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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Tuesday, December 31, 2019

A Decade Slips Away

The political winds of this decade started fairly well and then dropped off. 2016 was a travesty. 2018 (including in NY) brought things more in the right direction. Impeachment, flawed as it might be, was a key moment in 2019. Personally, the decade was rather mixed too, but new decade, so you know ... Happy New Years. (Will skip the latest Biden stuff.)

Sunday, December 29, 2019

HA HA HA HA (Week 17)

Bills limp into playoffs with loss vs. Jets, but the upset of the day is Dolphins (who were slaughtered in the first match-up), who came back to win (with very little time left, which was key, since they were only up by three) to deny the Pats a bye. Giants didn't play spoiler, Eagles play Seattle (loser of final game by a damn hair at the goal line) with Titans getting final AFC spot. Saints wound up 13-3 with no bye, with dubious late calls in two games helping out. Stuff happens, but you know they also missed the Super Bowl that way too.

Meanwhile, a bit more Christmas movie fun, if on demand since all channels other than Hallmark stopped showing them. A Date Before Christmas (flagged on Twitter because of a charming performance by Morgan Fairchild as Mrs. Claus though she isn't the only Friends face that pops up) was cute. The Holly and the Ivy, an old British film, is also charming.

THE LONG REACH OF THE SIXTIES: LBJ, Nixon, and the Making of the Contemporary Supreme Court

"Kalman presents an accessible, lucid brief on how our Supreme Court appointment system became the mess that it is." The author is careful not to promise she was teaching any big lessons as she covered the LBJ and Nixon appointments. The book also was published early 2017, before any Trump asshole justices. Felt it started a bit slow but got into it more later. You almost was optimistic early in the Fortas CJ nomination process, but it still seems the whole thing was a total screw-up on LBJ's part. Good but maybe not great read.

Saturday, December 28, 2019

Trump Commits More Impeachment Worthy Offenses (aka Another Day Passes)

Trump is trying to out the alleged Ukraine whistleblower on Twitter.
Some will not take someone that even the likes of the head guy at liberal leaning Dorf on Law has dismissed to me personally as a kneejerk types a good judge. But, when it comes to how bad Trump is, that level of disgusted cynical partisan (though repeatedly he still leaves something to be desired) is appropriate.

Trump retweeting right wing conspiracy b.s. on a steady basis is not okay.  "Trump being Trump" at this point is akin to "arsonist being an arsonist" -- you'd keep the person out of sensitive buildings without close supervision.  President Andrew Johnson, in a largely forgotten bit, was partially impeached for "attempt to bring into disgrace, ridicule, hatred, contempt and reproach, the Congress of the United States." This calls to mind Trump's campaign rhetoric and like with the Ukraine Extortion Racket, he is a repeat offender here.  The problem is that we saw how far criticizing this in 2016 went with people mostly resigned about how uncouth the guy is.  Yeah.  LBJ was uncouth.  This guy is f-ing disgusting.
"Facebook has a policy against naming the whistleblower, and told BuzzFeed News on Thursday that any mention of the name of the person believed to be the whistleblower violates its coordinating harm policy."
Even with Andrew Johnson, when a Johnson even campaigning itself was notable and there was a higher degree of propriety regarding public speech, there was not enough support to even bring it to a vote.  But, Trump at some point makes Johnson's "Swing Around the Circle" rhetoric tame, particularly given the reach of his Twitter. Calling Comey "scum" is notable enough. [See Aaron Ruper Twitter.] No wonder serious splits among evangelists (note it always was much more "white" evangelists anyhow, a qualifier notable in its absence) are starting to come out. This guy is in the minds of many after all the President of the United States.  But, retweeting the supposed whistleblower?

How exactly can this be handwaved?  As I said there, it isn't the case that there was no coverage.  Newsweek (where one can find out, including by links to Buzzfeed, that Twitter said retweeting would not violate its standards, but outing the alleged whistleblower would violate Facebook standards).  I continue to be wary at the limited impeachment counts though hold to my belief that (1) the "consistent/previous" type language makes it wider than some make it out to be (2) realistically, it's a synecdoche of wider wrongs as seen repeatedly when people talk abut them. Nonetheless, the ongoing actions here suggest the value of an obstruction of justice count. Among other things.

It's hard to keep up the outrage without, especially since there is a general feeling by many that reality is not as bad as all that. At least, you cannot hold up that level of outrage and disgust on a steady basis.  Thing is that at times it is warranted.  Jim Crow was a thing, a bad thing, even if only a small minority was strongly against it in practice. As a new decade approaches -- I'll take the side that thinks 2020 is that -- we need to stay firm here.  It's basically holiday time as is, making it harder to spread the news, but so it goes there.  As some attempt is made to pressure a few Republican senators to at the very least make the impeachment trial kinda actually a trial, we continue to see horrible things that were there all along. As with Ukraine, this all is "consistent" with "previous" stuff.  It's still real bad.
Mr. Biden was asked by The Register whether he stood by previous comments that he would not comply with a subpoena to testify in the impeachment trial. He said he did, and explained that complying with a subpoena and testifying would effectively allow Mr. Trump to shift attention onto Mr. Biden and away from the president’s own conduct. Mr. Biden made similar comments to reporters aboard his campaign bus on Friday night.
While the idea of witnesses called on behalf of the Senate, or at the request of the House of Representatives in the form of managers putting on a case, is put out there, this latest Biden thing to me didn't help.  Biden is obviously right that there really is no good reason for Biden to be subpoenaed as a whole and it is likely just a way for Trump/Republicans to throw smoke. OTOH, I'm not sure how unlike that is as compared to many witnesses called in various civil and criminal trials. And, the rules are more lax in impeachment trials.  Biden had no grounds to say that.

Some with less concern for legal niceties appreciated Biden's comments; my reaction (colored somewhat by not being a fan anyway) was negative. My thought was not only that he had no right to challenge but it would give aid and comfort to the other side's refusal based on what basically amounts to "they aren't going to be fair" allegations.  Democrats are trying to get support for witnesses. Preemptively refusing theoretical subpoenas is not really ideal.  And, as noted in that article, Biden finally got around to realizing it.  More depressing dubious strategic decision-making.

It is realized, concerned people will be sure to emphasize, that this is a lesser problem to Trump aiding and abetting right wing trolls against the forces of proper government.  The lesson is that being a whistleblower is a dangerous affair and you shouldn't make waves.  The putative executive head rather help war criminals.  We knew this in 2016. It was ridiculous then to think he was a credible person for the job.  One party refuses to admit this or even be "disturbed" (as the gentle lady from Alaska is reportedly of Moscow Mitch totally being in hoc with Trump on impeachment, as you know as the leader of a separate branch naturally should be) that much.  Impeachment is a sort of "you know, I have concerns" thing, not "obviously he should be, I'm just concerned on it being so limited."  The state of things as the decade runs its course.

The 2010s left something to be desired for me personally. It is ending rather dubiously for the country though impeachment was a little sign of sanity. Well,at least we aren't the UK!

Thursday, December 26, 2019

Holiday Season Marches On

Today is Boxing Day ("boxes"/presents for servants; United Kingdom) and the first day of Kwanzaa (has candles like Hanukkah but seven days and principles that sort of remind me of Unitarian-Universalism; it is an African cultural holiday and secular humanist in origins).

Tuesday, December 24, 2019

Merry Christmas

NFL Update

We are coming down to the wire. After three Saturday games where the underdog put up a fight but lost in the end (including the Bills vs. Pretty Boy), the Jets (the Steelers QB lacks starting to become an issue; 16-10) and Giants (needing OT after the back-up for the Redskins put up some tying drive, making it 35 all late) won. Arizona upset Seattle though it still will come down to their final game vs. the SF. Bengals managed sixteen points in the final minute but still lost on the final play of overtime vs. ... of course, the Dolphins. MNF: Packers clinched division, the Vikings defense faltering eventually, offense never really showing up.

Monday, December 23, 2019

Happy Hanukkah and Festivus

Hanukkah this year runs from the evenings of the 22nd until 30th. I again provide this past discussion (and later versions on this blog) and [still] wish to find a good book that provides the surrounding history for the general reader. Both the immediate Maccabees revolt and developing holiday. The Slate article was written by a Jewish scholar who co-officiated Chelsea Clinton's wedding some years afterwards. Happy Festivus (today) as well.

Saturday, December 21, 2019

The Secrets We Keep (and Telling the Whole Story)

Before leaving, they leave quicker there I guess, the defeated governor of Kentucky went on a bit of a pardon binge that involved some rather controversial cases. These were highlighted, especially one or two involving horrible crimes and apparent financial bias [think Marc Rich]. But, as seen here, the guy not only also pardoned more sympathetic types but showed some concern for criminal justice during his term. Criticism of heavy-handed solitary pardon power is valid -- it should be done in an organized way -- but there is a reason multiple criminal justice warriors were wary of the criticism.

A trip to the library brought two good finds, Good Talk and also The Secrets We Keep, a Reese Witherspoon [she has a book club] pick as it turns out. It a fictionalized account of real events, on one front about the author and his "Lara" of Doctor Zhivago (I have not read/seen it), and on the other, the plan to sneak copies into the Soviet Union. Meanwhile, we get a look at some of the women who worked at the CIA both as "typists" and spies. Good stuff at the website and more video can be found online. It also is being made into a movie.

On the impeachment front, the last comments on this thread are ... well, amusing is one way to put it. The guy continuously challenges my good faith (easier than actually refuting my arguments), and then tacks on (with a dig that ignores the repeated efforts of mine to do historical research on matters) something that basically supports my agnosticism on something I said was "academic" anyway. If I wanted Moscow Mitch to lose, that would be a rather piss poor way to do it. Anyway, in his own way, he's as bad as the B. trolls there.

Wednesday, December 18, 2019


Two Dems, one planning to change parties, who voted against the inquiry voted "no" while one voted "no" on the second (Obstruction of Congress). Not a single Republican even voted for the rule that allowed for the debate/vote today. Two Republicans didn't vote; one Democrat also was away. Tulsi Gabbard voted "present" on both. Amash "yes" on both.

It's depressing how so many Republicans talked about how the Democrats just "hate" Trump and so forth. At least one said Jesus had more due process from Pilate. I figure a handful at best suggested Trump maybe did something wrong but wanted the process to continue. Democrat after Democrat said how serious it is, how they weren't gleeful (many honestly noted they at first didn't want to impeach) etc. Some very powerful remarks. Touching to me, even if one can be all cynical or want more or expect it just to die in the Senate. Enjoy the moment. Fight for the best fairness and punishment of Republicans possible in the Senate.

Tuesday, December 17, 2019

Impeachment Eve

I suggested back when the Mueller Report was dropped that the House should have some sort of "impeachment inquiry" (was open about the terminology), which could be an extended process.  The thing for me was that Trump, especially the matters around that report but also other stuff, required something more than ordinary investigations.  The breadth of his problems could require multiple investigations with different battles over subpoenas or whatnot.  Battles over his tax returns might be different than investigation of the Russian interference with our elections.

Anyway, that was not what happened, and it seemed to take a long time to even being the battle over subpoenas while there also were continuing extended battles over emoluments as well.  The fight for his tax returns, e.g., seemed to take a long time.  It was depressing though how these things go, let's remember the House Dems just gained control of the House in 2019 and the government shutdown delayed things too.  Why emoluments battles still are taking so long when they could have started back in 2017 is less clear.  The delays underline why "let's hit a pause and battle in the courts for subpoenas for Bolton et. al." seems like a bad idea.

Things sped up with the Ukraine Extortion Racket  being exposed in late summer.  The biggest drama was the testimony of various fact witnesses in the House Intelligence Committee. The Mueller Report should have resulted in an extended process (there were investigations in Congress over the events covered to some degree, but the Report could have provided a way to comprehensibly address things, including Trump obstruction) of similar nature, instead of Robert Mueller (months later) testifying and people belittling it when it happened.  Trump basically got a pass.

The testimony underlines the potential of a major impeachment inquiry process that was crafted for the biggest dramatic effect as well as having some value to bring out important facts.  For instance, the Oversight Committee (with AOC) had some powerful moments, and one can imagine financial committees doing something with the emoluments and other issues.  Was there an excuse made that litigation was pending to release important financial records?  As seen in the Ukraine matter, other ways were available to get stuff out there.  Did Schiff leading the committee help some?  I think the key thing was that the Ukraine Extortion Racket was so easy to show as a blatant wrong. 

Still, again, I think more of the same could have been out there if things were handled differently.  This all might be repetitive but I do think a lost opportunity should be flagged.  There were some on what I might call "Team Nadler" who supported an impeachment inquiry earlier.  Anyhow, after the fact witnesses, the next two steps -- Judiciary and Rules (today) -- had less drama.  The law professors (including the fake allegation of going after Barron Trump for use of word play in a single comment) has some bite.  The next part was repetitive.  The best part was a bunch of personal statements by Judiciary members that basically said "we are here to serve the public, but Trump forced our hands." The Republicans mostly clowned.  Rep. Jamie Raskin, professor extraordinaire, was the star of the show today during the Rules debate, which seems mostly a delay mechanism by the Republicans.  But, not by much, since things are suddenly quick -- a few legislative days handled these two steps. 

Impeachment, only the third time on this level in our history, is scheduled tomorrow. With the conclusion that the Senate will simply not convict, some basically seem to handwave this as mostly meaningless. But, impeachment to me is not so trivial.  And, as I noted already, the limited nature of the impeachment is misleading.  The impeachment is being carried out with the recognition of his wider crimes, the 2016 election specifically alluded to in the text.  A person is however a bit clueless if they do not understand that things go even further than that.  Republican attempts to ridicule the limited evidence is hard to take seriously.

As is, the assumption is that the trial will be in January. I think this is useful in that it puts things ahead of February primaries though the three senators running (is Booker still a thing?) might be making final preparations before then as well.  Just what it will entail remains to be seen.  And, it doesn't mean everything else will suddenly stop.  An impeachment directly related to interfering with another election given the involvement of the current leading candidate (sigh) is time sensitive.  It's an open wound overall: Trump used authorized foreign aid as a level to promote his own ends. How can he be trusted with money of any type that might be used in a similar fashion?  But, investigations will continue, as they always do.  Career criminals do not only have a single prosecution.


I was originally going to tack on a couple more religious related cases to add to my big holiday display entry.  One would be Lee v. Weisman, especially Justice Souter's concurrence, which provides a historical analysis (one of many which shows the liberal possibilities of originalism) mixed with his support of precedent. This includes another explanation why Thanksgiving Proclamations (which Jefferson and Madison were not overly comfortable with anyhow) does not suddenly justify prayers and so forth.

Justice Souter also dissented in the Van Orden v. Perry Ten Commandments case (largely fact based) while writing the majority opinion in the companion case. The note here would be Justice Stevens' more extended dissent, which also explains why they are different from certain "civic religion" moments like "God Save This Honorable Court."  One footnote also answers the "this has been around for so long before someone sued" argument by citing a range of lower court cases, one going back to the early 1970s.  I cited a few old cases before and more could be seen here. The district court ruling there actually held against the Ten Commandments monument in question.

Shades of abortion and other sexual privacy related issues -- there are a myriad of lower court opinions that cover things in various ways, including at times splitting things in ways not found my the majority of the Supreme Court.  Back in the day, it was a trip to the library downtown to even read federal reporters.  Now, you could read a bunch of things online, and not just via paywall legal databases (many articles are so blocked).  Fun!

Monday, December 16, 2019

SCOTUS Watch, Hallmark Reconsiders etc.

Let's lead with something nice. Hallmark (or their parent company), after a lot of negative reactions, decided it was wrong to pull the wedding ads for having women kissing.  The whole thing is a self-own by the conservative group involved when the net response is this:
Hallmark said it would be "working with GLAAD to better represent the LGBTQ community across our portfolio of brands" and "reaching out to Zola to reestablish our partnership and reinstate the commercials."
Great news.  The network is by nature conservative though it doesn't lay it on thick as seen by the typical movie ending with the leads kissing.  There is a charming older (2011) film entitled Trading Christmas with one of the two couples (the woman is played by Faith Ford and is quite good; she is a widow)  actually making out during the film and regular views have a reason to be shocked at the whole thing.

The channel rarely has religious content though certain films do have it as a component of the film (one volunteers at a church related program, for instance).  So, someone who is liberal minded and not a fan of showy conservative material (sometimes on UP Channel, let's say) can enjoy the movies while admitting their problems (e.g., the lack of racial diversity as compared to Lifetime, which just last night had a black woman lead in one of those royalty romances that even on other channels nearly never -- know of one -- involve a woman royal in the lead).

But, conservative minded Christians in generally probably can comfortably watch the average movie.  OTOH, "controversial"[which the company first flagged the commercial] includes making a show out of being conservative.  So, especially with people already complaining there are not even any openly gay characters (one actor is openly gay in real life ... more probably ... but saw it referenced in an article), going out of the way to remove the ads was a bit much.  The ad was really a safe way to barely put its toe in the water (it does have gay and lesbian themed greeting cards after all) to reflect modern times.  Yes, someone would be upset but I'm sure there is something else in one of the movies to upset someone too.  And, thus the mea culpa.


A nice teachable moment that has potential to turn out positive in the long run.  Meanwhile, we have our normally scheduled football programming. Eli Manning had a promising first half last week but the offense came to a halt in the second.  It looked like it would be a problem this week to vs. the Dolphins, but it turned out it was the Dolphins due for a really bad day.  THIS time, the Giants found a way after halftime and the score turned into a laugher.  It is likely Manning's final home game as a Giant and we can look past the competition to be happy for him.  It is sorta also the team's only clean win (Tampa blew it at the end; the Redskins was a mess at the time, but the young QB and company was rather messy in the game too).  Can still play spoiler.

The Jets (TNF) ran into the buzzsaw of the Ravens, who even while up big go for it on Fourth Down.  The Bills had the Sunday Night Game and the "who it the QB this week" Steelers gave them a run for it, down to the end where a penalty gave them forty more seconds for a respectable shot (toss in a roughing call) but that rookie QB wasn't quite up to it.  So, the Bills are in the playoffs and have the most wins (10) in this century.  [They did get in once 9-7.]  SF was the upset of the day with the Falcons ("we aren't THAT bad!" run of games) having a TD reversed and a non-TD reversed to win at the very end (:02 left, SF fumbled the final play & the Falcons scored again!).  Dallas was sorta an upset but the Rams aren't that good.  Dallas/Eagles both 7-7.


SCOTUS. Well, as usual, the Friday grants were followed by more boring orders.  The five page job shorter than usual with the usual caveat that there are odds and ends that a key would help decipher and interesting cases not taken.  For instance, one of the cases denied cert. was "relisted," suggesting one or more justices found it interesting:
In an opinion that began with the obvious quote from Anatole France, the U.S. Court of Appeals for the 9th Circuit held that the Eighth Amendment’s prohibition on cruel and unusual punishment bars a city from prosecuting people criminally for sleeping outside on public property when they have no home or other shelter to go to.
Looking, it was written by and joined by two "controversial" 9CA judges with a "look at us" dissent when en banc review was denied.  The case, after extended procedural discussions, basically rely on a 1960s duo of cases that barred prosecuting drug addiction but allowing it for public drunkenness.  The first is a condition that could not be avoided and here without the means, so is public homelessness.  A related case was decided there in the past.  The Supreme Court has basically underenforced the provision in question, the cases basically all capital punishment in nature or involving minors (no mandatory LWOP) or prison conditions.  ONCE it held a non-capital LWOP punishment (and that 5-4) as unconstitutional.  It also had limited cases involving fines.

But, the other cases that leave open more coverage are still good law and it's good that it still can have some bite. A taking case is also flagged here. The Supreme Court might have some unscheduled order, but they are officially done for the year.

(Since the press release/media advisory/speeches pages are so rarely used, just to flag it,  a media advisory was posted last week regarding seating for a January 2020 oral argument in an important religious funding case.)

Update: Well, okay. So, SCOTUS did grant some cases on Wednesday, including a potentially fairly significant pair of cases to clarify the rules regarding applying employment discrimination rules in religious organizations like schools. 

Sunday, December 15, 2019

Book and TV Watch (FU Hallmark)

Graphic fiction and nonfiction is often a great medium and by chance found a very good book by Mira Jacob set around her talking to her son about race, the whole thing overall autobiographical. It is funny, touching, informative and the graphic style (the pictures are like cutouts) is cool. Not sure about her over 500 page fiction book though.

It is almost silly this time of year with Christmas movies (Lifetime actually had a cute half-Jewish one) with a bunch on Lifetime, Hallmark (multiple channels), ION (ditto), Up Channel and at times others. I watched bits and pieces, but have had some problem finding one I like. Maybe, a bit of overload; you start to recognize certain actors as regulars. Plus, I know it finds even kissing a bit too much even if movies (a kiss is often the finale), but Hallmark went too far bending to protests and taking down ads for a wedding company because women kissing is "controversial." They need more diversity generally; other channels make more of an effort to have non-white female leads, as a for instance.

"Teddy" from Good Luck Charlie, or rather the actress, popped up so I checked her Wikipedia page. And, you do find some interesting tidbits -- turns out she is Dr. Christine Blasey Ford's niece and tweeted her support when that all came out. From what I can tell, BM's mom is Ford's sister. Also: "Mr. Sheffield" IRL (and his wife) is great politically on Twitter too.

Saturday, December 14, 2019

SCOTUS Slow Walks or Justice Delayed is Justice Denied

Back in the day, in the days of the Burger Court, some things were too important to delay. The Pentagon Papers cases were handled within weeks, prior restraint deemed to important to wait. The Nixon tapes case was handled from grant to decision in less than two months (end of May to end of July; Nixon resigned in early August ... a few justices were fine with waiting to October).  These days a "rush job" means taking the re-argument of the Citizens United in September to handle it before the next election cycle started. Then again, the conservatives won there. 

Friday again was a news day with the House Judiciary vote for impeachment in the morning and at least one of the financial document cases were due for a decision. To remind, multiple committees in the House of Representatives subpoenaed financial records from Trump's accounting firm and two lenders while the Manhattan DA also sought the accounting records as part of a grand jury investigation.  So, we are dealing with third party business records here (including but not limited to his tax returns).

Trump claims "no legitimate purpose" for the first and that as you know cannot be investigated even in that way while in office.  The lower courts basically laughed at these extremist arguments that require him to be removed by impeachment even to investigate him for murder.  A Trump appointee big on executive power wanted House to have an official impeachment inquiry first and once it occurred noted that wasn't how the request was offered here.  The House noted delay could interfere with impeachment and if all it took was resubmitting it, the matter wasn't worth granting anyways.  (They should go ahead and do just that.)

But, the Supreme Court held up things and well it isn't really surprising they granted cert.  You had someone on Chris Hayes show last night be blase about the whole thing and suggest he very well might lose big.  After all, he lost before.  How exactly Mr. Person Who Should Know Better (it wasn't a clown; it was someone who should have known better).  ACA.  No, that wasn't him.  Census.  Yes, that was so blatant that one conservative justice (Roberts) was not willing to give him a pass, but even there, it was a limited loss.  Got anything else other than some denials of stays and such?  Another sane law professor type on Twitter also said it shouldn't be taken as a big deal.  Executive vs. Congress. 

The opinions below should be upheld in their entirety. They shouldn't have been taken at all.  But, at best, at best, one is being optimistic in saying that justice will have a partial win here.  It is completely proper for people not to trust the good faith of the Roberts Court (Kavanaugh Court) here.  Plus, as was pointed out on the thread (I'll avoid links here since he's probably representative) and by Josh Marshall (not always so passionate, but pissed off here), the delay is a major part of it.  The matter is clearly time sensitive. Impeachment counts were voted out of committee just that morning.  BTW, isn't Roberts sorta biased here given he would preside over an impeachment trial?  (I guess that came up in the Nixon tapes case too, but we have actual counts now, including obstruction of Congress, not there when that case was granted.)  And, the financial, intelligence and electoral security issues involved are of compelling immediate importance. 

And, instead of doing things let's say in January, the whole process can take six months or so.  Plus, it is likely not to be as if the judgment is "okay, release" either.  The aftermath is likely to be at least somewhat lingering.  It is like all these other lawsuits (one loses track, but a key subpoena DISTRICT court ruling was just handed down recently; multiple emoluments cases are slowly going thru the courts; the D.C. Court just asked for further briefing on standing or whatnot in the Mueller Report grand jury litigation etc.) just a long drawn out affair.  This is why "House Dems should just continue to investigate and fight things in the courts" doesn't wash for me unless you bluntly admit you are against impeachment.  It just runs out the clock unless you know he's reelected. People repeatedly sorta of ignore that. 

The subpoena of executive officials or even those who have left official service is an important part of legislative oversight. Over the years, the executive department has wrongly taken a strict view on the president's power to refuse to allow the people to testify. The issue was never ultimately decided by the Supreme Court and it would be nice if there was a clear word on it though on some level it is also a political dispute.  If each house has the will, there are ways to punish noncompliance.  And, I'm not really optimistic that this Court would decide the matter in the proper fashion.  But, these cases aren't that.  A local prosecutor is somewhat complicated but even there only financial records are being sought.  The absolute immunity sought is ridiculous.

The power of Congress to obtain the records is basic. It is part of the wider obstruction of Congress only somewhat covered in the second impeachment court that Trump is blocking it here. It is fucking outrageous. We have continual litigation to provide some, SOME, bite to the emoluments limits, but if Congress cannot even obtain records in part to address them, what is the point, really? But, this is not just about Trump specifically, but as as noted in a brief opposed to the stay a wider concern for the security of our financial institutions and the threat of foreign interference overall.  This includes interference in the 2016 elections and addressing the ongoing harm (see, e.g., Robert Mueller's testimony).  As the brief notes, citing the lower court ruling:
public’s interest in the Committee’s efforts relating to election integrity, national security, money laundering, and foreign blackmail were “of the highest order” and outweighed Applicants’ personal interest in “nondisclosure of financial documents concerning their businesses.”
Again, yes, it's reasonable (though far from too pessimistic to think otherwise) to think that the ultimate result here is some sort of win to sanity involving the extreme executive power claims raised here.  But, extremists have an upper hand on some level, since they ask for so much that even getting some (including more and more time) things is enough to worry.  This is a part of a wider whole too.  While Trump is obstructing Congress, electoral security legislation is being held up in the Senate.  One reckons at some point some sort of thing will be passed, but what it will entail is unclear.  And, some want the House to delay more, have more litigation, instead of impeaching. The fear it will be unpopular is dubious.  And, it has various positive effects too. 

Think big picture, hold firm .. impeach ... fight for our values. 


There is a sort of "also ran" quality to it, but other notable cases were granted along with the three, these more appropriately so.  One involved a dispute in Indian lands that split 4-4, a vehicle found to allow Gorsuch (Stolen Seat Guy) to take part.  Also, I'll just quote SCOTUSBlog:
In 2013, the Supreme Court ruled that the federal government cannot require recipients of funds to fight HIV and AIDS to have policies expressly opposing prostitution and sex trafficking. Today, in U.S. Agency for International Development v. Alliance for Open Society International, the Supreme Court agreed to decide whether the government can apply that policy to foreign affiliates of U.S.-based groups. Justice Elena Kagan is recused from the case.
Orders are due on Monday and I'll comment then. 

Thursday, December 12, 2019

Articles of Impeachment Against Trump

ETA: After the Republicans wasted our time all day, Rep. Nadler after 11PM pushed the actual vote (much to the Republicans' ire -- no complaints about "midnight impeachments") to the morning.  A quick session made it official and it was by a partisan vote (Rep. Ted Lieu is out sick) voted out.   

Meanwhile, litigation continues, including for emoluments and this article to me hits a basic point, including this bit: "He called them phony emoluments clauses,” [Judge] King shouted. “Two clauses of the Constitution written in 1787.”  The Trump lawyer (who I engaged with online and he was an asshole, not just using the typical conservative talking points but in a snotty/sarcastic way) wanted to handwave this as an off the cuff statement.  No, it's not.  It's typical stuff for him. And, why he should be impeached.  And, if the conservative thinks this should not be in the courts, fine.  Impeachment is not. Limit him SOMEHOW.

One more thing. We now have Sen. McConnell openly saying on Fox News that he will follow the lead of the Administration during the trial.  This is not surprising but we cannot simply sigh about it.  He's breaking his oath, the Senate not just a subsidiary of the executive department.  Every f-ing Republican senator that goes along are as bad.  Enough with this shit!

There are the counts (I'd toss in something about the media) that he "deserves" and the two that the House Judiciary actually crafted.  The articles (a short nine pages) are abuse of power related to Ukraine (key criteria: involvement of candidate in U.S. election, holding up of funds authorized by Congress, personal over needs of nation and enlisting of foreign power against our own country) and obstruction of Congress (blanket obstruction on said investigation). The House Intelligence Committee provided fact witnesses to cover the first while the second was addressed in to me somewhat redundant (at least the second day, covering the first count mostly) House Judiciary portion (law professors).

[Word of the day: contumacy, which is a stubborn refusal to obey or comply with authority, especially a court order or summons. As to complaints some Democrats were for impeachment early -- damn Trump for being a criminal since the early 1970s -- there's this bit of Republican history regarding Hillary Clinton.  And, for this general aside, RIP to a great character actor, generally a blessing, who I first saw as "Clayton" on Benson.]

Reports are that people like Rep. Nadler (he and members of his committee were ahead of the curve here from the Mueller days) wanted an obstruction of justice count related to the Mueller investigation. The compromise, which is important to note, is that both cases reference previous actions consistent to these two. I would have specifically spelled that out (maybe as a whereas or in its own count). Three counts for one thing might lead some members a way to "compromise" more themselves by splitting the baby.  Still, that important final kicker provides a means to bring up the Mueller Report and anything so related. It also to me is a very important flag (as Rep. Schiff et. al. noted) on why it was necessary.  It is not a stand alone thing.  The whole thing is sort of synecdoche, a symbol of a wider whole.

The committee is now debating them (so to speak), starting last night with statements from each member. The general trend (including one who is a gun control activist whose son was murdered) was to provide personal accounts (some quite touching) about why they decided to run for public office and argue they weren't there to impeach Trump. Fine with the basic strategy more or less, but do think 2018 was about checking Trump. This was in response to the general Republican tendency to make it some sort of partisan witch hunt about not liking Trump when not whining (that is the general tone) about alleged process problems.

It's hard not to be depressed, cynical and angry about the overall process here.  First, Trump is so clearly unfit and guilty of a range of things that should fit the constitutional grounds for removal.  I think Democrats after the Mueller Report was dropped should have set up a sort of overall impeachment inquiry, delegating things to the relevant committees, with Judiciary serving as the overall clearinghouse.  As necessary, things could be accelerated, just as many (including Never Trump types like Orin Kerr) thought that the Ukraine Extortion Racket matter warranted.  Still think that would have been a good approach and more would have been accomplished if that was done in appropriate fashion.

So, the whole thing has a feel of not enough.  But, you take what you can get there (so, e.g., Democrats are challenging the Trump obstruction in the courts, even if people raise the fantasy of arresting people and putting them in some sort of fictional House jail). The ultimate step here, after Trump was caught again interfering with an election, is impeachment. And, it is felt to be time sensitive since an election is coming up, particularly a primary/caucus that starts in February.  So, waiting months or just as likely the rest of his term (one wants to rest with the word "single"), and just to continue to investigate to me is a dubious idea. The investigations should still continue and maybe another impeachment vote if something turns up so blatant to warrant it (though we should act now as if this is it).

Then, there is the reality that Trump will be acquitted in the trial. I find no need to repeatedly say this as a stated fact in part since it helps to make everyone cynical and take it ("one rather it not be ..") as a given and feel resigned about Trump blithely doing bad things without limitations. It also seems worthwhile to continue to say that you actually expect Republicans to have some shame here as you do not simply assume as a given that a child will just continue to be bad. You expect it, but you at least in a token fashion assume facially that the child will be good.

Still, yes, the likely result is an acquittal and the best we can hope for (and this shouldn't be taken for granted) that every Democrat (except maybe the guy from West Virginia) will the right way and maybe one or more Republicans (Romney?) might actually for to convict.  Even not voting there might be something.  Also, we hope the whole trial will not simply be a sham, maybe not even being a trial at all but simply a vote.  The reality here is that Mitch McConnell heads the Senate and Republicans are not showing any sign of a spine even to the degree of admitting Trump did anything wrong.  And, hopefully this will cause some pain.

Impeachment is necessary as an answer by the people's House, Trump so much of a repeat offender that even Democrats wary of impeachment feel a need to vote for it. One party is acting like it is okay and this is depressing as a matter of public well being.  But, you need to keep on fighting and support those who are fighting the good fight. Like some of the great members of the Judiciary and Intelligence committees that balance some of the clowns on the other side.  It's a long haul process. No Biden!

Wednesday, December 11, 2019

Execution Watch: Travis Runnels

This is the last scheduled execution this year (the federal ones held up by appeal) and on the same day the Supreme Court will deal with the proper mitigation factors to consider in a case prosecuted back in 1991.  It is unclear from the summary why basic principles (settled in the 1980s if not before) did not prevent this sort of thing. But, by now, it is not surprising that something fell between the cracks and now we will hear "why should be delay things even further?!" sort of arguments probably as usual.

The Order List on Monday included two statements by Justice Sotomayor regarding her concerns in two murder cases, one involving material given to the jury and another touching upon a scandal in Louisiana alleging mistreatment of habeas appeals. A suicide being involved juices up the details some for sure.  Otherwise, the orders were standard stuff and as usual the one grant (an interesting electoral law case) was made separately in an order at the end of last week. 
"It would be a travesty to take away his life when he is the epitome of what a changed man looks like," reads one of the 29 letters included in a clemency petition submitted to the Texas Board of Pardons and Paroles on Nov. 13 by Travis Runnels' attorneys. They ask that Runnels' execution, scheduled for Dec. 11, be halted and his sentence commuted to life in prison. The letters come from friends and family members scattered across the U.S. and Europe and describe him as "repentant," "reformed," "loving," and, especially, "changed."

No one would have used those words to describe Runnels on Jan. 29, 2003, when he was several years into a 70-year sentence for armed robbery. That morning, on the way to his shift at the boot factory in the Clements Unit near Amarillo, Run­nels told a fellow inmate he was going to kill his supervisor, Stanley Wiley. Arriving at the factory, Runnels took a knife used for trimming leather, slipped up behind Wiley, and slit his throat. As Wiley bled to death, an inmate asked Run­nels why he'd done it. "It could have been any offender or inmate, you know, as long as they was white," Runnels replied.
This is one of those "worse of the worst" scenarios: murder in prison. But, even here, over fifteen years later (if medium-range as far as these things go), there are concerns.  The forty-something murderer here is argued to have changed, which occurs even for murderers though even granting this redemption might only get you so much.  Perhaps, it serves justice and his own morality good to find some sort of peace before getting "just deserts" for his crimes.  Someone angry at his work detail or even the usual pettiness of employers (inside and outside at times occurring in seriously bad ways though it's unclear how much of that was here) murdering someone in prison, an inmate already with behavior problems there, is not an ideal suspect here.

Some cases are easier than others but even the easier ones are not simply some grave miscarriage of justice akin to someone innocent or blatantly unfit for execution.  I find the death penalty very problematic and am quite willing to say that it doesn't take me much to find a reason to determine it is not warranted in any given case.  This doesn't require me, especially as not an advocate for the defendant (it won't always even help), to sugarcoat. There are arguments both ways and by now they are readily made.

His possible redemption does suggest -- since we should lean toward life especially given the flawed nature of the state death penalty -- a reason for the state to not execute.  It provides incentives to others to have good behavior.  Runnels no longer is treated the same as what someone in there for a long robbery charge (70 years in his twenties?).  This is a major hook of his defense -- someone already found to have tainted execution determinations in the past is argued to have misstated the danger of detaining him.  It also appears that at some point some argument was made that his representation was flawed in part because proper mitigating factors (such as his background) was not raised during his sentencing.  At the very least, not doing so made the flawed expert that much more important.

(I can toss in here that while in prison he wrote to short books: Guidance On Navigating The Path To Love and How to Survive in Prison: A Guide for Prisoners, Their Families and Supporters, available on Amazon.)

I will likely still talk about executions and other death penalty matters, including the federal execution appeals, in 2020 but will stop with this more "deep dive" approach.  I don't know if there was any special lessons to be found here really and it has a depressing element.  But, I think I appreciate that I did it and the small sample made it more possible.  My general sentiment remains -- the strength of my opposition in any specific case is not really equal but have not found one really compelling case for which execution is really necessary.  This does not surprise given the few jurisdictions world-wide that actually has the death penalty.  Either way, Runnels was executed by Texas with no recorded dissent. And, thus, hopefully, the machinery of death closed for the holidays.

"Trump Targets Anti-Semitism and Israeli Boycotts on College Campuses" [NYT Headline]

President Trump plans to sign an executive order Wednesday that defines the Jewish people as a nationality for purposes of federal civil rights law, an effort to step up enforcement against episodes of anti-Semitism on college campuses, two administration officials said.
This news resulted in an uproar suggested by some of the comments at this blog (the NYT article that first announced it is linked there). The main post highlights the concern that it will interfere with free speech. As the NYT article (both articles are helpful to provide context, so I link both) notes:
The order will effectively interpret Judaism as a race or nationality, not just a religion, to prompt a federal law penalizing colleges and universities deemed to be shirking their responsibility to foster an open climate for minority students. In recent years, the Boycott, Divestment and Sanctions — or B.D.S. — movement against Israel has roiled some campuses, leaving some Jewish students feeling unwelcome or attacked.
Just to toss it out there, the Education Department already broadly interprets the rules here, so (as is usual with these executive orders from the Trump White House) the true reach, apart from symbolism, of the order is unclear.  Anyway, there really is antisemitism out there (or discrimination against Jews, for those who want to generally coyly say others are Semites), but at universities specifically, there is a lot more baggage involved here.

Note the usage of "some" as well. As the articles note, this splits Jews and others, thus various Democrats have support this.  As noted in a reply to my blog comment, this doesn't mean it is a good thing. Democrats support misguided things.  It just shows the complexity involved here. The fact an official statute to put this into law was rejected is also notable to some significant degree but does not settle things. Using "sex" in federal civil rights law to cover sexual orientation and gender identity can be correct even if new clearly phrased law covering them has yet passed.

We are right to be wary that Trump supports this, including given comments he made that are antisemitic, putting aside things like saying white supremacists are good people pretty clearly does that too.  To be clear, the idea here is that existing law does not cover religion, so there is a need to use "race" and "nationality" to do so. Cases like Shaare Tefila Congregation v. Cobb already have treated Jews as a "race" as applied to an old civil rights law.  In theory, the very concept isn't horrible. So, supporters can again show various people (including Obama) who have supported some form of the reported executive order.

But, various Jewish people (including those I respect on Twitter) being appalled is a serious red flag. The basic sentiment: I'm an American, damn you!  Treating Jews as others has historically been a serious problem and this is seen by Jews and others as a means to label them not American but "Jewish" as if that is akin to being Italian or something.  Like Muslims, Jews come from variety of nations and Jewish Americans are just that: Americans that are Jewish.  Though for some the reason might be benign, pursuant to existing law, the message sent is dangerous.

The complexity of things are helpful to understand but this doesn't mean they are benign and dismissive in simple blunt terms.  Both can be true and this seems to be such a case.

[Updated from here on.] The Washington Post, which followed the other's lead, cited two administration officials as noted in the opening.  A Slate article, first taking the first article at face value, had a mea culpa, putting the blame on one paper.  But, any mistake here -- and it is a mistake to assume before you see executive orders since as I said Trump's orders repeatedly are of marginal importance -- was shared. There is a general teachable moment here that outrages often are a bit more complex when you deal with the specific details. Also, raw data can be risky.

The order is linked in the article. It notes that "religion" is not specifically covered but in specific cases discrimination against Jews can also fit into the existing categories.  Concerns about free speech are to be weighed and the First Amendment not violated.  And, further study to be made and the findings reported.  Also, a nod to concern for antisemitism as much as anything else. In general, the whole thing sounds bland, like any number of his executive orders.  Whatever the paper was told.

I'm wary.  It very well might be that some "draft" had more and the negative feedback resulted in the more weak language. Maybe not. The general background, including legitimate protest (even if you think the boycotts etc. are bad on the merits) being targeted very well might still be something to be wary about given the messenger.  Who knows exactly what happened.

(The order is officially up and overselling it brings the usual reactions.  For instance, the text holds that antisemitism should be determined by "considering" various things including hatred of Jews and Jewish institutions, which literally can mean opposition to let's say their settlements. But, that by itself would not mean discrimination by "race" or "national origin" unless one selectively does so only when Jews are involved and do so in a way no only involving protected speech.

One can see how that can be misused but what does the order add to what was already there? Thus, the op-ed cited appears overblown especially given existing law. We can't have people both saying "nothing to see here" and now say that this is some big move on Trump's part. The spin is part of the point though.)

And More ... 

The White House put out a fact sheet on the executive order that is mostly a matter of bona fides regarding the Administration's fight of antisemitism and "confronting hate" (while not inflicting it, including petty potshots at the teenage girl chosen as the person of the year by Time).

But, it also specifically labels as "antisemitic" the Boycott, Divest, Sanctions (BDS) movement and calls out "18 Democrats" for supporting a resolution supporting it.  The resolution (in response to one voted on by over 300 members against BDS), co-sponsored in part by John Lewis, is one that generally supports the right to protest (citing various examples, including against Nazis, that is the "comparison" cited in the "fact" sheet).

The fact sheet is basically symbolic since it is basically an executive signing statement, if that, so should not have much legal effect as compared to the actual executive order.  But, it might have some informative effect, let's say, when people carry out the official order.  It also shows that people concerned that the order is really a backhanded slam on free speech and protest were not really too wrong even if the whole Judaism as a nationality thing was somehow confused.  The headline is on point.

Tuesday, December 10, 2019


The first non per curiam opinion of the Kavanaugh Term was as usual a technical matter, this time a 8-1 (Sotomayor added a thought, RBG had a partial dissent) Thomas deal involving a federal debt law. Also as usual, these cases have important implications. The professor there yesterday argued the opinion wrongly hurt consumers with an overly strict view statute of limitations in bringing a suit there. The SCOTUSBlog summary argued it was rather atypical. [On Wednesday, a unanimous opinion by Sotomayor on patent attorney fees was released.]

I'll say more about Sotomayor's statements tomorrow, but Monday's Order List also was generally uncontroversial too. Somewhat interesting footnote: the Court turned down an original jurisdiction request (state v. citizen of another state), without comment (the defendant argued bankruptcy rules made the request unnecessary) involving an opioid related lawsuit. The liberals probably also breathed a sigh of relief an ultrasound law (abortion) was not taken given the likely negative result (the dissent below was correct). As usual, various procedural moves would warrant a helpful FAQ code manual.

Meanwhile, I saw The L Word: Generation Q on Sunday. It was nice to see three (favorite is dirty mouth Alice, nice with an edge) of the old cast. Some of the new cast seem to have potential. Multiple bits of breast revealing sex seemed a tad gratuitous at some point. Will watch another episode. Agree with one review it does have a "people with money" favoritism.

Monday, December 09, 2019

NY/NJ Football Update

The Dolphins hit seven field goals but that missed one (bad snap) cost them. 22-21. Well, repeatedly not scoring in the red zone helped. Plus, being conservative at the end and then giving the Jets a gift long play to begin the final drive. So, you know, okay. But, the reversal on replay on something that "looked" like interference (the test is clear error) on fourth and long is annoying. Pissed off the Dolphins head coach (his yelling at the officials at the end of the game might get him a fine). And, really, the Jets head coach losing twice to his old team would have served him right. Pats losing was nice though. Bills played Ravens tough.

Bears beat Dallas on Thursday, leaving Eagles (again) a chance to be tied for first late. Eli was back to face them on Monday Night (the other guy has an issue but the noise is that the real issue is that Giants needed get out of their funk). Well, he had a good first half. Up 17-3. Okay. 17-17 for a final two minute drill! Um. Would you believe OT? No. Didn't get the ball. Eagles win 23-17. Tie breaker broke, Eli and Giants (match-up with Eagles) under .500 now.

Sunday, December 08, 2019

Privacy: Two Examples

I have written much here on the constitutional right to privacy, which is still sneered at by some as a general concept, including how it was honored in various ways before Griswold v. Connecticut. One example would be when official bible reading in public schools was struck down as unconstitutional and repeated reference was made in multiple opinions on the "private" nature of religious beliefs and practices. It is one of various good opinions by Justice Clark, perhaps the only worthwhile Truman SC appointee and basically a conservative.

A matter of privacy rights came up when a Republican asked the impeachment witnesses last week if they voted for Trump. An election law professor noted there is no constitutional right to have a secret ballot though I would add that statutorily that is the case. Various cases back to the 19th Century honored some sort of "private" zone against congressional investigators. Watkins v. U.S. (1950s) broadly speaks of that. And, who you voted for would generally seem to be covered by its principles. They refused to answer that.

The "legitimate public purpose" test overall implies a protected private zone and both enumerated and unenumerated rights so secure. "Privacy rights" is a catchall.

Impeachment Update

Early this year, I was concerned the Dems were slow-walking or even bad mouthing (don't gaslight me, ma'am) impeachment, but now there is talk (even from Chris Hayes! though he admits it's sorta a no win) of them "rushing" it. I shake my head when I'm not hitting in on the desk. I fear the impeachment grounds will not be detailed enough (we have media threats such as this that are what, also rans?). But, the latest thing threatens the 2020 elections and having a trial in the middle of the primary season seems dubious.

The House Judiciary Committee Staff put out a helpful fifty or so page guide to impeachment. The House Judiciary Committee put out a 300 page report on the Ukraine Extortion Racket investigation with a helpful summary. Comments I have seen about the process in the Judiciary vaguely speaks of other investigations. Well, there are multiple ones. The guide itself brings up emoluments in general as a constitutional concern as well as abuse of the pardon power. Judiciary, which has open-ended power here (cf. intelligence with more limited concerns), needs to at least cover in some fashion all the ground here.

We have a "non-publican" [the label fits but dubious on the details there] occupant and at least need to use existing means to address him.

Thursday, December 05, 2019

Execution Watch: Leroy Hall

Summary of Offense:
At around midnight on April 16, 1991, the defendant threw gasoline on the victim, Traci Crozier, his ex-girlfriend, as she was lying in the front seat of her car. The victim received third-degree burns to more than ninety percent of her body and died several hours later in the hospital.
Hall was sentenced to death on March 11, 1992.
As an opponent of the death penalty, I'm not going to be johnny one-note and merely talk about possible innocence or racism or the like. It is readily admitted that some of these people committed really horrible crimes though that's a mixed bag (e.g., someone who murders someone during a robbery should get a long prison sentence, but the death penalty should have a higher test than that).  This is a horrible crime -- that extra bit of torture is the sort of thing that will get you a death sentence.  It won't surprise that she was an estranged girlfriend.  The link provides a picture of the victim.

But, the death penalty is still bad policy and overall applied in an unconstitutional way.  My year long deep dive (again, only so much; don't claim some deep knowledge of these cases though more than most who just glance at the facts) have brought up various issues. One (specifically addressed by Justice Breyer these days) pops up here: a long time on death row is problematic since the legitimate penal purpose is greatly altered by that point and there is a basic cruelty (often involving solitary confinement) involved.  This latter concern tempers the Pollyanna sentiments in certain Supreme Court opinions about the positive path of death penalty development.  Why execute him after nearly 30 years?

It is sometimes hard to have sympathy for certain people -- we see this with online trolls -- but note that the alternative here isn't releasing the guy (though thirty years is a pretty f-ing long time), it is not executing him to continue a greatly flawed system. For instance, looking up articles on the guy, one flagged he is now legally blind.  He is only in his early 50s, but people do die before then (a few years back, I found out a former family friend died in her 40s; long time back, a friendly co-worker died in his 30s) and life in prison isn't great for one's health.  There is a certain "really?" feel to executing a blind man though if you say that people will remind you what he did ... back when dial-up Internet wasn't even quite a thing. 

There is also likely to be some sort of procedural due process concerns that pop up on various grounds.  For instance, this opinion flags concerns over expert testimony.  The usual approach is a kitchen sink one though eventually something specific stays around that seems to be particularly strong.  One problem flagged is that there is a tainted juror:
Attorneys for Lee Hall say they have found a woman — simply known as “Juror A” — who now admits she failed to disclose during Hall’s jury selection process nearly 26 years ago that she had been repeatedly raped and abused by her former husband.
Why did it take so long?  How strong is this argument? As these go, the facts tend to be mixed, some arguments stronger than others. This factors in when balancing equities, including laws that limit time to make certain types of challenges. The woman's feelings on her experience changed over time and early in the appeals process the resources to even find her was limited.  The article provides some remarks from family members, including mention that they think an execution might serve some sort of closure.  Feelings tend to be mixed there.  And, I have repeatedly found cases where families do not want an execution.

Leroy Hall (a few articles note he dropped the "Jr.") has chosen to be electrocuted, which is sorta still a thing in Tennessee.* Hall was part of litigation challenging the state's lethal injection protocol, which Sotomayor flagged (opposes the need to find a safer alternative before you can even challenge a method test and the secrecy in place that makes it hard to obtain information there) in the past.  I had an extended discussion on the most recent case there (Bucklew), made harder since Gorsuch's opinion was trollish.  But, if you go to page thirteen, this does pop up:
It teaches that where (as here) the question in dispute is whether the State’s chosen method of execution cruelly superadds pain to the death sentence, a prisoner must show a feasible and readily implemented alternative method of execution that would significantly reduce  a  substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason.
Earlier, Justice Alito in passing denied that the procedure at issue was like "burning at the stake" so the full test was not pressed.  And, even in the last case, the opinion refuted there was really a problem.  But, the rule is horrible: if an execution method really is cruel -- and cruel means of punishment is surely a core purpose of the clause -- it is cruel even if the state cannot "readily implement" an execution otherwise.  The syllogism that the death penalty is constitutional so the state has to have a means to execute falls apart with scrutiny.  Imprisonment is constitutional. If for some reason the only prison was freezing cold and filled with vermin, it would not be constitutional to put the person there.

Meanwhile, while Barr serves as Trump's consigliere and rants about conservative talking points such as at the Federalist Society, he also brought back the federal death penalty.  A few executions were scheduled this month with one held up because of claims racism tainted the proceedings. The others were held up because a federal district judge found a federal law required the people to be executed the same way as the state law in question (if the state had no death penalty, as occurs once here, the court is to designate a state).  The opinion appears well written. The government wants the Supreme Court to lift the order, skipping the court of appeals.  The rush here is unclear -- want to execute for holiday season? It seems something that will be handled somehow though perhaps one hopes for the clock to run out.

[A former AG of Ohio -- executions are on hold there because of concerns with the means of execution -- had a powerful op-ed against restarting the federal execution process including flagging problems with the specific people chosen to be executed.  I'd add now as well that on 12/6, the Supreme Court -- while saying they trust it will handle with due speed -- rejected the rush request.  Alito (with Gorsuch/Kavanaugh) agreed but underlined they think the government clearly should win. So basically said "don't try so hard, not really necessary."  So, that is on hold for now.]

That last part might be the real concern though another thing to ask is why did the feds not just follow the procedures for each state?  I guess a deep dive there might find it would be complicated to do that since you have special rules for each case, instead of one federal rule.  And, one rule very well might be good policy.  But, that isn't the law in place.  There is also a claim made that maybe the federal rule will be better than some specific state law -- for instance, see above with the concern over certain lethal injection protocols.  That too might in theory be true though the feds making the argument leads one to be cynical.

Without comment, including from Sotomayor (TN is in her circuit), his final appeal (related to the bias issue) was denied.  He was executed. With the fed cases held up, there is one more execution scheduled this year.


* It seems a tad striking that we still have electrocution -- struck down as unconstitutional by Nebraska in 2008 but never fully addressed by the Supreme Court since the 1890s --  but it is allowed for crimes committed there before 1999.  For a variety of reasons -- rarity, threat of pain, brutality generally -- a good case can be made it should not be allowed.

We will have to wait for that nitrogen gas opportunity but "old Sparky" is apparently still a thing. 

Wheeler goes to the Phils

I continue to wonder what the Mets would have gotten in return (for the guy obtained via a Beltran rental) even if he was traded last summer. So it goes. He went to the Phils for five years/118M, which seems a bit much, but who knows. The Mets replaced him Stroman, a comparable arm. So, they need a Vargas replacement really. It's okay though a bit upsetting he went to a rival. Let's fill in some other holes and probably Lugo is better in the pen.

ETA: And, they basically found a Lagares replacement.

Tuesday, December 03, 2019

Some Books

By chance, I found The Parting Glass, which takes place in 1830s NYC and involves some forbidden loves (across class and gender lines)  mixed with some politics and a bit of other stuff.  The narrator is in her early twenties and had to leave Ireland (with her twin brother) after being caught having an affair with a maid.  They find work in a rich widow's home, him in the stable, she as the daughter's maid.  More drama ensues. Pretty good.

Teaching When The World Is On Fire is a collection about teaching students in our troubled times (sections of politics, safety, race, gender/sex ed -- too short -- climate and culture matters).  I think it is bit too race focused (the race section -- other chapters also involve race -- is about a quarter of the book; the gender/sex ed is less than half as long), but it has some good material.  I read about half the chapters, skimmed over the rest.  The book does invite that.  A good chapter is a later one where a scientist who decides to teach has problems with climate deniers.

The essays start with a chapter by Bill Ayers, who is an education specialist now, but has a controversial past (that many readers probably are not familiar with) given his 1960s activism.  He has four lessons: each student is a three dimension human being, we need to learn how to live together (via an environment guided by honesty, dialogue, critical questioning, fairness and recognition, not monologue, management, control, or punishment), wherever racism exists we resist and "in everything we undertake we foreground the arts of liberty -- imagination and creativity, initiative and courage, compassion, ingenuity, and enterprise -- as we work to expand the agency of students, and generate transformative possibilities for all of us."

T. Elijah Hawkes taught a restorative justice class, working with students to improve the school disciplinary system and school-to-prison pipeline.  He set up some basic rules. (1) Make the extra-curricular curricular.  [School day as whole.] (2) Ask a big question [to welcome more people, cover broad topics -- moral, ethical, personal and/or political questions].  (3) Involve people with positional power. (4) Establish trust. [One mic, let people talk; avoid absolutes; use "I" statements & acknowledge others who do] (5) Engage in inquiry. (6) Connect with cops and community.  (7) Become informed and qualified. (8) Value the faculty's perspective.  (9) See the unconventional success.

Mica Pollock has a chapter on "Standing Up Against Hate."  She starts with three responsibilities for educators: stand up against hate and intimidation, so schools are safe for learning; engage the facts and protect the right to learn.  H. Richard Milner IV offers ten tips to help race and politics be discussed in the classroom.  A basic rule is to have diverse perspectives and views (including understanding your own) which involves the students drawing from a range of sources in researching as well.  The teacher can use current events as launching points and be able to address the concerns and needs of the students.  And, talking  and collaborating with parents, community members and school administrators.  Dale Weiss joined with two students to address gender/trans issues.  And so on.

A book on books was not interesting. I will continue with a couple more, if they turn out to be interesting.

[Okay]  Lady Tigers In The Concrete Jungle is a good book -- it's about a softball team in a struggling school in the South Bronx.  Some details on changed for privacy, but these people have some tough shit (the language at times is blunt) to handle, both the coach and his players.  The book suggests the value of sports and other group opportunities as a matter of teamwork, believing in one's self, a goal that can further other ones (want to play? do your schoolwork) and just something to do (life at home was not great for many of the girls).  Some are not a big fan of sports but it's best to look at them in a wider sense.

The events took around four years ago but (with some pictures so people know who they are) we learn some intimate stuff about these girls.  The success of the team and the empathy of those involved in a "concrete jungle" is reassuring in these times. Enough real life too to give it that Bronx seal of reality.  Be curious to learn more on how she got the material especially all the detail.  Overall, you have a sort of can't miss story with some bite and good writing and detail.  Plus, "Dibs" is a great sports writer name.

Monday, December 02, 2019

Football/SCOTUS Update

I guess (helped by Andy Dalton getting another shot from the Bengals) all that praise made the Jets losing to another 0 for the season team [this time being embarrassed] was to be expected. Giants, now officially eliminated, losing to the Packers (it was close for a while) badly was surely. Redskins had an upset and are ahead of them now in the standings. Pats lost to the Texans. Chargers didn't go for it on 4th and inches and lost in regulation anyway via a PI call. Losers find a way to lose. Eagles blew it too, Dallas giving them a prime chance to be tied with them with an easy schedule remaining. Guess Dolphins aren't tanking.

There is an important health insurance case next week that should not be lost in the shuffle, but really the December Sitting at SCOTUS is a bunch of also rans (again, in comparison) and the New York City gun case. Which early reports (as it should have already) suggest might be declared moot. I refer to my comments here and SCOTUSBlog. Should have video.

Sunday, December 01, 2019

Holiday Displays and Wider Questions

This pattern is a testament to the Lemon test’s shortcomings. As Establishment Clause cases involving a great array of laws and practices came to the Court, it became more and more apparent that the Lemon test could not resolve them. It could not “explain the Establishment Clause’s tolerance, for example, of the prayers that open legislative meetings, . . . certain references to, and invocations of, the Deity in the public words of public officials; the public references to God on coins, decrees, and buildings; or the attention paid to the religious objectives of certain holidays, including Thanksgiving.” Van Orden, supra, at 699 (opinion of Breyer, J.). The test has been harshly criticized by Members of this Court, lamented by lower court judges, and questioned by a diverse roster of scholars.
The [2019] result was a given though it seemed off to some who were not strict about such things -- a forty foot cross, owned the Maryland, honoring WWI  dead had a certain Christian flavor to it.  The cross was originally built shortly after the war, but turned over to the state in the 1960s.  A Gorsuch might Scalia-like wonder about line drawing, but that is surely old enough for the plurality's (via Alito, who now seems to be the go to for religious cases if he has the majority; see, e.g., Hobby Lobby) new test regarding a "presumption of constitutionality for longstanding monuments, symbols, and practices."  The rough categories in the opinion (the many cases split around six ways) included holiday displays here.

Another WWI cross, if not quite dominant and in an isolated location, was the subject of one one now Justice Kagan's arguments as solicitor general.  The issue there was the legitimacy of a special land transfer to private hands (if with conditions that caused the dissent to blanche) but Justice Kennedy's plurality made the things clear: a longstanding cross used as a war memorial (as compared to one on top of City Hall) would be deemed acceptable.  Breyer dissented on limited grounds, but made his feelings known in Van Orden (involving an old Ten Commandments monument).  Toss in Kagan as a natural born deal maker here, we are left with RBG and Sotomayor in dissent.  Alito  sounded like Breyer at times:
Where monuments, symbols, and practices with a longstanding history follow in the tradition of the First Congress in respecting and tolerating different views, endeavoring to achieve inclusivity and nondiscrimination, and recognizing the important role religion plays in the lives of many Americans, they are likewise constitutional.
Breyer favors balancing tests that promote certain purposes and those (see again the Ten Commandments case, for which he provided a fifth vote while not joining the four conservatives' more open-ended support of religious monuments deemed acceptable for promoting general messages, Scalia not quite getting his way there for thinking Ten Commandments monuments can be a means for state endorsement of monotheism)  criteria overlapped his concerns. Breyer also felt avoiding religious divisiveness was key here and going after old monuments here seemed to him not worth the controversy.  OTOH, he dissented in a school voucher case just for that reason.  Thus, Van Orden was 5-4 even with O'Connor (in the majority in the voucher case) voting with the liberals.

The opening excerpt suggests the line drawing that is involved here, but is not only found in Establishment Clause cases. Speech cases involve a myriad of categories and rules, the clarity of some basic rules (involving viewpoint discrimination and the like) holding up to some degree, except when they do not. Some single test, such as the one taken as bitterly by some as the fruit, is not likely to hold up without some creativity.*  The test concerned secular purposes, primary effects and entanglements. Valid concerns in the mind of many (e.g., free exercise concerns arise if the state interferes too much with religious institutions) but ah line drawing.

Like those who oppose obscenity law, there are some who oppose various things cited in that opening paragraph, at times labeled "ceremonial deism." I am there really though public officials in speeches using religious imagery and having holidays with some religious components (which might be tricky; see below) is not the same thing as having a national motto (at times over a judge's bench) honoring a deity. My Thanksgiving entry this year referenced early controversy here. Some argue people who oppose official endorsement are anti-religious, but back in the 1950s, in dissent of an opinion ironically (given his later tendencies) written by Justice Douglas that blithely spoke of not being too absolutist here because our institutions presupposed a Supreme Being etc. (a somewhat unclear statement) etc., Justice Jackson noted:
As one whose children, as a matter of free choice, have been sent to privately supported Church schools, I may challenge the Court's suggestion that opposition to this plan can only be anti-religious, atheistic, or agnostic. My evangelistic brethren confuse an objection to compulsion with an objection to religion. It is possible to hold a faith with enough confidence to believe that what should be rendered to God does not need to be decided and collected by Caesar.
The issue there was release time where public school students either could stay in school or go to religious exercises off campus, the matter for three justices turning on the location (off campus as compared to on).  The issue soon was school prayer, but even one of the three dissenters there ("no" means "no" Justice Black, who repeatedly found exceptions) dropped a footnote that became a bit telling in this field:
There is, of course, nothing in the decision reached here that is inconsistent with the fact that school children and others are officially encouraged to express love for our country by reciting historical documents such as the Declaration of Independence which contain references to the Deity or by singing officially espoused anthems which include the composer's professions of faith in a Supreme Being, or with the fact that there are many manifestations in our public life of belief in God. Such patriotic or ceremonial occasions bear no true resemblance to the unquestioned religious exercise that the State of New York has sponsored in this instance.
Engel v. Vitale and another case involving reading bible verses in school was accepted by JFK, who had his own issues -- Catholics once upon a time seen as somewhat tainted (some feel that way today given the Supreme Court is controlled basically by five of them, of the conservative sort, a lapsed Catholic from the Bronx deemed not worth counting). Then, there was a bunch of cases where they had to figure out what is and is not okay funding wise. Early on, basically it was books and maybe some sort of vouchers to parents or adults like a  blind person who wanted to get a religious education.  The rules loosened and recently even not providing funds given stricter state rules was deemed unconstitutional. The breadth of that development might come out in a case this very term.

What are these "manifestations" that are okay?  Justice Douglas, now more of a gadfly, noted in passing the then relatively new "under God' in the Pledge of Allegiance.  Whenever line drawing cases arise, be sure someone will bring up cases like that or "God Save This Honorable Court" said by the court crier or religious statements on currency and so forth. The tendency is to either label them as "patriotic" (well yeah; religious establishments tend to be -- they are government pressed after all) or trivial as a matter of what should be labeled as unconstitutional establishments. The longer this is done (see, e.g., chaplains at legislative halls), the more firm it is seen as acceptable.  The separatist is left to pick their spots.

The peace cross opinion underlines that there are limits even here. Justice Scalia in a school prayer case oral argument (Lee v. Weisman) spoke of non-coercion and nonsectarianism though in his view merely honoring God isn't really sectarian and a religious invocation ceremony at school graduations or football games aren't really coercive.  Scalia was in the dissent in both those cases, Kennedy (who at times showed his anger at what he saw as anti-religious separatism at times) writing the opinion in the first one.  When Kennedy wrote the controlling opinion in the latest town meeting legislative prayer case, he tossed in some limits regarding proselytizing and tolerance though once you start allowing prayers, it's hard to really be totally neutral (Justice Kagan's strong dissent also challenged the rules as applied).

There are various shades of gray here and doing a deep dive here, including checking out various lower court opinions, surely underlined the point. Take the 1980s legislative prayer case, Marsh v. Chambers, which held chaplains (even using one of the same faith for years) was a historical exception to general rules in place in this area.  The court of appeals ruling cited a 1970s case in that circuit that sounds like the much more recent case with Kagan's strong dissent, this one "involved a county board's practice of opening each of its public meetings with a prayer offered by a local member of the clergy."  But, the court of appeals noted differences -- now there was a single paid clergy member, of one faith for an extended time, with the sermons printed and handed out.  A person might find that first case bad too, but (see Stevens' dissent when it reached the Supreme Court) that single clergy member alone was a red flag.  It seems to favor a specific faith in a significant fashion.  The funding is also a traditional red flag.

Justice Kagan, and I noted here that some didn't like this, accepted precedent but noted the New York town's policy crossed the line in certain ways.  Scalia would not support "In Jesus We Trust."  The peace cross case, at least for now, separated longstanding practices from new ones.  And, like Kavanaugh noted in oral argument, local policy might be stricter too. This in fact is a bit of a wrinkle in this area as shown in the referenced upcoming case.  Missouri, e.g, has a strict separation policy in its state constitution, and it led it in the 1970s to not want to allow religious groups to use the same resources at the state university.

The Supreme Court 8-1 (Justice White alone dissented, consistently applying his stance that lines aren't as strict as precedent held -- more funding was allowed, but also states had some more discretion to withhold it too)  held this in effect a violation of free speech without any establishment requirement to justify it all.  A couple judges below, however, flagged that stricter state constitutional rule.  I think Justice White's path respectable though in some cases think he would allow to much mixture of church and state.  If we do allow vouchers, e.g., states should be able to hold back money because of stricter rules.

This might even be said to honor original understanding, the First Amendment in place to allow state discretion (the Fourteenth Amendment does complicate). Shades of local gun regulation, to allude to the first week of December gun regulation oral argument.  Federalism is a tricky business though as seen in a variety of contexts.  A pair of Christmas display cases, one that dropped out 4-4, turned on the ability of a locality to have special rules for religious displays (other cases popped up in school cases, involving clubs, presentations and fees for religious publications) in what was argued to be some sort of "public forum" that normally could not be denied based on viewpoint.

I'm with the district court opinion in the Scarsdale case from the early 1980s involving placing a creche in a public park.  The message sent is that the locality endorses it (a religious symbol honoring a miraculous event of a specific faith) and that is really why the people behind it wanted it there. This is not a demonstration where a sign or symbol is clearly that of the person there.  Some sort of disclaimer, to the degree anyone sees it (the bigger the display, the more trivial that is -- consider some sign next to a forty foot cross while people drive past it) is of limited value.  The judge in fact thought a disclaimer was a triviality next to the wider message and resisted courts needing to draw fine lines there.  At least, let the locality decide as was done in a 7-2 case involving using a general scholarship to fund being a minister.  There (Locke v. Davey), a state could say "no."
When a city so openly promotes the religious meaning of one religion's holidays, the benefit reaped by that religion and the disadvantage suffered by other religions is obvious. Those persons who do not share those holidays are relegated to the status of outsiders by their own government; those persons who do observe those holidays can take pleasure in seeing the symbol of their belief given official sanction and special status.

Fox v. City of Los Angeles (Cal. 1978)  [Easter/Xmas cross]

A creche case (involving direct state sponsorship) from the Supreme Court intervened, it was allowed 5-4, and the court of appeals determined this meant even the stand alone creche (privately provided) was allowed. If the locality wanted, they could allow no freestanding displays at all, but it could not only deny religious ones like that.  In the mid-1990s, even in "capitol square," the Supreme Court 7-2 (and an eighth suggested she might go alone with better facts) held that public fora is public fora, even if someone wanted to leave a cross.  A disclaimer and/or a special area specifically marked as private displays (thus stated a deciding three) would handle establishment fears.  I'm with Stevens' dissent, but at least would allow discretion.

That creche case involved a creche mixed with other Christmas things and was in a shopping area so it was not quite clear -- especially with other cases that seemed to be more strict in tone generally -- what was allowed. Justice O'Connor joined the majority but had a separate opinion with her "endorsement test," which basically became sort of the rule of the game. Did a government action endorse religion in a way that made some insiders and others outsiders?  Of course, the same line drawing cases might pop up. Did not "under God" do that?  Not in her eyes when that came up though the Supreme Court itself punted on standing grounds.  But, as the attorney against the peace cross said, these cases will turn on context and general rules to answer all questions would not really work.

And, thus came the case (like school funding cases that turned on maps v. atlases) that to some really pointed out the craziness as suggested by this breakdown:
BLACKMUN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts III-A, IV, and V, in which BRENNAN, MARSHALL, STEVENS, and O'CONNOR, JJ., joined, an opinion with respect to Parts I and II, in which STEVENS and O'CONNOR, JJ., joined, an opinion with respect to Part III-B, in which STEVENS, J., joined, an opinion with respect to Part VII, in which O'CONNOR, J., joined, and an opinion with respect to Part VI. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment, in Part II of which BRENNAN and STEVENS, JJ., joined, post, p. 623. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and STEVENS, JJ., joined, post, p. 637. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and MARSHALL, JJ., joined, post, p. 646. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C.J., and WHITE and SCALIA, JJ., joined, post, p. 655.
I first started to read this case back in the 1990s when doing so involved going to the library and reading the relevant volume. The various opinions cover various bases with the plurality (at times only speaking for himself) trying to thread the needle oh so finely.  Basically, a creche standing alone (except for what amounted to framing) at a courthouse was too much for O'Connor (the other four dissented in the first creche case, another bunch of opinions to read, Blackmun with a separate dissent there saying the rules basically cheapened religion by only allowing government endorsements of watered down religion, a theme for Stevens too in a few school funding cases).  This led to people ridiculing the rules -- so you need how many snowmen?  But, the basic idea is right as a basic floor to avoid favoritism.

Four justices thought even a creche, a blatantly Christian religious symbol with miraculous aspects (ironically, special respect of the religious components here might lead one to oppose mixture of church and state, while others might handwave it as just a holiday symbol), should have been allowed as a part of a wider holiday celebration.  Others point out such things tend to favor certain religions, even if some places show more care (e.g., New York City public schools traditionally had the Jewish New Year off).  Even here, there was a separate display with a menorah, Christmas tree and salute to liberty sign, but the creche received special respect.

And, we thus enter the fine tuning. Six justices allowed the menorah though the lower court deemed both the menorah and creche as religious symbols honoring specific religious themed miraculous events.  Blackmun said the government could honor the holiday season and there really wasn't a better way to honor Hanukah especially to balance that tree.  [Three liberals thought in that context, even the tree had a religious meaning matched with a menorah; Blackmun suggested maybe a stand alone tree, especially in a school with children where rules were stricter, might at times be an illegitimate religious symbol.]  O'Connor said it was okay to honor religious pluralism and in the process everyone are insiders!

Scalia in oral argument suggested the problem here though he joined Kennedy's opinion allowing everything.  If the menorah (and someone was given time to defend it, an advocate that popped up in various Judaism related cases) basically there as a sort of "equal time" mechanism, what about other religious?  White also wondered if an "equal access" type rule was really being argued.  Not really.  The dissenting liberals were right to basically say that the government endorses a Christmas holiday (the real major holiday) here and the menorah is sort of a third wheel, the whole "Judaeo-Christian" deal. In fact, in that second open access case, when a local government thought a menorah was necessary once they put in a tree, the KKK decided it was only right for them to bring a cross.  (A judge early on saw the problem here when a menorah was sought to answer a tree.)

Justice Stevens partial dissent reminded us that in the beginning there was the concept of multiple establishments -- the government supporting more than one religion (usually shades of Christianity) -- and it isn't ridiculous to oppose a display that (selectively) honors Judaism too.  Brennan added the freedom of belief and pluralism was nice, but some religions didn't like that sort of thing.  Jewish groups split in the very case on the legitimacy of a state endorsement of the menorah.  I prefer Stevens' dissent, at the very least, as good policy.  The court of appeals also suggests the various aspects that should be weighed in such cases:
The variables that a court should consider in determining whether a display has the effect of advancing or endorsing religion include: (1) the location of the display; (2) whether the display is part of a larger configuration including nonreligious items; (3) the religious intensity of the display; (4) whether the display is shown in connection with a general secular holiday; (5) the degree of public participation in the ownership and maintenance of the display; and (6) the existence of disclaimers of public sponsorship of the display.
Stevens provided an example here that one or more justices pointed as a gotcha during oral arguments -- the friezes in the very courtroom. They weren't some stand alone matter like the Ten Commandments display that years back got Judge Roy Moore in trouble. They are a series of lawgivers, of various types, in a wider display.  A stand alone Moses receiving the commandments from God would be quite another matter. CJ Roberts during the peace cross oral argument found such balancing unpleasant.  But, judges and juries do that in various contexts.

Justice Souter split the baby in that cross display at the capitol square case, but as a general matter (including involving an older Ten Commandments display) was generally a liberal with separatist sentiments. No wonder I like him, right?  But, I like Breyer too and his overall principles are sound.  We might disagree on how to apply them (he himself said in Van Orden that he agreed with O'Connor but not how she applied her rules; her opinion was originally a sort of valedictory one but then Rehnquist died and she staid on until January).  What else is new?

The wider concerns are what matters, even if a holiday display might seem like a fairly trivial matter.  Symbols, mottos, ceremonial practices and so forth are not really trivial as a whole.  Students being required to say the pledge, and this was before the addition of "under God," was a major controversy in the early 1940s. The so-called "War on Christmas" is deemed ridiculous by some but it having any bite is a result of this very fact. Justice Ginsburg in her dissent in the peace cross case noted that by one count thirty percent of the nation are not Christian.  There are a diverse number of options to put on military gravestones, underling a cross truly does not represent all war dead by definition.  Jews for one find all those Christmas endorsements a bit more bothersome than others.  The Constitution itself allows affirmations as well as oaths and again some Jews even write "G-d" because they deem even the more generic term sacred. 

As I noted with Thanksgiving and referencing days of prayer and so forth, for me, a basic rule overlaps Justice O'Connor's endorsement test, if one I'd apply in a stricter way.  We need to bring in the diversity of our nation. That person who thought liberals were belittling his religious liberty is one to talk if he supports someone who selectively honors it unless that term is code for certain faiths.  Like Thanksgiving, holidays around the winter solstice have a long history, though different traditions honor it differently.  Jesus was not really born on December 25; the day was chosen to replace an existing pagan holiday.  It's best to remember that even if things like "Santa Claus" has a semi-Christian flavor to them.

My personal idiosyncratic focus on holiday display cases this time of year, along with other things, will likely continue.  Being online allows me to delve into lots more lower courts with curious fact scenarios involving various questions that touch upon various themes -- Justice Alito might split the cases, but they tend to overlap some too.  Like abortion cases and so forth, they are a way to examine wider questions. Happy holidays.


* Justice Scalia did his truth teller routine regarding the Lemon Test in one case involving a state policy that tried to deny religious related film strips while allowing other types on the same topics:
As to the Court's invocation of the Lemon test: like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six-feet under[.]

The secret of the Lemon test's survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will.
Professor Segall and others have called out Scalia's inconsistencies but in general again any "test" isn't like some sort of mathematical formula going to solve everything here. Breyer's balancing might seem nice to some conservatives in the peace cross case, but less so in some other context where strict rules seem ideal.

Of note, while dismissing Scalia's "evening at the cinema" (the references are well known to those in the know), the majority cites another case that honored the precedent. The case concerned religious exemptions being allowed, at least with the "purpose of lifting a regulation that burdens the exercise of religion," a matter that pops up in various controversies.

A holiday display doesn't really do that -- people have every right to have a creche on private land.  A government endorsed religious message doesn't lift a burden; it adds a special benefit.  And, repeatedly it tends to do so selectively.  At times, we are reminded that the First Amendment honors religious liberty, but it does so in two ways -- resistance of establishments and burdens on free exercise.  A tricky balance.