RIP Shag from Brookline

And Also: I have read a few books by Isabel Allende, a niece of the murdered Chilean leader, but have not for a while.  A Long Petal of the Sea concerns two refugees from the Spanish Civil War who wound up in Chile, based on an actual refugee ship that many like them there. It is a typical Allende story and worth reading. 

Juan, your first paragraph has struck me as shock and awe for which you should wear a hair shirt as punishment. But I did read, and agree with the remainder of your post, except that your final paragraph is wishful thinking.

By the way, Paul Krugman made light of Broder's column at his Blog, which is the proper weight to be given to Broder these days. (Juan, don't forget Broder's adulation with everything Bush/Cheney for 8 years.)

This is an old comment on Juan Cole's blog from "Shag from Brookline," an irreverent retired lawyer (he would be in his late 80s last year) that has long been commenting on blogs. I saw him particularly at Balkinization Blog railing against resident trolls and conservative true believers.  He is one of many people over the years I have engaged with and read online that is one of the privileges online life has to offer. 

Never knew specifically who he was though he talked over the years about various experiences he had over his long life. In the second half of last year, I didn't see him for a while.  He did eventually pop up to reassure me that he was still around.  But, then in the last few months, he wasn't around any more again.  He had for some time talked about the signs of aging including his bad eyesight, so this was a concern.  OTOH, not knowing his real name, or anyone else who knew he was regularly posting and a bit of beloved character, there was no way to check.  This popped up in another context years back when I was on AOL and (this was before smartphones) it turned out someone I chatted with was in the hospital for some reason and could not let me know. 

Flagged that he wasn't around and today someone else wondered about him again.  So, decided to search for his name. I eventually found a comment from "Shag from Brookline" that had an AOL email link that matched a name.  Doing a search, found a lawyer from Brookline whose formal first name (appears to have been often called "Archie") was Arshag. So, "Shag from Brookline."  Unfortunately, the news was that he died in November, which also matches the fact the last I heard from him was at least a month before.  It is nice though to be able to put a face to the name.

RIP Shag. 

SCOTUS Watch

After a single action on Friday (a stay in a non-hot button case with only RBG publicly dissenting), today's order list was again low drama. They are in recess now and will be back in late February. Meanwhile, birthday boy (65 so can be there for another twenty years) will preside over the impeachment trial. An execution the liberals (noticeably Kagan too, who often doesn't get involved) already found problematic is scheduled in a week or so. So that and/or other unscheduled order stuff will likely pop up. Note again they are slow-walking (March argument) the Trump financials stuff as an impeachment goes on.

Here at our sea-washed, sunset gates shall stand/A mighty woman with a torch, whose flame/Is the imprisoned lightning, & her name/Mother of Exiles. From her beacon-hand Glows worldwide welcome...”Send these, the homeless, tempest-tost to me/I lift my lamp beside the golden door!” https://t.co/gqvQR2VXdO

— Rebecca Traister (@rtraister) January 27, 2020

Sigh. On "Order Day," SCOTUS slipped this in (it isn't even in the Order List slot, put in the "Opinions Related to Orders" slot) later on with Gorsuch/Thomas having a separate statement complaining about nation-wide injunctions (a serious concern if one open to reply but the opposition to it seems selective). A brief rejecting it on the merits. The liberals should have explained their vote. Not the first time I'm annoyed at quiet dissent.

Becoming Eve

The timing of the coming of the reserves and such led to books in a series about about a Turkish prostitute with a trans friend (among others), a woman who left her Orthodox community in the UK but returns after her rabbi father dies and meets up with a former lover who stayed and now an autobiography about an Orthodox boy who deep down knows she is a girl. The book is mostly about that upbringing, the birth of a son being the moment that truly starts the break (c. 2010). That and the aftermath is basically summarized in the last twenty or so pages. Wish more was said about that but overall good book. Sounds like a kickass lady.

Sports Update

ETA: I watched a bit of the game; the final score was 38-33, AFC winning, clutching it by being able to run out the clock.  

This is Pro Bowl Weekend, but let's do a quick local sports summary. Eli Manning, whose Giants career was about being nice/not making waves, never hurt (he finally was sat for Geno Smith -- a low point in the last few years -- for message reasons) and beating Pretty Boy twice in the Super Bowl. He was net an average quarterback who shined at certain moments but was in decline in recent years. Not that the team around him helped matters.  Overall, "that will do pig," is how I'd phrase it.

He retired instead of trying to extend his career, which was proper. Hall of Fame would be more questionable (unlike Derek Jeter, who was chosen and had more net talent as well as sure special notice for where he played). This also eases things for the new young head coach, the new young QB likely to have another growing year. The Mets also brought in a new young manager though I rather a more experienced vet (Luis Rojas). The general management of both teams -- both GMs staying -- has a lot to answer for. I cannot stand listening to the Mets GMs, always feeling like they are trying to sell me a tainted used car.

One thing that couldn't simply be expressed by local coverage of the Beltran mess (no official statement) is what salary he retained after his part in the Astros cheating scandal led to his departure. Found an article that said they will just give 200K to his charity though they still have to pay one fired manager in 2020. Is it too hard simply to say this? BTW, early odds has the Mets winning in the mid-80s. Same "if everything goes right ..." One gets tired.

---

I'll attached this that occurred after I first posted this down here.

By the time the game began, it came out though the details were not immediately clear, that Kobe Bryant died in a helicopter crash.  A warning regarding relying on raw data is suggested by reports of less people dying and even that more than one child of his was killed.  I am not really a basketball fan but he's a "name" that even I heard of though the rape allegation from some years back was not known to me.  I saw reports that helicopters are just dangerous as a whole though a family member of mine some years back died in a small plane crash too.

At least a couple people on that blog thread were annoyed at what they saw as overblown coverage of a single celebrity (celebrity is a thing; it's natural and the fact Tom Hanks dying in a plane crash -- didn't happen! -- mattering to a lot more people though on a personal level the no-name fellow passenger's life obviously had friends and family too is duly noted) or "hot takes" happening  "live" on his career or especially the rape case. (The reactions were mixed but some wanted to really drill it in that he was a rapist.)

This reaction sounds too much like those who don't want to talk gun reform right after a shooting. It's natural to think about things as they happen when they are fresh in your mind. The reactions are mixed and celebrity brings with it good, bad and indifferent reactions.  It is not really disrespectful or stupid.  Some more care clearly should be given when family members are there.  We should not hand-wave how powerful people victimize but even the most horrible act fifteen years ago also is not all a person is.  The case is not being shoved aside -- I saw repeated references to it.

Impeachment Trial Update

I honest to God still can't believe that this is coming from the president of the United States. Removed or not, this is what a failed presidency looks like. https://t.co/1gVOjaXTNC

— Joyce Alene (@JoyceWhiteVance) January 25, 2020

After a long night (Roberts did preside in his day job in the morning all the same) of Republicans blocking documents and witnesses, Republicans now are not only saying they are bored with the same old same old of the opening presentation of the managers but talking about blocking witnesses because Trump will claim privilege and that will take too much time to handle. This is b.s. in more ways than one. Will Roberts do more than (per a Sen. Collins note) than tell each side to play nice (which is fine; that's what presiding officers do).

Today was a brief opener for the Trump team though in a masterful finish the night before, House lead manager Rep. Schiff (a vegan btw) basically dismissed them via a pre-rebuttal before a powerful finish. I think the managers belabored the facts [I wished they covered more on his past/current actions to show the pattern of wrongdoing though that did come up] though it is partially a matter of appealing to changing audiences around the country. But, Schiff artfully began and closed the days. Also, there were excellent material including Nadler's summary of what is impeachable and the second half of Friday's presentation, regarding how Trump obstructed Congress. An important thing to underline. See here.

Lunar New Year: Year of the Rat

I guess the "new year" wasn't quite over.

ETA: As to the whole "morons" thing, I can't believe a certain "Trump shouldn't be impeached" op-ed was taken seriously as I noted in comments. Tired of morons.

Friends: Season 7

I noted that 2-4 really is when Friends shine though while watching the series from beginning to end that the first was pretty good and so on. After "taking a break," longer than Ross, to watch Good Trouble, I started to watch this season. It was nice to return to a comfortable group of people I feel very familiar and care about. Monica looks better (guess her plastic surgery settled in) and Chandler looks rather more worn down (his health issues might have affected his energy levels). On the whole, though earlier seasons had more moments of hilarity, there so far are several amusing (and touching) moments. Nice to see Ben.

ETA: Good finale involving the Chandler/Monica wedding that was funny and touching with a bit of drama. Overall, good season. Matthew Perry is more healthy looking later on. Also, you watch it enough, you are impressed by David Schwimmer's physical comedy (he also directed multiple episodes). Finally, it's a bit ridiculous that Courtney Cox never was even nominated for an Emmy. Guess more a straight "man" low key character in a way but she deserved it.

Roe v. Wade Turns 47

Today marks the 47th anniversary of Roe v. Wade, which held that the constitutional right to privacy included a woman's right to terminate a pregnancy. Roe was not immediately controversial when first announced (it was a 7:2 decision written by a Nixon appointee)...

— Melissa Murray (@ProfMMurray) January 22, 2020

Prof. Murray, of the Strict Scrutiny Podcast, was the pro-choice talking head on the Landmark Cases Roe v. Wade episode and contributed to a new collection of reproductive law stories (went to an event promoting it).  As she notes on that thread, not only is the Supreme Court (the Kavanaugh Court, who specifically was chosen for his views here, including delaying a teenage immigrant from having an abortion in a key case) going to hear a key case this term, but already many women only have abortion rights in name only.  I would cite such things like some states having one clinic (which sounds ridiculous), funding being blocked, waiting periods (especially for teens) among other things there.

I have been talking about this case on this blog for about the length of time it was operating.  Wrote about it in high school back before even the Webster was the warning sign thirty years ago. As a matter of constitutional law, this was influenced by the off way justices were appointed since 1969, helped by more than one tainted election (2000/2016).  It is a tad absurd that it was then that the last Court with a Democratic appointee majority ended with the effect not as blatant given the reality of liberal Republicans up to and including David Souter.  A lot of the focus should be in the state legislatures and the reasons why it is threatened there can be discussed too.

There is a continual argument that the best way is to send this back to the states. As I noted there, it's hard to see how that holds up, especially on a consistent basis, given the basic right at issue.  Some are wary about resting things on some right to privacy or "liberty" interest as was the approach post-Planned Parenthood v. Casey, which also opened up the path to more regulations. I repeatedly here explained how it fit into long precedent in this regard.  It is not just a matter of basic justice and health care. There are multiple clear constitutional demands.  And, as some even back then noted, this includes women being equal citizens.  There is in fact a connection there to the Nineteenth Amendment. As noted here, this factors into the ERA as well.

Surely, and the introduction of the book links says this, the federal courts or even courts at all (though state courts repeatedly matter a lot here, including state constitutions, which many wary of the federal courts are much less worried about) are not the only thing important here. New York, where abortion rights are rather safe as much as funding of health care (at least comparably), firmly as a matter of statutory law protected abortion once the Democrats gained full control.  Some have noted that even as abortion is legal, less and less doctors study it in school.  There is also a general need to convince people that at the very least abortion is a valid choice, especially in certain situations. 

It is somewhat amazing among other things that reproductive liberty -- and that is the wider issue -- is still seen as an open question. That we are debating the reach of contraceptives being covered on health care plans for workers and students. Modern means such as abortion pills and telemedicine (though some states limit this) help to some degree. We are not on the road to The Handmaid's Tale.  But, the threat is real and there still needs to be work to be done in the area of reproductive liberty.

As Roe v. Wade gets to the an age where women might be on edge of childbearing age -- though the wider issue of sexual liberty covers postmenopausal years too -- this is still the case. 

SCOTUS Watch: Order List (Impeachment Too)

There was some talk that there might be some notable action today, perhaps granting cases for next term, but the usual practice of grants on Friday, boredom on Monday (Tuesday with holiday) was followed as a whole. The big news is basically that SCOTUS did not vote to "fast track" a major ACA case that some liberal minded sorts thought should be taken. Overall, there was a decent argument not to take the case yet though the net result of that does help the Republicans/Trump by punting the issue until after the election.  OTOH, it is very well an election issue since it involves denying people of health care.

— Kenneth Jost (@jostonjustice) January 21, 2020

There was some odds and ends that as I say as a rule are of some interest and should be clarified by a FAQ.  There is also an interesting case flagged here by the "Jost on Justice" blogger and the page can be found here.  Justice  Breyer went along but noted there was a conflict in the circuits and that he thinks it would be a good natter for the Rules Committee involved in setting the rules of proceedings to reconsider.  A bit of triva: not only was the dissent below (it was a conservative leaning panel in a liberal leaning circuit) was on the Scalia Seat short list (Obama edition) but a case involved Rep. Biaggi, who was the grandfather of the current state senator (my own) of New York.

The Supreme Court hears three cases this week, including a possibly important religious funding of schools case tomorrow as Chief Justice Roberts presides over the impeachment trial in the afternoon/evening.  On that front, the head impeachment manager, Rep. Schiff, was excellent. The others were somewhat of a mixed bag though mostly put forth good cases in a professional detailed way with visual aids. The Trump team  overall had talking points and bluster mixed with b.s. Various requests for documents and witnesses were rejected party-line votes while the Democrats used their argument time to talk about the case as a whole. Roberts followed precedent and served a ministerial role as "presiding" officer, a role in other impeachments that would be done by the vice president or the pro tempore of the Senate.

The Republicans want arguments first, then votes on witnesses, Schiff calling that back-ass backwards or some such thing.  Thus, a series of amendments that pushed the final vote past 1AM with party line votes each time, except for Susan Collins joining the Democrats once when the managers asked for more time to answer motions.  After midnight, bad boy Nadler came in to call out the lies of the Trump team, which led to umbrage from them including a lay-up for Schiff when the White House counsel -- who given his job arguably shouldn't defend Trump alone here -- said Trump was a man of his word.  Roberts then admonished, including with a homely old precedent involving use of "pettifoggery," each side to be nice.  This went over real well -- both sides do it! -- on Twitter.

The rules passed 53-47 (party line) and everyone went to bed.

Disobedience (Novel)

The book came first, over ten years before the movie, but just read it now. Liked both and the movie expanded (especially the sex) and changed some things (e.g., in the book, Dovid becomes the rabbi and Esti is the one who speaks at the "hesped"). Maybe, it was just me, but book was a bit "creaky" at times though rewarding as a whole. Plus, it was only a bit over two hundred pages. And, nice to have multiple points of view, including a "community" view.

NFL Championship Weekend [KC Wins; Reality Bites]

After Clemson finally lost, in part thanks to a rather remarkable TD in the closing seconds of the First Half, we are left with three football games plus the Pro Bowl. As a preliminary matter, it isn't really Kansas City's fault that the Texans made a stupid gamble (and lost) and then followed up with a horrible oopsie on the next kickoff (24-7 became 24-21 fast). And, then the Texans (24 points in under twenty minutes) just stopped scoring (seven points rest of game). But, what a horrible way to lose/win. Anyway, if my team isn't involved, I'm naturally for the underdogs. So, darn I hope the Titans win. I'm more agnostic on the night game. Guess the 49ers since they are the newbie. Pre-games comments. Now for the recap.

Titans, repeatedly helped by KC penalties, matched KC in First Half until repeatedly unable to stop on third down on the final drive and then a clinching "stop him, you assholes!" run by Mahomes. 21-17, same four point advantage as last week if a tad differently earned. Stalemate 3Q. Sealed it in 4Q & I don't want to see the Super Bowl. Hey, fandom isn't totally rational, plus just don't care much about the other teams (SF crushed Packers 27-0 in First Half; lost 37-20) and KC winning would annoy me. Still the Pro Bowl, I guess.

Bunch of News ...

(This was so detailed that for the first time ever I had an error message regarding using too many characters for labels!)

Some people badmouth Twitter, but it has value (various superior content) and you can have fun with it (celebrity accounts etc.).  A problem it has, but the same can be said about the 24/7 media cycle and blogs, is that you can be overwhelmed with things happening all the time.  Back in the c. 1990, I was a consistent reader of various publications (easy access via a convenient local library near my college) on a daily/weekly basis.  But, such constant updates wasn't a thing (did not even have CNN for a while).  The other issue are all those comments, many of them dubious, but it's amusing really that comments on a blog complains about something like that.

===

I admit to being addicted to this stuff -- again, I was a ready consumer of news when there was less of it.  Spend too much time on Twitter.  But, there is a lot of stuff happening.  For instance, the Virginia legislature this week ratified the ERA.  In theory, they are the final vote, but reality is a tad more complicated.  One place this was hashed over was over here, this being just one of many comments on the matter.  Simply put, the likely deciding factor here is going to be Congress.  And, it very well might be something that ultimately will be decided there after the elections, so this might be a factor in them to some extent. What you say Biden et. al.?

The question mark is the U.S. Senate and it isn't quite as dark probably as some might think long term.  There is also the question of what effect it will all have even if it is ratified. This sort of badmouthing of the effort is misguided. An amendment in bold type, so to speak, can help the efforts made in the trenches.  It also is an interesting question of "originalism" -- what would the congressional debate tell us?  Some think state ratification bodies matter as much or more.  Do the last three votes change the equation here, in part given they are viewing things in a "modern day" light with long Supreme Court equal protection precedents and current day conflicts in mind?  Or, maybe it is back to Congress, including the talk if they extend the deadline?

===

Of course, we have a more immediate constitutional moment: the impeachment trial began on Thursday.  The early moments underlines the whole thing is rather ceremonial, including walking the impeachment articles to the Senate (an argument can be made that this was necessary to "finalize" impeachment -- that is done though some use "impeach" to mean removal), Rep. Schiff (lead manager; Rep. Amash was not asked -- understand playing it safe but think he might have been a good addition to show it isn't just partisan -- though he was open to the idea) reading the articles to the Senate and escorting Chief Justice Roberts over.

I respect such ceremony though at times think we overdo this sort of thing and personally am not a fan of drawn out affairs.  It's a moot point, but if I was ever married, I would prefer a small ceremony if not simply eloping.  Impeachment to me is very important, including long term, and seeing Schiff read out those impeachment articles was somewhat emotional to me. There is a lie that Democrats are not patriotic or religious, but the evidence is ever present that they are.  As someone noted in this thread discussing VP Pence's Pence-like op-ed claiming being a profile in courage means Democrats voting to acquit (Sen. West Virginia nodding his head?), the true profiles in courage here were long term public servants (more than one leaning Republican) who testified and spoke out because of a sense of public duty.  That's a thing.  It isn't just smoke in this cynical world.

Pelosi handled this all rather well, including drawing out sending out the articles over to the Senate to play for time and put pressure on Republicans to show some credibility about making it an actual trial.  Not only did we have Lev Parnas "testify" on two national talk shows -- take his remarks with all the salt you want, but we should hear from him and it puts pressure on Republicans for more, he has receipts and there are ways to judge the validity of his remarks -- but a GAO report came out just on time to show Trump broke the law (other than you know bribery et. al.) by withholding funds.  I stick by my desire for a comprehensive impeachment inquiry that would have basically allowed the same thing to occur.  But, Pelosi is going to be a hard act to follow.  Women leaders, how about them?

Anyway, there is some hope that Roberts will somehow help justice along here, but that doesn't really seem his m.o.  Plus, historically, a presiding officer (remember for other impeachments it would be the vice president or their replacement, not such a judicial officer) here had little power.  Chase tried to push the envelope and was pushed back.  Precedent only takes us so far, but the whole ball of wax regarding interpreting the function here suggests it was valid. The nature of the presiding officer here does suggest something extra.  Roberts only presided over the swearing in ("impartial justice" separate oath) and the like on Thursday.  It was a bit weird to see him being sworn in by the Republican pro tempore.

The trial will come back on Tuesday and meanwhile both sides have time for briefs and such.  In that Pence thread, I summarized the Trump legal team, overstocked with troll bait.  The Trump side submitted more b.s. (starting with the "Honorable" Donald J. Trump heading) including calling the articles "constitutionally invalid." Usual overheated ("absolutely nothing wrong") rhetoric included in rather abbreviated form.  A certain level of disdain there.  Republicans want him in office until January 2025. Meanwhile, the House brief is an impressive over 100 page affair.

[A much longer Trump legal memorandum came out on Monday and from the overheated executive summary on is much the same basically including partisan potshots -- "House Democrats" (not "the House") are just making shit up as part of a partisan witch hunt -- mixed with the usual b.s. like talk of due process, ridiculously limited view of what impeachment covers and the inability to admit anything - "absolutely" innocent -- was done incorrectly.]

===

There were various things that occurred the last week that pop up in our continuing crazy news cycle.  A "fu" that underlines how horrible Trump being in power is and how it will poison us for years was a lower court opinion that was a gratuitous denial of a trans prisoner's request for female pronouns.  Friday this term also has repeatedly been a time to wait until mid to late afternoon to see what the Supreme Court did.  So, this time, before the holiday, it took three set of cases -- a personal jurisdiction matter, something involving "faithless" electors (and still no Third Amendment case?!  how about a grand jury incorporation case?)  and a third go-around on the contraceptive mandate (there was a 1B of sorts that included a strong Sotomayor dissent).  And, among the other "ugh" Trump news, a special owning the libs move on Michelle Obama's birthday (what? that's just a coincidence!).

===

Let's not just talk about politics.  The Oscars nominations came out (early February ceremony? seems a bit early) and the Best Picture nominations in particular seem more lacking than usual (plus other concerns like the Little Women director not being nominated).  I have not been into films in the movies for a few years now at least so the Oscars weren't really my thing as it used to be in the past.  But, 2019 seems to be something of an off year there to some degree looking at the options.  The reviews of multiple "best" films had a lot of middling reactions at the very least.  The only thing that really stands out for me is that I think there is a decent bet that the supporting actress in Little Women will win it.

Everything You Need To Know About The Current State Of Major League Baseball As Told By Mean Girls pic.twitter.com/2HrKoY0yJc

— Julia (@jquadddddd) January 17, 2020

Plus, there is the whole Mets (ugh their GM/owners) thing with Beltran being let go (after a drawn out secretive contemplation) given his role (still a tad hazy though I found an early report when it first came out that it was notable -- the report did single him out by name,  which is either unfair or a red flag) in the Astros scandal.  As I quickly noted earlier, some didn't care about the cheating, but personally appreciate some serious consequences occurred.  Beltran's stand-out role here to me makes it problematic -- at least right away -- to retain him as manager.

And, even Mets radio broadcaster Howie Rose's (and major Mets cheerleader/social media person) daughter said letting him go was the right move.  That video is impressive with a funny kicker that the person involved found amusing.  We are left to determining who will be the manager with pitchers/catchers coming in weeks away.  Probably will pick one of the back-up options with some connection to the team.  I prefer a veteran manager myself and at least one might fill in the Astros/Red Sox manager vacancies arising from this mess.

2020 starting well ...

Nude Dancing and the First Amendment

And Also: The characters in this book makes this not totally non-germane to the below discussion. 10 Minutes 38 Seconds In This Strange World concerns a murdered Turkish prostitute remembering her life in her last months on earth and how her friends find a way to give her a proper burial.  It is very good and tells the stories of its various characters in a respect way.

It seems to me beyond doubt that a barroom striptease is "expressive." Even if relatively restrained, as are the videos in evidence here, a striptease sends an unadorned message to a male audience. It is a message of temptation and allurement coupled with coy hints at satisfaction. In a real barroom, messages would probably also flow in the opposite direction, in the form of encouraging comments to the performer from the patrons.2 These responses speak strongly to the fact that a message is being sent and received.

2.  E.g., "Take it off; take it all off!"

If you like the various opinions in Barnes v. Glen Theatre, especially Justice White's (who has his moments) dissent, the opinions below are something too.  This was a matter of timing -- the ultimate decision was 5-4, the difference being the newly in place Souter, who concurred separately.  A few years later: “After many subsequent occasions to think further about the needs of the First Amendment, I have come to believe that a government must toe the mark more carefully than I first insisted,” Souter wrote. “I hope it is enlightenment on my part, and acceptable even if a little late.”  But, by then six votes was still there even though Souter put forth a stricter test to determine state interests are strong enough to ban.

[I edited this some over the last few days and will add this comment too. The Supreme Court repeatedly did not directly address this issue (as noted by the dissent referenced in a footnote) or do so in a honestly comprehensive way (as noted by the dissents in the two cases just cited). As with obscenity cases, the specifics of a case can lead you to differentiate.  I find such going into the weeds interesting as this blog suggests.  Thus, the second case above per the Stevens dissent -- Souter went along with the plurality's rule (thus giving it five votes, Barnes more fractured) but not its application  -- the law was particularly content based. The first case as applied was not -- the public nudity rule was simply not consistently applied.]

As with other issues along the edges with an ah titillating shall we say side, nude dancing is not prime free speech material* as matters of special importance goes.  In the 1970s, it was dismissed as having the "barest minimum of protected expression," anyway, the government was allowed to ban it if alcohol was served on the premises as a Twenty-First Amendment regulation.  Years later, when liquor advertising was involved in the 1990s (44 Liquormart, Inc. v. Rhode Island), this was "disavowed."  It was left to Justice Marshall early on to both honor a broad view of sexual expression and deem this an unconstitutional condition.**

In support of these charges, the prosecution produced two police officers who testified to the following facts. Petitioner Giannini managed the Lighthouse Inn, a nightclub in San Pablo, California; petitioner Iser performed the "topless" dance featured at the Inn. Wearing tights and a transparent cape, Iser appeared on a spotlighted stage and performed various modern dances, including the "Swim." As part of the act, she removed the cape, exposing the upper portion of her body, and performed a dance called "Walking the Dog" to the music of a song by the same name. "Walking the Dog," according to the officers, consisted of petitioner Iser "wiggling around" for about 30 seconds on her hands and knees with her breasts exposed.

An opinion by the California Supreme Court in the late 1960s applied basic obscenity rules and determined that dance is obviously both expressive and that it did not lose the protection such expressive conduct retains just because a striptease was involved. Plus, the average topless routine would not be obscene. The current rules by the U.S. Supreme Court hold that it is protected, but is conduct for which it is easier to regulate.  Dance and something like burning a flag, however, is not quite the same thing there. One is traditional expressive conduct; the other is something that often if not expressive, but might be in a certain context.  So, it is more appropriate to regulate certain conduct by more lax rules than other types.

Also, the plurality basically says that nothing much is lost if you require minimum coverage though that sort of works both ways. After all, "secondary effects" (that Souter in that later case deemed a weak fit) such as its relationship with local prostitution or crime justified banning complete nudity.  The value of minimum coverage here rather unclear. If there are "secondary effects," dancing in a string bikini is unlikely to cause much more and free expression, especially when the regulation is tied to viewpoint (sexual related in some fashion), should demand a more compelling need.  Bans of alcohol, zoning, some sort of buffer zone ("no touching") and more might matter more than having g-strings and pasties. Plus, more neutral.

The use of sensuality and sexuality in expressive ways, and the specific way it is done, is clearly of some importance.  This goes back to the days of yore in the animal kingdom (if not before!) and humans express themselves in own way here is a variety of ways.  Multiple works use touches of sensuality, including nudity, for special effect here. One famous case noted that something as coarse as "fuck the draft" has a special meaning; saying the same thing in a more polite way ("damn the draft") would not have the same effect.  The power of nudity is why the government wants to cover up certain spots though over the years even sensual dancing has been targeted. Some think dance alone is too sinful.

When the Supreme Court got around to dealing with nude dancing without the complications of liquor use, the dubious line drawing that is going on here is more clear.  Unless one wanted to directly address the matter with pasties and g-string like covering.  Past cases made clear that dancing and even nude dancing would be protected in some fashion. Nudity in live performances is present in various plays such as Hair, so a complete ban would be problematic, at least under long-held precedents.  And, public nudity itself isn't completely banned either. Under traditional rules, e.g., a billboard with a nude picture would be banned. But, it is readily admitted that now you can have a range of nudity, including non-obscene films, in a range of public places.

"Public places" is also a bit of misnomer when you are talking about clubs or the like where only consenting adults enter or even a museum with certain types of explicit art. Traditional public nudity bans dealt with unwanted viewers and children and even then arguably they are applied in at least a discriminatory way.  To the degree more was banned, again, modern free speech law protects a lot of nudity with expressive conduct.  OTOH, the Supreme Court just this week turned down the New Hampshire case cited here, even if New York protects topless women though I have yet to see any walking down the street.

Thus, Justice White was able to fairly easily show that the real thing being regulated here is the message promoted by the particular form of dance at issue, which amounts to forbidden viewpoint discrimination.  As he notes, using a case where drug laws were deemed general in nature even if the result denied a person from practicing their religion did not apply. Toss in more respect for the expressive content of dance here (if not as in depth as the opinions below).  In the later case, Justice Stevens wrote the broadest dissent to argue basically the same point.  Plus, in Glen Theatre, the women weren't even on a stage or surely not lap-dancing, but in glass booths.

The oral argument in Barnes therefore needed to be more restricted in respect to the government.  Traditional public nudity laws does not mean various forms of nudity was unprotected expressive conduct. The state court protected certain performances with nudity.  There was some talk of a need of a "particularized message," but dance has that too and even your basic stripper often tends to have a set routine with some sort of theme. Bringing up that the women were doing it for money amounted to throwing everything to see what sticks since even Scalia noted that many performers did so for money.  It wasn't cited this way, but what if the strip routine was part of some wider work such as an old murder mystery involving a stripper?

This is the sort of thing were other than "yeah come on," applying the rules would seem to cover it.

----

* Barnes also notes there are other kinds of dancing, such as social dancing and dancing for exercise. I would think, though the justices saw it somewhat differently, social dancing would have some value as a liberty of association.  The concurrence there spoke of the liberty interest of dancing with friends, but as with other types of "intimate association," there is some associative interest there even if one is dancing in a crowded dance hall.

Social dancing often has some expressive content, even if it is not the driving focus of the activity. The controversial "message" of various types of dancing in that fashion arose repeatedly over the centuries. And, dancing for exercise probably is protected as a liberty in some form. But, the dancing here is clearly performance dance with expressive content and has been in some form since ancient times.

** A per curiam in 1981 clearly held that the 21A gave the state (NY) specific power to take away the liquor license (this minimum effect might be why Justice Marshall concurred in judgment) of an establishment that allowed nude dancing. Justice Stevens dissented, noting that perhaps alcoholic establishments might require special regulations, but the 21A does not provide some special blanket authorization.  Such is the current rule.

Death Penalty Watch

The impeachment trial began today (a lot of ceremony) and Beltran is no longer the manager of the Mets given his role in the Astros cheating scandal (he was singled out as the only player referenced by name in the report and earlier reporting said his role was significant). The whole thing is tragic but (now three managers lost their jobs) it is appreciated that there was some real punishment for cheating though I know some non-Dodgers fans are all "who cares," or worse, like a Mets advisor in an interview. Charming that.

Unless it is a special case, I'm not going to do a deep dive for executions like I did last year, but there were two executions still scheduled for this month. One, after merely a denial of a final appeal among the Order List on Monday (not a stand alone on execution day), occurred yesterday. Some horrible two time wife killer who should have staid in prison. The other, after thirty years and apparently how the jury wanted if given the chance, had his sentenced commuted to LWOP. Murdered during a robbery. Two as of now scheduled for February.

Mister Rogers' Neighborhood: A Visual History

I finished the new coffee table style book on the show and it is good with lots of pictures and information. I did not watch the show or the Tom Hanks movie yet, but did catch parts of two documentaries (there is a longer one and then a shorter television one). His faith in humanity and basic goodness is a model for our times. It is unfortunate the book did not cover this, even though he is interviewed and it is covered in at least one of the documentaries.

Supreme Court Watch (2020 and 1860-ish Edition)

I read a pair of Civil War related books with a legal focus and have a split decision. The topic of Uncivil Warriors: The Lawyers' Civil War was interesting, but the follow thru left a lot to be desired.  It was somewhat worthwhile and the last chapter that provides a quick "epilogue" was rather interesting, covering more atypical ground than the previous ones on such questions like the Prize Cases.  But, various things turned me off.

First, it was fairly one-sided, even if lawyers had more of a role on the Union side. For instance, works have covered civil liberty issues on the Confederate side too. The failure to even mention the Confederacy never had a Supreme Court underlines the paucity of the coverage.  Second, the actual discussion was rough going repeatedly. One rather glaring example was the false statement that only Peter Daniel joined Taney's opinion in the Dred Scott case -- even without reading Justice Wayne's concurrence that expressly says he joins the whole thing, the average account mentions it.  And, the author is not just a historian, but has a legal background as well.  Expect more from the author in question.

The Lost Indictment of Robert E. Lee probably was a bit too long near the end [perhaps to fill in about 200 pages, but overall was more enjoyable. I admit that until fairly recently I was not even aware Lee and others (the book for some reason doesn't really go into the over thirty people indicted with Lee and some of the names are simply not familiar) was indicted by a federal grand jury (familiar with Jefferson Davis).  The book also examines Robert E. Lee himself, myth v. more tainted reality, which I am more familiar with in past writings. Early on, it (citing a book I read) notes Lee had more troops at least at the beginning of his final battle than often assumed.  But, this point is not really dwelt upon as it should be in at least an end note. The army's total lack of resources is relevant to the Lost Cause myth making.  If Lee himself was misinformed (some confusion was involved in an important incident involving his family's slaves), that too would be useful to get a full sense of the thing. 

Those who have a very low opinion of Andrew Johnson should appreciate at least his view on treason trials though in the end it ended with a whimper.  The book puts much of the blame here of Chief Justice Chase, who it was felt needed to be involved as a presiding judge (the other Virginia judge was a radical Republican type many didn't think much of), but kept on finding a reason to delay things. Chase was a bit of historical missed chance -- he simply wasn't there long enough to put his stamp on the Supreme Court, other things restraining him as well. And, then Johnson's own impeachment trial did.  Finally, it was decided though it was obvious treason, jury nullification was likely. And, the public probably didn't want the leaders to be executed either.

Basically, I hold to my sentiment, shared by many at the time, it just was unlikely you would get a conviction in Virginia by a civil treason trial or any sort of criminal trial really, except perhaps for some special reason.  When a military tribunal approach was not available, convicting conspirators in the Lincoln assassination was not possible.  Lee himself was involved in invasion of Maryland and Pennsylvania, so the most strict "where it happened" rule would surely make it possible to do so there.

Secession is nothing but revolution. The framers of our Constitution never exhausted so much labor, wisdom, andforbearance in its formation, and surrounded it with so manyguards and securities, if it was intended to be broken by everymember of the Confederacy at will. It was intended for “perpetual union,” so expressed in the preamble, and for the establishment of a government, not a compact, which can only be dissolved by revolution, or the consent of all the people inconvention assembled.

The book tosses in some of those interesting touches that are intriguing. This is from a letter from Lee in January 1861, his view changing later on.  Also, the very end covers the dedication of a gigantic Lee statute in 1890. The negative response was also covered, including a local black journalist who also served in the Richmond City Council.  Looking it up, Richmond: The Story of a City notes this was a thing into the 1890s.  I was aware of limited black political involvement in certain Southern states that late, but was not aware that there was notable black involvement in the very capital of the Confederacy.  It suggests that history of disenfranchisement was not totally a given if that late in the day blacks could serve in the government.

===

The Supreme Court had less than 70 cases to hear for oral argument so it was expected that they would take a few more.  On Friday, they granted three more, involving prescription drugs and other matters of some import. The government in each case agreed they should be taken for review, so it was an easy enough call.  The breadth of what some call a "Lochner" First Amendment might be touched upon in a case with this question:

Whether the government-debt exception to the Telephone Consumer Protection Act of 1991’s automated-call restriction violates the First Amendment, and whether the proper remedy for any constitutional violation is to sever the exception from the remainder of the statute.

The first conference of the new decade is followed by the first order day and two weeks of oral arguments. The Order List is long but doesn't seem like much significant happened with no separate opinions. My usual lament holds: a lot still is there and an Explainer (see Chief Roberts report on judicial assistance of civics understating) would help a lot for the average reader. A hot button case will be heard next week involving government aid to religious schools. Will Roberts have some more responsibilities soon? 

Division Round

After some wild card surprises, figured this week would be less so. The Vikings started off well vs. SF, but was totally outmatched in the Second Half. Titans went up by 14, missed a shot to go up by more before the Half (instead Ravens made it 14-6) but dominated second half too. Upset! 28-12. Texans was blown out after being up 24-0 and then doing something really stupid. Packers held on though up 21-3 (28-23). Net, one surprise, two epic collapses.

Meanwhile, Giants have a new head coach (teams are moving fast) -- Joe Judge, an under 40 special teams/wide receivers coach from the Pats. Third or whatever time the charm head coach-wise? Young but has eight years of NFL experience. Some fans might feel better if the GM lost his job too, especially after admitting in a recent interview he failed at his job.

Repeat Performance

There are various well know classic Christmas movies including something different ones like The Apartment. This one, with a New Years Eve turn, deserves a look. I caught part of it and then reserved it to see the whole thing and it was rather good. A woman kills her husband and then gets to live the year again, but fate seems to be hard to avoid. Some good performances and a "hey! that's Mrs. Howell!" supporting role. Good ending.

Little Women (Did Joey from Friends see it?)

I saw the version in the 1990s with Susan Sarandon as the mom and now it's Laura Dern. This version has received a lot of praise and unlike Ladybird by this writer/director (which I didn't really like) basically agree. It starts with them as adults and flips back and forth in the story, which mostly works. It seemed to start a bit slow but got into the story. Liked the actresses though Meryl Streep didn't really add much to her role. Florence Pugh as "Amy" (I saw her in Lady Macbeth, not Shakespeare) is notable here since she is a bit less known; her voice is distinctive. Males are mixed bag. Felt time appropriate but think another version might be able to really highlight that sort of thing. Also, maybe more for Beth to do.

Wild Card Weekend: NFC

The excitement continues. Vikings gave up a turnover early. Stop (FG) and their own FG. A trick play leads to a TD. They drive/stopped and only get a FG. But, Saints get a turnover themselves. Saints miss a makeable FG earlier and then seem to play for OT & make a longer one. But, Vikings win the toss and THIS time, on third down (after being pushed back), do score on 1st and Goal. Upset. Vikings fought adversity and their defense held Saints.

Seattle had reason to find losing next week and getting the Eagles over the Vikings not a bad thing, even if they missed a home game. More so when ex-Jet (and various other teams) Josh McCown had to come in for the injured Eagles QB. Seattle scored near the end of the Half to make it 10-3 and after the Eagles had to kick a short FG on the other end, Seattle quickly scored again. 17-6. Game was basically over then though the final score was merely 17-9 and could have been even closer if the Eagles didn't go for it somewhat late. That was the same score with the regular QB in when they played in November. Blah if expected.

So three wild card teams won; one lost in OT.

Wild Card Weekend: AFC

Football can be fun. Bills v. Texans seemed evenly matched, both flawed teams and fine if either wins. Figure they would lose next week anyhow. Rather messy game. Bills went ahead 16-0, but could not pull away. Lost in OT 22-19. For some reason went on it 4th and 27 instead of punting and pinning Texans back deep with three time outs. Still managed, barely stopping them first, to get to OT. To torture their fans a bit more. Entertaining.

After the Dolphins (HA HA HA) beat them, the Pats had to play the Titans. Pats have not done well needing to win an extra game. But, they still were favored, if with everyone seemingly figuring they could easily lose. I skipped this one, but checked, and right before Half, the Titans made it 14-13. Which it somehow basically stayed until the Titans punted with twenty five seconds left to the Pats goal line, the Pats having flubbed the catch, allowing Titans to bleed ten seconds off clock. Turnover and it was 20-13 (went for two and failed), Titans. No miracles for Pats (actually they muffed the catch) in the last nine seconds. THE END?!

ETA: Multiple silliness including a possible flub rules-wise in the opening of the Second Half of the Bills game that could have affected the outcome though the Bills seem destined to lose.

The Killer Shrews (Hey, that's Roscoe!)

Not Svengoolie, but could be [updated: it was! changed the video] -- it was on an additional channel added to FIOS, the Sci-Fi Channel Comet. It is a 1950s horror movie [which actually had a sequel with the lead, James Best, fifty years or so later]. It was fun "B" movie fare.

The Soleimani Strike [Trump Makes Iran Situation Worse]

The words of this song continue to be quite relevant, especially after a top Iranian leader was killed (will avoided weighted terms) by U.S. military forces.  Yes, though not alone, one person ultimately decides and our current law likely makes how Soleimani was killed somehow "legal." As noted by the author there, this doesn't mean the strike was a good idea or that even that the current law is either.  One some level, at least, the reach of the two authorizations of military force is a tad insane on a constitutional level.  But, there is a range of reactions to make here so it's okay to cry foul too.

[There are reports that the reasoning offered for the attack are dubious and will affect the legal argument.  The details are of some importance both politically and as a matter of diplomatic policy, but dubious if the case is so bad that they would really have trouble in a legal sense. Realistically, there is no actual check there other than impeachment. Which is still pending.  It might help support of additional limits of the sort cited below.  Maybe.  Trump is now threatening attacks on Iranian cultural sites in a way that would violate international law.  But, what is going to happen?  Arrest at the Hague? To be continued.]

"One person" deciding -- in practice it's a bit more complicated -- to the degree involved, including using laws from the 9/11 era violates good constitutional policy.  Including due process matters in particulars.  We had a few cases, e.g., involving "targeted killings" that involved U.S. citizens.  I was loathe -- as some blithely did -- to just call these illegal "assassinations."  If an Al Qaeda member who is a U.S. citizen is killed by a drone, it very well might have been in 2004 legal to do so.  We killed lots of American citizens in the 1860s.  But, if Shelby v. Holder can hold the Voting Rights Act criteria for preclearance rules out of date, we might find something set up to deal with 2001/2 events too.

I thought this -- down to the "to his credit" comment -- a good analysis of the whole decision here though totally admit my ignorance on this sort of thing (making me on this mainstream).  Likewise, actually taking the people in this Administration at face value is a fool's game.  We've been down this road before, often with some of the same conservative leaning voices (not always of the same political party).  I was loathe to accept that invading Iraq in 2002/3 was a good idea, thinking that should be made as a last resort. The people in power didn't help my trust in judgment calls much more.  The Libya bombing under Obama, e.g., has been subject to serious criticism.  I'm open to that sort of thing, but both the parties involved and the specific details were different.  Yes, here, decision-makers can be key.

As noted here (including a link to the Washington Post, which I will cite below), the decision-making of Trump and to be clear "et. al" in various respects, should basically never be trusted.  Noting the grain of salt we should add to any analysis of insider decision-making, especially as events basically continue to occur, things like “Benghazi has loomed large on his mind" or how "tremendously bold" (not necessarily a good thing) it made him look stands out.  Ditto, his concern for media optics of not using force against Iran in the past.  For Republicans, "Benghazi" involves a lot of b.s. and Obama/Clinton bashing.  Motivated by that?  Ugh.

While the attack evoked the frequent rocket fire that rained down on U.S. troops in Baghdad and other locations in the years following the 2003 invasion, such incidents have been uncommon in recent years. The United States has found itself in the odd position of fighting on the same side as Iranian-backed militias against the Islamic State. But the rocket attacks resumed in recent months as the Trump administration continued its “maximum pressure” campaign of economic sanctions against Iran, growing in intensity until the Kirkuk attack.

The analysis provides the complexity involved here regarding what is occurring in the region ("a mess" as much as "very complicated" both fit) and the dead person's role in it.  There is a reason why Bush and Obama chose not to kill this guy.  Why Obama and others wanted to lower the temperature.  But, Trump wants to be anti-Obama; who wants lower temperatures?  Global warming for all!   Killing a top military leader, close to the leader of Iran apparently, is dangerous stuff.  If one of ours were killed, we would feel a need to retaliate.  The immediate reaction from some parts (talk of domestic terrorism etc.) is a tad scary.

[There was a constant tendency of those -- including people like Elizabeth Warren and Julian Castro [who ended his campaign; reports are Booker actually had good funding numbers though doesn't seem to translate into poll numbers] -- against the killing to lead with him being a horrible person.  This will lead many readers to stop reading and be glad he's dead.  If you oppose this attack as dangerous, lead with that. Don't hedge using the other side's own argument.  Someone noted if the people didn't start that way, they would be deemed "soft" on terror or something.  But, they would anyway if they ultimately speak out against the killing.  At least, don't lead with him being horrible.]

An incompetent asshole who was impeached for only part of his crimes worsened the situation and then had the power to very well possibly make things worse.  A basic principle when talking about constitutional issues here is the importance of the abilities and character of those in power. Because especially in this context one person is going to have a lot of power, in fact, it made some degree of sense (especially in non-modern times) to give one person such power.  Ultimately, a committee might in effect have some role in these things, but one person makes the final call.  Trump has no fucking business being the one to do that. I continue to be very pissed that this is not basically seen as obvious by more people. Including media hedging.

There are some means in place to restrain executive action here, including updating the AUMF and putting limits on actions in Iran. There should be a bipartisan group in place with the Rand Paul types out there to do that. But, as noted in the legal analysis above, one was recently filibustered in the Senate even though the House and a bare majority of the Senate supported it.  Senator Kaine (VP on Earth 2) is pushing for a war powers resolution on Iran.  One thing that can be added is some clear statement on the need to notify top people in Congress (not done here) before killing top Iranian leaders.  Of course, that might cause a veto or involve language that the executive department will find ("find") some loopholes in.

There is a barn door problem there but we need to start somewhere. If Republicans cannot understand a need to have limits here with Trump in power ... well, that's an old line.  The Iowa caucuses occur in a month. Unlike earlier, we do have a reason to start thinking seriously about the 2020 elections.  It is a basic necessity here to have the right result. 

2019 Year-End Report on the Federal Judiciary

“Those principles leave no place for mob violence,” the chief justice wrote. “But in the ensuing years, we have come to take democracy for granted, and civic education has fallen by the wayside. In our age, when social media can instantly spread rumor and false information on a grand scale, the public’s need to understand our government, and the protections it provides, is ever more vital. The judiciary has an important role to play in civic education.”

As Chief Justice Roberts -- as of now -- is due to preside over an impeachment trial (remember that? he was referred, blithely, as "the President" on MSNBC today -- it made me so angry), first we have the usual end of the year report ... dropped at 6P.M. as the year bleeds out.  His message raises two sentiments.  First, yes, civic education and talk of judges doing their job with "humility, integrity, and dispatch" (some thought this was a subtweet to various judges who write blatantly ideological opinions, at times in long pedantic ways, especially when referencing the crisp understandable nature of Brown v. Board)  is on some level fine and important.  I do respect him on some level as a public figure.

On the other hand, given the messenger, well you know a "fuck you" sentiment is hard to avoid.  Democracy? From the author of Shelby v. Holder?  Ah, yes, no mob violence, but it's fine for his ideological friends to be chose by someone who incites the mob.  (Again, I KNOW some words of caution on some level helps, but it rankles ... especially concerns for "integrity" with Gorsuch and Kavanaugh there, doing things like hanging out with Mitch McConnell or getting cheers from the Federalist Society).  Also, he shout outs various judges, including by title, well, let me quote the NYT article on the report:

That judge is Merrick B. Garland, who was nominated to the Supreme Court by President Barack Obama in 2016 but denied a hearing by Senate Republicans. Mr. Trump appointed Justice Neil M. Gorsuch to fill the vacancy.

Oh, that guy.  People also wanted a bit more than such nice words. For instance, what about live coverage (I"m okay with "live on tape," but sure; have at least audio of opinion announcements; show some film of handing down of orders or some such etc.)?  What about ethical rules?  (I'm not sure how that will work for justices -- how will you make them binding? But, didn't he say they were working on that?)  I know you aren't going to talk term limits or anything here, but yes, I'm open to the idea.  I also think de facto we have court packing, and when I think about it, it really upsets me.  It wasn't just an "election has consequences" thing. The rules were abused.

Also, more easier perhaps, maybe improve your own website. Why isn't there one of those introduction to the Supreme Court videos posted on the website, the one you would be shown if you visited?   You have media pages. Add video of justices -- after all them reaching out to educate the public is honored here -- giving speeches or interviews.  Make it more bilingual. etc.  Explain order lists (so many confusing terms).  But, you know, we appreciate -- up to a point -- the civics talk.  Yeah.

See you soon, Mr. Roberts. 

===

I'll toss this here since it's more of an old theme, but it shows how things are all connected and more defensible than some might think. Was listening to the oral argument of Stanley v. Georgia, which protected the right to possess obscene materials in the home.  The advocate referenced a recent case Redrup v. New York, which in relevant part flagged the sort of materials that would more likely be deemed unprotected:

In none of the cases was there a claim that the statute in question reflected a specific and limited state concern for juveniles. In none was there any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it. And in none was there evidence of the sort of "pandering" which the Court found significant in [an earlier dubious case].

The "pandering" case is dubious, but there is something there to the degree the material is geared toward people who might not want to see it. There is a certain privacy angle there.  The Georgia opinion is a mix of privacy and free speech and reaffirms how if obscenity can be banned, it should be for limited purposes.  (The broader possibility of the opinion was lost there as the Court became more conservative ... see recent book review entry).  This concern for "private" matters with exceptions such as to protect children pops up in Lawrence v. Texas (intimate conduct) too.  See also, to go back to the late 1960s, Powell v. Texas, where public intoxication was differentiated (in another opinion by Justice Thurgood Marshall) from private conduct.

When determining the reach of open-ended terms and unenumerated rights, a common law approach that respects precedent and accepted principles such as the types of things deemed "private" and "public" (including legitimate public purposes of regulation) is one thing to take into consideration.  The Georgia case referenced a late 19th Century case that interpreted a statute to not cover the mailing of private letters though an amendment was later deemed to cover that.  The opinion had this interesting phrase: "the purpose was to purge the mails of obscene and indecent matter as far as was consistent with the rights reserved to the people." That last part reminds one of the wording of the Tenth Amendment though a Ninth and Tenth Amendment argument was blithely rejected when obscenity laws were uphold in Roth v. U.S.  See also, the concurring opinion here.

A typical common law approach is for courts to avoid certain things if at all possible because of accepted rules and norms.  Even if they are not explicitly written down.  The case there showed some concern even in the 19th Century for the privacy of personal correspondence. Privacy rights weren't invented in the mid-1960s.