though am unclear about how soft they are.  This is something at times alleged: we are against him so do not want to admit why people like him.  As to the last point, a few shove positive poll numbers in our faces though the numbers fluctuate and especially early one it was unclear how strong they were.  Like the high poll numbers for POC -- when they vote in the primary, what will they do?  Will a tiny fraction vote for actual POC candidates? 

Stephen Colbert (who really wanted him to run in 2016 though has done jokes about his gaffes now) suggested Biden provides nostalgia -- you felt better before Trump and I'm that. This is somewhat mixed with some unsavory things as seen by some of his comments on race and so forth. (This is touched upon in the comments such as references to poor people that are implied to be really about black poor people.)  He also comes off as a nice guy to some people, safe old pol etc.

He also has Obama sheen (though from what I can tell, Obama himself is not that gung ho for the guy) which helps his POC support ('old white dude was a loyal soldier for a black guy' helps a lot here but so does a certain sense of realism, including cynicism about the chance of someone else -- a woman with a bunch of plans? that's nice, but they won't buy that, sorry etc. -- winning .. Biden is a loyal safe choice there and POC have shown some distrust of various reformers here including AOC and the reform DA that lost a close race in Queens).

But, I think he has various problems and if they are not handwaved (and some damn well seem to want to do it) too much, some of his supporters pragmatically if nothing else will be wary of him. Either way, the problems are there and I'm very concerned about them.  I really am. Before he ran, I pointed out (as did others) his problems and they just aren't his age (it is not "ageism" to point out his problems -- one person who generally is an intelligent fellow even said he thought the minimum age rule was stupid ... what 34 year old is going to have enough experience to be POTUS?!). 

I really don't want Biden to be the nominee. Warren or Harris, please.  I don't think he is a lock yet but this sort of bs soft-pedaling (as the link notes, viewers in general thought he did much more badly) is concerning. We saw this game before.

Democratic Debate III: Nothing New, Somewhat Comfortable

You know, like the average decent second sequel. Like usual, I followed by online comments. General thought from them is that Yang added nothing, Castro was allegedly too mean to Biden (and messed up the dig to boot, that being the real concern) while Biden was tired old Grandpa Simpson again. (A few actually liked his performance though seemed to be following the usual low expectations goal posts.) But, we still are supposed to take him as a given? No. Republicans aren't forced to accept Trump since he won and Democrats can still (it isn't April 2020) push the basic truth he is a horrible candidate given the alternatives.

The Bride Test

I saw this romance in B&N though did not realize the author is autistic and wrote this and an earlier romance with a character similarly on that spectrum (she is married with children, underlining the range here). The book views things from his (American Vietnamese) and hers (mixed Vietnamese chosen by his mother as a potential wife) perspectives. Good read, including their desires for each other. It is somewhat annoying, though fits their characters to some degree, that if they actually talked, confusion would be avoided.

Another cute Hallmark Channel was on over the weekend, The Sweeter Side of Life, including James Best (Roscoe P. Coltrane) in his final role. The character's daughter -- who has a somewhat different than usual look -- even has a Dukes of Hazzard poster on her wall.

"Never Forget"

I'm not really a fan of this saying in regards to 9/11 in part that it is hard to imagine we really forgot though I guess it is something put out of our mind. The 18th year anniversary, a full adult, is perhaps notable as will be the 20th. I also, particularly as a lifetime NYC resident, have been annoyed about people using the saying to support some perversion such as anti-Muslim talk or bad policy. And/or using it against a person as if they "forgot" or something. "Everything" didn't change either. I took the subway home that afternoon. Yes, it was a "before" and "after" moment in some ways. Not even that in some ways for many as compared to other key historical events. We are still at war in Afghanistan.

Execution Watch: Mark Soliz

Subject and codefendant knocked on the victim's door and pulled a 9 millimeter handgun when she answered. They pushed her inside the house and removed several electronics. Before leaving the residence, the subject shot the victim once in the back of the head causing her death.

The discussion of the case also provides more details of other crimes, the two taking part in extended crime spree, including at least one other murder, if not the one he was sentenced to die for committing.  His codefendant received LWOP via a plea deal, it looks like it was determined he had less of a role in some of the crimes.  Both were around thirty at the time of the crimes involved here. Neither is forty yet -- so as things go, this has gone quickly [if you want an "ideal" smoothly run appeals process, the whole thing is going to take over five years, probably; this has taken less than ten so far].  So, no "too young" (21 or younger) or "too old" (the last person was executed about 65) issues.  If anything, ironically, one can argue that another a decade in prison is too easy but then too long gets you into the too long on death row train.  The unhappy medium. Or, judgment calls.

The case also has the usual (each person is different but over my life I have also found there is a lot of overlap generally) depressing details. Per one account: "The jury also heard about Soliz's rough childhood, surrounded by drugs and poverty. He saw his aunt stabbed to death when he was young and started breaking into parking meters when he was 9 or 10."  The strongest argument is summarized at one of those links too:

Since the trial, Soliz's counsel has argued that fetal alcohol spectrum disorder renders him mentally unfit for execution under the U.S. Supreme Court's holding in Atkins v. Virginia. Soliz now argues, as did Johnson, that recent changes to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-5) make his diagnosis the "'functional equivalent' of conditions already recognized as disqualifying exemptions to the death penalty."

Looks like another borderline case, mixed with the general idea that the class of people usually involved here are screwed up in some fashion.  Multiple people in our small sample size this year during this process had some issue that  made the execution problematic. More than once, it was a matter of the process itself -- e.g., the whole non-Christian minister at the execution controversy or the protocol used.  Likewise, more than once it just was a matter of execution itself being problematic.

This appears to fit into that category.  The execution process on some level seems be running smoothly.  It hasn't been too extended (some might think so) really or dealing with someone real old/young.  It is not some blatant case of possible innocence or something.  It doesn't really seem that unjust that he was sentenced to die though maybe his guilt really wasn't much more than his co-defendant here.  Yes, it wasn't in that special subset of truly horrible murders (involving children or some sort of lingering death) but it wasn't just a single robbery/murder either.  Still, bottom line, what does one more execution over many others with similar or worse details give us?  To me "the lottery" issue repeatedly stands out.  It seems so arbitrary with the general sentiment being that the specific person does not have the individual guilt to deserve being chosen.  Likewise, the public value of it all is dubious, the rare special case (murder in prison etc.) rarely arising. And, more than once even they have issues.

The argument here might be valid -- when "life" is involved in due process matters, when the government is doing the depriving in a calculated way with ready alternatives -- there is a high test with even small doubts making the whole process to be illegitimate.  But, though this might fit into a special category that the US Supreme Court determined deserves extra concern, his case probably is close enough that there are various others as worthy of not being executed.  And, the system is bad, even "good" cases only helping to bring on more troubling ones  Anyway, this is the second of three from Texas this month and more from there to come. Texas: capital punishment central.

On Twitter, a reporter told me that after losing at the 5CA, he did not appeal to SCOTUS. Basically, the procedural bar Sotomayor referenced last week probably made that seem a waste of time though it is not like various other cases had much more of a shot. But, at least one person did decide to avoid that as well this year so he is not alone.  His final words:  "I am going with a humble heart. I made wrong decisions but, I forgave myself."  That's nice. Not sure who else forgave him. Take what you can. 

[Upon reflection, I think it would be a good idea if there was an automatic final appeal in these cases. The state does not have the authority to do things just because people wish them to do so, so a total waiver of appeals in death penalty cases is problematic.  Not the case here -- did a docket search and his name did come up regarding earlier appeals.  But, there does seem to be value in one final safeguard before the state in a premeditated way takes a life.  This in part because things do pop up later.]

His execution occurred without apparent incident. (I recall one account this year where someone executed said something as it occurred that suggests there was some pain.  But, not aware of one of the recent executions being somehow botched. Might have been -- part of the problem here is that you might not know.  Doing a search, last reported botch was last year.)

Witness to Murder: Darrow Mystery

I wonder how many viewers catch the name reference but anyways "Darrow and Darrow" (mom/daughter ... granddaughter a charming addition to a good ensemble cast) is about median for Hallmark Channel mysteries. So grading on curve. We aren't talking high quality writing or court drama. The last one was particularly lame at spots there. But, it's a charming cast with a cute couple. Comfortable with some nice touches. I like his shoulder bag. The prosecutor/police officer (former girlfriend) had some good scenes too. Nice separate perspective. I generally like that and his character earned it. Did ff a bit.

Sports Update

Football season started last Thursday, but was in full force today. Jets can't kick or score on offense (eight points, two on a conversion after a missed extra point and longish field goal left four points off the table) and blew a sixteen point lead (starting by a penalty continuing a drive). Giants just looked bad vs. Dallas. So, same old same old. Mets pen [and not just the usual suspects] had to go five and did badly. Cubs left an opening and the Mets only gained a game. Sweep hard; got to win series. Detroit/Arizona tied for the laugh of the weekend.

Trio of Hallmark Movies

Trio of charming Hallmark Channel movies on today (there was a marathon for Labor Day and the best one was one of the lamer ones). The Nanny Express has somewhat tiresome second third involving the daughter trying to push another woman on her dad, but this earlier (2008) had a good cast (the dad popped up in another Hallmark film recently) with people like Dean Stockwell playing supporting roles. It also dares to have a religious touch, the woman volunteering at a tutoring center apparently connected to the local church.

Love at First Dance has a nice lead duo with the assumed fiancée leaving on good terms when they decide it was not meant to be. The story is well paced. The dance instructor love interest is charming. The sympathetic (if more flawed than the heroine) putative fiancée character also pops up in The Perfect Bride, which also is a well paced film. As seen in the first film, even some of the good ones have slack periods. This one had sequel though there wasn't much more material there. Stars from both popped up in other Hallmark films.

ETA: Turned off Easy Rider very early. Bored. RIP all the same.

Case Study: Hair and Constitutional Rights

The courts for some time have recognized a constitutional right of various unenumerated "liberties" though tend to be more concerned with a limited group of them.  During the so-called "Lochner Era," e.g., a "freedom of contract" was a major matter of dispute while generally speaking the courts allowed a broad swath of regulations (including involving free speech etc.) if they were basically reasonable.   This shows that the assumption that (for good or ill) that was a sort of libertarian period much more free of government regulation is misguided. 

Later on, once a right of privacy was firmly found to be a freestanding right [some recognition of a right to privacy was present by the late 19th Century when the famous law review article was written by Brandeis and Warren, but the contraceptives ruling is often somewhat misleadingly cited as the key point here], the Supreme Court started to limit it particularly to "procreation, marriage, and family life." The right to privacy had a potential to be more open-ended but (at least at first, speaking here about the federal constitutional flaw since some states were more open-ended) conservative membership in the 1970s made sure to draw a line. This was even in cases that some would argue fit into that general category such as homosexual activity.  A case such as Stanley v. Georgia (obscenity in the home) also was basically limited to its facts, not its wider implications.

Kelley v. Johnson from the mid-1970s was one such line drawing cases.  The case involved what might seem a rather trivial matter: a liberty interest of police officers to have their hair a certain length.  The government at oral argument assumed for the sake of argument that an extreme regulation -- such as shaving the head -- might be deemed unreasonable.  Overall, the six justices (Justice Stevens not involved) had an easy time of it, seeing it as involving the power of the government to regulate its own employees. Justice Powell had a brief concurring opinion that can be quoted in its entirety:

I concur in the opinion of the Court and write to make clear that, contrary to the concern expressed in the dissent, I find no negative implication in the opinion with respect to a liberty interest within the Fourteenth Amendment as to matters of personal appearance. See Poe v. Ullman, 367 U. S. 497, 541-543 (1961) (Harlan, J., dissenting). When the State has an interest in regulating one's personal appearance, as it certainly does in this case, there must be a weighing of the degree of infringement of the individual's liberty interest against the need for the regulation. This process of analysis justifies the application of a reasonable regulation to a uniformed police force that would be an impermissible intrusion upon liberty in a different context.

The dissent is not really wrong to be concerned about recognition of the right when the majority opinion (citing the limited collection of categories I referenced) somewhat gratuitously (not really; it was making a point) noted early on in comparison: "But whether the citizenry at large has some sort of "liberty" interest within the Fourteenth Amendment in matters of personal appearance is a question on which this Court's cases offer little, if any, guidance."  It granted such a liberty was present since the regulation was still acceptable as a regulation of public employment.   But, even there, a matter of religious faith or something that will also affect private life too would probably have been handled by one or more of the justices more carefully.

Hair length was a matter that popped up in loads of lower court opinions in the 1960s and early 1970s though only Justice Douglas appeared to want to take a case to address the matter.  As he noted, such a matter of personal appearance involves the right to privacy and even provides a good fit when examining 1920s cases that are often cited in this area.  The Supreme Court held then that parents had control one their children's upbringing, including not needing to send children to public schools. It compared this to the regimentation of upbringing in Ancient Sparta.  The same could be said there in regard to personal appearance.  As Douglas noted: "One's hair style, like one's taste for food, or one's liking for certain kinds of music, art, reading, recreation, is certainly fundamental in our constitutional scheme—a scheme designed to keep government off the backs of people."*

Hair length and related issues on some level might be deemed somewhat trivial, but its symbolic nature (down to the naming of a musical) is telling here.  This was true over time, including "bobbing" hair, which was the subject of a well known short story arising from the 1920s practice. The issue arose over the years internationally as well, including in determining what sort of thing is obscene or not.  As noted by the dissent in this case, matters of "privacy, self-identity, autonomy, and personal integrity" arise.  The First Amendment interests are apparent too, matters of religion, the counter-culture, ethnic expression and so forth resulting in various controversies over the years.  This also overlaps with equal protection concerns.

Thus, the majority reaches by saying that previous cases have little to say about this issue. The dissent cites a case that in an open-ended way recognized liberty interests over what one eats, reads and wears.  "If little can be found in past cases of this Court or indeed in the Nation's history on the specific issue of a citizen's right to choose his own personal appearance, it is only because the right has been so clear as to be beyond question. When the right has been mentioned, its existence has simply been taken for granted. "  But, one in no way needs even to go that far.

The dissent Justice Powell cited is the by now basically authoritative open-ended recognition of liberty by Justice Harlan in his dissent involving use of contraceptives.  It recognizes some general right of privacy while leaving open some significant discretion to regulate, if one that recognizes as well that the specific contours here would develop over time. This fits the concurrence's purposes well since there we were dealing with private life while here public employees were involved.  Again, the comment dropped by Justice Rehnquist, known to toss in those little nuggets as much as Justice Brennan did from the other direction, is still there.

I am not aware of the Supreme Court ever dealing with the issue of hair length in any other context. As noted, it touches upon multiple constitutional provisions and this was seen back when the issue was cutting off the hair of Chinese (which Justice Field flagged on circuit back in the 19th Century).  Well, there was a case by the Roberts Court that dealt with beard length in prisons, holding a federal law protecting religion covered inmates whose faith required at least minimal beards.  A 1980s case held in a split decision that the First Amendment itself did not provide a person in the military the right to cover the top of their head with a yarmulke.  Hair issues continue to be a matter of concern in the lower courts such as in the employment context raising gender, racial and religious issues at the very least.

Might be leaving something out here, but this is a case where the Supreme Court does not decide a range of cases that very well might touch upon serious constitutional questions. For instance, the usage of "under God" has consistently been avoided, the case brought by Michael Newdow not decided on the merits for standing reasons.  The lengths this is taken is seen by how the Second Amendment case (at least for now) still coming up is except for a minor one the first for about a decade.  OTOH, there are hundreds (perhaps over a thousand) of Second Amendment cases decided by the lower courts.  This is on some level a good thing since it avoids needlessly fixing in stone things from up high that can benefit from more discretion.

Still, we often are dealing with matters of some importance and personal discretion in appearance is one such issue. The best approach there was to skip that little extra bit and rest on it being a matter of public employment. This would not avoid various disputes but the more open-ended language needlessly dishonored an important personal matter.

---

* The final little kicker there goes too far.

Liberal policies sometimes are challenged as violating limited government, but the Constitution expanded the power of the national government.  In various ways, it also expands government power in general -- the 21A, for instance, expressly gives power to states to limit liberty involving alcoholic beverages. The Constitution obviously also balances this with means to check governmental power though even there often it is power v. power, not specifically limits on all power.

Thus, the discussion here is often about trying to fit a certain matter such as control over one's personal appearance in a slot that does limit governmental power.  The slot might be general (due process/9A privacy argument) or specific (1A).  But, a mere libertarian argument is flawed.

Birth Strike

The concept of a "birth strike" arises from the idea that the importance of children to the powers that be gives women leverage to demand better as seen in other countries where incentives like child care was provided. The book covers a lot of ground in its small package (a lot of notes and other material) to explain how opposition to reproductive liberty has been in large part not religious as much as economic in nature. A bit much at times, and sometimes seems part of the story, but a lot to think about.

"Comics for Choice is anthology of comics about abortion." Graphic novels can be quite good to deal with diverse issues and this collection is also very good with various perspectives. (One notes some clinics have personnel who are not supportive while another tells of a mom who doesn't use strict choice language, but it might have done with one or two more not in a standard choice voice. It does have cases where people were conflicted but generally they got past it. Pro-choice comes in all sizes.) And, you can download it free online.

Evening/Late Nite Viewing

And Also: Okay, so the Mets had a shot at sweeping the Nats, which would have meant getting a bit closer to the Cubs (still going strong) in the Wild Card race. But, they blew a six run lead in the ninth. DeGrom, who was pushed into the eighth for some reason, which was a small part of the loss, received another non-decision. The chance to win a game vs. a Nats ace was blown but a lot of "they came back" talk (after a lot of "season over" talk -- the game was iffy anyways, if not for the reason it eventually was) when they won the next day.  Mets still five games back.  Meanwhile, football season has begun.  Bears blew a shot to tie it late vs. the Packers, losing Thursday Night Football 10-3. 

I noted that I am watching Friends again, which I have done throughout the years -- the theme song sort of a reflection of the up/down state of things. "Year" might be optimistic. The NYPL for some reason doesn't have the first season, but Nickelodeon runs five episodes a night so the first season should be back on by October.  I just borrowed Season Two.

The show started to really click by the second season and there was some very good plot arcs (largely romantic) that gave the actors/friends ways to shine.  I personally am pro-Chandler/Monica, in part since Chandler is the character that in some ways reflects my own personality.  The scene where Chandler and Monica smile when admitting to Joey they are a couple (his reaction when clues clicked in was classic) was a highlight. Ross and Rachel had moments too (the break-up scene was good though it went on a bit too long; a bit about him giving back a favorite t-shirt after too) but I'm team Monica/Chandler.  Phoebe's touching highlights were often family related, including with her birth mother (Teri Garr) and half-brother.

The twenty-fifth anniversary brought out some people who don't like the show, but re-watching leads me to (like Chandler) get a bit stressed and all "what ..." about it.  Understand why some would find it a tiresome account of some white people without real problems but it has charms and some real amusing and touching moments.  The energy and freshness did start to slip during the sixth or so season, Matthew Perry's health issues not helping.  The characters still have some charm but come off as an older and more tired version of themselves.  "Monica" in real life actually is five years older than "Chandler" and you do notice her being older in time.  Found the whole Richard deciding he really wanted to marry Monica scene, e.g., a tad forced.  It was around when I stopped watching originally.

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Disney late at night now is also replaying Good Luck Charlie, one of the shows not just geared to the tween/teen audience that I enjoyed. Caught a few episodes.  Moving from "G" and "PG," we have late night soft porn. This was the subject of a few posts, including one I extended with some more links, in part because it was getting a lot of hits (at least for this blog).  The film -- Sensual Survivalists -- was on again.  This was a silly film that wasted (noting at times late nite cuts of films leave something out, not just penetration shots, there simply wasn't much "in the field" nudity) its potentially interesting premise of a couple in one of those nude survival shows.  The guys left something to be desired too -- her regular guy is a bit lame while the survivalist buddy is a creepy looking bald guy.  A third guy -- the survivalist turns out to be into polyamory -- is more blandly okay.

Fios has some of these soft porn movies ready free on demand (Showtime and TMC) though some of the ones I like are not now available. Law & Orgasm, this time without the "order" (prosecution segment), was on as a one-off recently.  You can enjoy how bad the police operate as well as how skanky the male senator looks.  It even has a twist ending.  Some decent soft porn sex scenes.  Head & Breakfast (aka Double Booked -- a more accurate title really) was also on -- it too as previously noted is enjoyable enough with a light touch and some good sex set pieces.  Sex Devil about Lucifer's daughter finding out about her family was also on.  This is amusingly bad and recommended for those with a tattoo fetish.  Daddy's Sexy Mistress was also on last night.  His non-sexy mistress was not worth a film, I guess.  The "mistress" is enjoyable but the film is fairly boring.

Last week or something also brought the Stormy Daniels written/directed Sex Life Crisis (aka Girlfriends*), which I also referenced before. Notable for an extended (at least by the lights of these films) segment after the opening sex scene (AJ Applegate alert) that seems to run around fifteen minutes at least that is straight (given the lesbian plot, let's say no pun intended) exposition.  There is also no male/female sex though someone says she had some casual sex with her guy friend (shown).  It's a mixed effort (the main character is a bit annoying, her love interests all better) but interesting.

The Jennifer Garner mom turns vigilante film Peppermint continues to play late at night too (also available free on demand) -- it's a good film (good enough; she is very good in it) and I hope she has another such role ala Liam Neeson.

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* The rather bland original title matches what comes off as a serious effort, which is not an oxymoron in the porn area. As I noted in the past, even some of the hard core videos you can find on Pornhub and similar places have some quality to them that goes beyond the sex. As with an shoot-up action flick, yes, people watch this stuff for the sex. But, it's good to have more.  Or, at least, do it with a bit of professionalism and charm.

The DVD extras emphasizes this is a lesbian movie so the sex scenes being all woman on woman makes sense. Still, I think instead of the long gap between the first and second sex scenes (the third and fourth then coming with limited exposition between), it could have had a scene between her BFF (played by Scarlet Red, whose acting is at times a bit rough but overall is appealing here) having casual light hearted sex with her "friend with benefits" (to use another film's term, she speaks of them "sports fucking").  This would be in contrast to the emotional connection she has with her BFF.  So,  it would fit the plot. 

[The star of this film in a quite different porn role.]

Heart Beats Loud

Charming indie about a dad and teen daughter (itself a novel thing) etc. with a great supporting cast in small roles (like Ted Danson). Good music and commentary track too.

Execution Watch: Billy Jack Crutsinger

We are fully aware that many condemned prisoners have committed crimes of the utmost cruelty and depravity and that such persons are not entitled to the slightest sympathy from society in the administration of justice or otherwise. Nevertheless, it is incompatible with the dignity of an enlightened society to attempt to justify the taking of life for purposes of vengeance.

Over the weekend, there was a flag that the murderer of RFK was stabbed in prison and is in stable condition. He has been in prison now for fifty years.  He could have been executed years ago (though it is unclear if he was mentally stable at the time) but the California Supreme Court (with retroactive application; Charles Manson also was covered) held the death penalty violated the state constitution. The majority rejected on punishments resting on mere vengeance and as a whole argued: "the total impact of capital punishment, from the pronouncement of the judgment of death through the execution itself, both on the individual and on the society which sanctions its use." I would start even before the judgment, punishment a complete process and system.*

The people soon changed that, and though less than fifteen people were executed among hundreds more (there are over 700 on California's death row now, so it probably with deaths amount to a thousand at least), the death penalty was uphold.  A concurring opinion noted: "Thus with a feeling of futility I recognize the melancholy truth that the anticipated dawn of enlightenment does not seem destined to appear soon."  The person who brought the earlier case (murder of a pawn shop employee and wounding others, including a police officer during a shootout) had been released by then.  He later tutored preschool children at day-care centers and served as a counselor for juvenile delinquents.

The state court in that very case found the specific prosecution illegitimate on due process grounds and there was repeating controversy on California judges too often finding fault with capital prosecutions. The latest scheduled execution has been going on for around fifteen years and challenges rest on due process concerns.  To quote a state reply to his last minute appeals (as usual, one can do a search of the name on the Supreme Court docket page): "Crutsinger’s  main  complaint  of  harm  is  that  he  was  provided  a professionally incompetent state habeas attorney. " Said attorney was subject to attack in the past.  But, since the defendant received better help later, it's unclear how blatant this all was especially to justify a stay.

A summary of the crime: "On April 6, 2003, in Fort Worth, Texas, Crutsinger [late forties, white] entered the residence of a 71-year-old white female and an 88-year-old white female and stabbed both victims multiple times, resulting in their deaths."  It turns out was a mother and daughter. Also, the media reports suggest he didn't come off as a pleasant type: "Through all of the testimony Friday, there was a theme: Crutsinger liked to drink, and he drank a lot. And when he did, he hurt people."  This all might suggest why what comes off as a cruel robbery/murder but not quite "worse of the worst" territory resulted in a death sentence.

A good article by someone from Texan reporter that used to be in NY covered the other side:

During trial, as detailed in 2003 media coverage, defense attorneys outlined Crutsinger’s tough life as well as his troubles with alcohol. According to legal filings, he grew up in a large family where his father had a drinking problem and none of his siblings finished high school. After dropping out in 11th grade, Crutsinger had a string of failed marriages and other relationships. His first child died hours after birth, his second drowned as a toddler and his third was killed in a car wreck at 16. Through it all, Crutsinger drank off and on, turning into what relatives once described as “Dr. Jekyll and Mr. Hyde.”

It also summarizes all his claims: "In the years since he was sent to death row, Crutsinger has filed appeals arguing that he is actually innocent, that he had a bad trial lawyer and that the trial court should have suppressed any evidence stemming from his illegal arrest."  But, looks like it too thinks the incompetent habeas lawyer claim is the strongest.  A recent execution had credible concerns of innocence or at  least reasonable doubt, especially if we desire a heavier test for executions.  Another was at least a borderline case of intellectual disability.

This one seems to approach core principles. Not quite so since a robbery/murder of this sort to me seems not "worse of the worst" material.  Recent means of execution opinions might suggest the test is a bit looser but this to me is a valid summary of the rule noted in a death penalty case in 2008:

The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application. In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense.

The case involved a non-homicide (child rape) but as noted there it also applies in homicide cases.  Our society unfortunately has many murders int the course of felonies of this sort over the years, but executing someone for them is a rarity.  We need not think of special cases like the murder of a potential POTUS or someone like Charles Manson here.  Or, tricky cases like a person who murders in prison or during an escape. Such things have arisen though even there non-capital punishment jurisdictions also find a way to address such possibilities.  We deal here with, though this will seem heartless, a sort of standard murder (yes, of two people, if one criminal act) during a robbery.  The first one had more aggravating circumstances.

I will likely never say that the procedural due process claims raised have no merit given that every capital case is likely to have some credible concern.  Did not do a deep dive in these capital entries, but simply put, that sometimes also clarifies things some more too. But, in the scheme of things, that doesn't seem to amount to too much here.  At least by now, after a range of appeals, a specific constitutional claim won't do the trick here.  As to length of time of death row, we are starting to approach notably long as these things go.  Still, bottom line, my concern here would be that detention in prison would be suitable for these crimes.

The person involved in the first crime was released after a little over a decade and appears to have lived a good life. A young black criminal involved in a basic robbery in California in the 1960s and 1970s might be seen like an ideal situation there. The injury to his hands if anything might also have helped since it made it harder for him to commit further crimes.  An older white asshole who brutally murdered two old people in their home is more egregious. But, detention would provide a means to address that.  A few people executed yearly in Texas will do little to deter or provide "just deserts" above and beyond that. 

The final rejection is expected but do appreciate Justice Sotomayor explaining her vote while saying that there might be a better related claim in a later case. Crutsinger was executed without apparent incident.  

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* From a National Review article by a political science professor cited from the dissent:

"Capital punishment ought not to be abolished solely because it is substantially repulsive, if infinitely less repulsive than the acts which invoke it. Yet the mounting zeal for its abolition seems to arise from a sentimentalized hyperfastidiousness that seeks to expunge from the society all that appears harsh and suppressive. If we are to preserve the humane society we will have to retain sufficient strength of character and will to do the unpleasant in order that tranquility and civility may rule comprehensively. It seems very likely that capital punishment is a ... necessary, if limited, factor in that maintenance of social tranquility and ought to be retained on this ground. To do otherwise is to indulge in the luxury of permitting a sense of false delicacy to reign over the necessity of social survival."

The number of places that doesn't have it suggests otherwise.