SCOTUS Telephonic Argument

C-SPAN has been broadcasting congressional sessions since the 1980s and now all it takes is computer access to get the feed. SCOTUS taped oral arguments for academic use since the 1950s and itself directly provided audio since 2010. Lower courts, state and federal, have repeatedly been ahead of the curve, including providing video. When justices get all concern-y about video, they should be repeatedly asked about such usage (plus the UK/Canada). Also, what about opinion announcements, people?

It took the Big V to push SCOTUS to even for a limited time joining the live-streaming movement (me personally, this is less important to me), releasing details the last two days. Fox News being the "pool chair" seems about right for the Court. A curious move is that questioning will go by seniority, which is a contrast to the usual butting in whenever it suits (after the new letting the advocates talk a bit period passes) policy.

Some courts are "zooming" things and it seems to be going okay, glitches aside. This method still will allow live tweeting and SCOTUSBlog has set up some educational things including with lower grades that seems promising. Anyway, it should be interesting though how this will influence them in the future is up in the air. Some glitches might make them shy about making it permanent. The best approach when things go back to normal or even now (concerns about visual clues from judges for advocates etc.) is videotape.

Sarah Weddington

With the NYPL closed and not being a fan of e-books, I have been more tempted to purchase used books. One book purchased is the 20th anniversary edition of Sarah Weddington's book on her Roe v. Wade journey. It turns out to be a signed copy so that is a plus.  The various intricacies of abortion led me to be interested in it from high school though from a more academic platform than many people.  (It is surely still has personal relevance to women I know all the same.)  This was shown on this blog.

(Mary Ziegler, a professor also on Twitter and so forth, recently published her third book on the history of abortion as well.)

Weddington's personal journey here started in earnest in the 1960s, including her own abortion.  Again, the two women lawyers involved in the case having a Southern Christian religious background including Weddington's dad being a minister and Linda Coffee's grandfather a deacon.  They are but two of many stories (I read a book, e.g., from the point of view of ministers for choice) in the road to Roe v. Wade.  The opinion itself lists around twenty lower court opinions, each with many people involved.  SW is somewhat the face of abortion rights (her co-counsel did argue in the three judge court but was just at the counsel table at the Supreme Court), including because she was both a legislator and speaker up to recent years.  "Roe" has died, after joining the anti-choice movement.  Linda Coffee (who eventually met a female partner via the classifieds -- one more success story!) went into obscurity and in later years her life had a tough turn.

Sarah Weddington continues on including having opinions about the Kavanaugh nomination.  One thing that has somewhat stayed the same is the contrast between male and female advocates in front of the Supreme Court (three of four of the advocates in the two original abortion cases were women, one a repeat player). For instance, Kimberly Robinson (Bloomberg) noted that though the lead two counsel in the May arguments are women, only one more of the 23 total in the ten cases are.  And, one of the three is the somewhat tainted Kavanaugh supporter Lisa Blatt.* Again, the women in the two cases here did much better than the men.

I only skimmed over the book, so I might have more to say, but one thing that is notable is that as with the preliminary contraceptives cases (later cases had a free speech element and now we have yet another ACA dispute over the contraceptive mandate coming up involving religious liberty issues), the First Amendment issues were tossed aside. This was particularly important because this was a basic reason why the lower court did not provide injunctive relief, which was particularly provided for 1A purposes.  It was seen as an intrusive interference into ongoing state disputes though as Sarah Weddington explained to the justices, the alternative was basically a sort of limbo since state courts did not provide relief because the criminal law was not targeted at women as such.

But, the judges shunted aside the matter in oral argument and gave it a conclusionary handwave in the opinion. As Weddington notes, the argument was that the law interfered with doctors counseling their patients. Justice Douglas in Poe v. Ullman had a section on just this matter and in Doe v. Bolton spoke of the zone of privacy involved. And, the basic core of the abortion right was a women making a decision with her physician, which has both a free speech and association interest.  But, the lower court here did not see a real threat to free expression though the very text of the law speaks of "medical advice" and so forth.

As with Griswold, there seems to be a general understanding here that what is really involved in conduct (see Justice Black's dissent; the majority opinion was written by Justice Douglas, but as noted recently, he ignores what he spent a significant portion of his own dissent in the last case talking about).  The speech aspect did arise in various later cases including directly including in Rust v. Sullivan and the crisis pregnancy case, the first time the majority directly relied on the First Amendment to support a litigant (from an anti-abortion angle that time).   This is true up to a point but also ignores First Amendment interests all the same.

I originally recently had a post on the lower court opinion of Doe v. Bolton as well.  One thing I noted was that it was in some ways fairly thinly argued though it did raise the "potential life" concept that showed up in the Supreme Court:

A potential human life together with the traditional interests in the health, welfare and morals of its citizenry under the police power grant to the state a legitimate area of control short of an invasion of the personal right of initial decision.

But, as with Roe v. Wade, though at least there we have discussion on the use of "person" in the Constitution and how the broad usage of "health" in the D.C. abortion law was a mark against fetal personhood, the matter isn't really pressed:

Without positing the existence of a new being with its own identity and federal constitutional rights, we hold that once the embryo has formed, the decision to abort its development cannot be considered a purely private one affecting only husband and wife, man and woman. 

The Texas law also spoke of an "embryo," which is notable since that would suggest that something like an IUD was not an abortifacient by the terms of the law.  This was one of those wrinkles that didn't come out in argument though "personhood" measures these days overlap with "life at conception" arguments. Compare the Georgia law which speaks of "terminating a pregnancy."  And, yes, this clashing with IUDs was brought up at the time.  Anyway, why is it not "purely private" to abort once the embryo forms?  Also, the opinion not only suggests some role of the husband which clashed with later SCOTUS precedent but noted:

For example, the legislature might require any number of conditions such as consultation with a licensed minister or secular guidance counselor as well as the concurrence of two licensed physicians or any system of approval related to the quality and soundness of the decision in all its aspects.

And, to the degree such things burden poor women, it is not problematic. Again,  the Supreme Court went beyond protecting the decision to abortion beyond the limited categories in the "reform law" (rape, health, fetal abnormality), but held the specific state requirements that were early TRAP laws were unconstitutional as well. The lower court also ignored the provision against out of state patients that the Supreme Court deemed a violation of the Privileges and Immunities Clause.  [There was a reference to  transient "abortion mills."]

A licensed physician is justified in terminating a pregnancy if he believes there is substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother or that the child would be born with grave physical or mental defect, or that the pregnancy resulted from rape, incest, or other felonious intercourse.

Finally, the specific concern for potential life and decision-making on the whole makes it somewhat curious that the lower court argued that the "whole thrust" of the Georgia law was medical.  This surely wasn't the argument of the state in court.  Abortion is a medical procedure but the law was clearly a balancing of interests, a standard reform approach as compared to a few states (including New York) that broadly repealed the restrictive laws.  Abortion was allowed for particular purposes that might be broadly seen as health related but also there was a balance involved generally. Incest or rape was a special case as was some fetal abnormality.

[The quote above is from the law itself.]

It is to be remembered that this was a lower court opinion, one of a range of opinions they had to write. The importance of the matter was unclear and it was just the opening salvo at that.  The cases (and this bothered Justice White in particular) were class actions that broadly attacked the laws, laws that had a lot of specific applications.  Such specifics could be dealt with in later cases, the broad nature of Roe v. Wade in hindsight probably to some degree misguided as compared to the much more limited reach of Griswold.  As Weddington noted, e.g., the advocates didn't suggest some sort of trimester scheme, be it somewhat logical as a doctrinal matter. The reach of the Texas law (with only a life exception) allowed it to be struck down without the court doing much more than treating possible interests (including some time limit) using a broad brush.

The specifics continues to interest me and others, including those with less academic interests in the whole matter.

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* After Neal Katyal did not only endorse Gorsuch but introduced him to the Senate, Lisa Blatt wrote an "I'm a liberal feminist lawyer, I support Kavanaugh" op-ed.  Strict Scrutiny Podcast has praised Blatt (three members are law professors though Leah Litman at least repeatedly works on litigation; Jaime Santos is an appellate advocate), including flagging this contretemps  between Blatt and Katyal (whose name isn't referenced).

Litman was sexually harassed as a law clerk and Santos was an advocate for women in such cases.  So, I understand them being concerned about some sexism there, but perhaps remind that Kavanaugh (whose confirmation made Litman particularly pissed) was endorsed by Lisa Blatt.  The article was flagged by a Slate legal reporter on Twitter and Leah Litman noted the podcast discussion.  A reply referenced the Gorsuch endorsement, which I am not over either.  But, Lisa Blatt's endorsement of Kavanaugh was not referenced by multiple comments when I looked. 

OTOH, separately, another law professor given Blatt's upcoming argument did flag the ethics of Kavanugh taking part in arguments with his supporter advocating.  I appreciate the flag, Nancy Leong, though as I myself said when retweeting, of special importance here is the front and center role Lisa Blatt played.  She wasn't just someone who endorsed him or something.  And, I again flagged the repeat player who endorsed Gorsuch in an if anything more bold type sort of way.  A pair of Trump enablers.

Ohio Primary

And Also: Other than correcting two typos in opinions (one involving the word "edit"),
 we have details on the upcoming telephonic arguments, including questioning by seniority.

When NY is getting some criticism, we will not likely to be too impressed by any Republican governor's response to the Big V, but a few cases at least probably can be found. Gov. DeWine (remember him from the Gang of 14?) is getting some kudos. When Mike Pence, the head of the task force after all (remember?), cannot wear a damn mask when he visits the Mayo Clinic, the governor wearing one in a picture found in the NYT itself is notable.  And, his move somewhat aggressively (including in the face of a judicial order, if not the state supreme court like Wisconsin), to delay the primary election on March 17th is part of that.

Finding sane Republicans in Congress might be a tad harder and we have months to see what Mitt "2012 Republican POTUS Nominee / sole impeachment conviction vote" Romney does regarding endorsing Trump and/or Biden.  Rep. Justin Amash is no longer a Republican and has decided to seek out the Libertarian Party nomination, LARP-ing about being "president" and bringing decency back or something.  One hopes this won't really matter and there was going to be a LP nominee for people to vote for regardless.  Unclear this guy adds many votes there in any real degree, but it still is egotistic assholery.  The link suggests any value will be anti-Trump, but the guy is implying that neither nominee is the decent choice.  Both sides do it!  Enough with that shit NOW.

Anyway, there was a primary, mostly by mail.  Talk about "beauty contests," there actually by this count more Republicans voting for Trump than Democrats for Biden and company.  The website has Ohio as a swing state, okay, though it has been comfortably Republican for a time.  There are more mail-in votes to count (as long as they are postmarked in time) but that count has Biden about 72% and Sanders at 16.6% (there is a 15% floor and with 2/3 votes in, he had something like 15.2%, so obtained a bit of a safety margin there). A late "surge" also helped Warren overtake Bloomberg, both with a little over 3%.   Bronze is bronze.

Originally, Booker had a few votes and Yang none -- he couldn't get on the ballot and was fighting for a write-in campaign -- but as of this writing it is the other way around.  I think this is an error -- the NYT results has Booker with votes.  Anyway, since 11% are split around for also rans, which does amount to more than that in delegates, instant run-off voting has value here too.  Plus, yes, there are some other races though most of them were not competitive either.  Still, at least one of the house races were competitive. And, even then, you have effects when you have multiple candidates.

It is appreciated that we can have elections in these times though this is not actually you know WWII or something. Or, the Civil War, where we even had elections in places in the South in the middle of things. Let's have one of those presidential primary things in New York, huh? Think we can handle it.

NY Presidential Primary Cancelled

According to multiple reports, Douglas Kellner, co-chair of the New York State Board of Elections, received thousands of emails from Sanders supporters pushing for the primary to continue as planned.

“What the Sanders campaign wanted is essentially a beauty contest that, given the situation with the public health emergency, seems to be unnecessary and, indeed, frivolous,” Mr. Kellner said.

The new NY budget, which my assemblywoman and senator voted against, had a provision that allowed the Board of Elections to cancel the presidential primary (which was originally scheduled today but then postponed to late June to take place with local elections) if there was only one active candidate. This was done after Sanders suspended his campaign though he now says that he wouldn't have done it if he knew such a law would be passed (in his announcement, he still sought to get more delegates via upcoming races).  But, he wasn't the only one who responded strongly against the move (Chris Hayes, Stacey Abrams, Cynthia Nixon, more than one member of the assembly and various others did as well).

Over the years, the race was basically decided when New York voted, but I still wanted a chance to put my vote in. And, most races are not competitive.  Not that competitive race results in broad voter involvement -- only a small fraction took place in the AOC race and a close DA race in Queens (district attorneys not subject to the new city instant run-off voting rule) also led to something like ten percent turnout.  And, unlike the average election, at least one loser does get something here -- Sanders would get delegates, which now would have to somehow be apportioned by DNC rule (per a Washington Post article).

On principle, I was wary about the state cancelling the Republican Presidential Primary, but that was by rule because a candidate other than Trump had to get minimum state-wide support to get on the ballot.  I don't see it too sensible that -- especially if you are going to have an election anyway for the Democrats (at that time) -- a major party would not still get a chance to write-in there.  Here, per the NYT article,  "about 20" (of 62) counties will not have any other primary race (which is a a bit sad; AOC has a primary opponent) on that date, and even beyond that, there might be some who just show up to vote for president.  So, there is some effect here, though you have around forty counties, where there will be a race anyhow.

But, what is the health emergency grounds for doing this?  New York by constitutional rule limits absentee voting, but the governor by executive order determined that the BOE will send an application to each registered voter to request one for cause.  Apparently, just sending a ballot without that is not possible, which is not hard to believe given the state's election rules are still somewhat convoluted.  The problem with using mail-in votes, again noting 2/3 of the counties will still have elections, to allow everyone registered who wishes to vote for president is unclear.

It will to some extent require more staff hours, but is that really that problematic?  Again, even there, it is unclear how much more effort it really will entail since many of the most populated areas like NYC will already have races in many places. The importance of allowing people to vote -- call it a bit irrational to care if you like -- here seems rather high too.  There is a chance apparently that there will now be a court battle. That too requires resources.  And, the distrust this advances should generally be avoided, if all possible.  Yes, this is not like cancelling the November election or something though even a tiny aid to trolls there is also not good.

I rather hope that this is changed though yes I won't be too crushed if my chance to vote for Elizabeth Warren (like my chance to vote for Dean or Edwards) is taken away from me.  Anyway, with lots of elections (other than Puerto Rico, at least for now officially scheduled) back-loaded to June with a few in May, today is when Ohio turned out to officially vote instead of March.  There will be very limited in person voting, but mostly by mail.  But, the complete official results will not be known until early May.

Voting is a special act, even if the person you vote for will not win. Protest votes there at times are ridiculed (the whole third party deal), but again, it isn't even merely symbolic here. In these times, basic republican (small 'r') acts are if anything more precious.  Thus, e.g., we have many PSAs on filling on the census.  Letting each person, by mail if warranted (if opening polling places just for this purpose is seen as frivolous), to submit their primary vote for president here to me is something each voter has the right to ask. I hope this decision is changed.

Andrew Yang has sued over New York along with seven registered NY voters pledged to him.  The lawsuit in federal court starts with the famous Benjamin Franklin quote on us having a republic, if we can keep it.  Part of the concern here is that the people involved are running to be delegates to the Democratic National Convention, which again is not simply a "beauty contest."  It argues a federal lawsuit is the most practical approach.  It notes the counties with no other races are more thinly populated areas that are less liable to get the virus anyhow.  And, it argues that the move will suppress the vote in other races, races that tend to be less supportive of mainstream party members.

I think they have a good case but probably an uphill battle. There is time especially since I saw one reference that ballots will be mailed late May for the late June election. Though Puerto Rico, for one, did not reschedule their presidential election yet, no other state so far is doing this. This is not just burdening voters (Wisconsin) but cancelling while was going on, again denying candidates the chance for delegates and delegates a chance to represent the party.  And, the voters. 

[I added the lawsuit information and put the Ohio results in another post.]

Virtual Supreme Court Watch

Earlier this year, a divided Supreme Court gave the Trump administration the green light to enforce the “public charge” rule, which governs the admission of immigrants into the United States, while the government appeals orders by district courts in New York and Illinois that blocked it from doing so.

There was a conference on Friday and two orders rejecting a request to put the "public charge rule" on hold given the needs of the Big V.  This is another case where it would have been nice if they explained themselves, it not some run of the mill matter.  Maybe, it was a reasonable move, especially because the justices did allow the parties to petition the district court (which originally supported them anyhow) to do so. New York at least has reportedly announced plans to file an emergency order.

While this [Walmart] visit (which some might characterize as a stunt) may have made a valid point in this litigation, this court cannot help but wonder whether the Church in this case adequately appreciates the fact that this case is not just about itself and its own rights, but the rights of the members of the public and their families to stay alive.

Meanwhile, the lower courts continue to deal with the Big V in a variety of ways, including abortion and religious liberty claims. One Mississippi district judge compared two such claims -- one for internal services, the other drive-in.  Noting that even the latter very well is not without risk, including to elderly parishioners and the possibility of mixing, he made a Solomonic sort of judgment accepting the latter in the specific context.

Let it be noted that in general, from the Pope on down, religious institutions often have generally be sane regarding the need for limitations here. Then, there is the mentality shown in this Kansas story, where lots of people close together in close quarters, including many older people, is compared to a "strip mall" which is rather vague but likely small numbers of people at places for limited times and more spaced out.  It is doubtful that a place like Kansas was truly discriminatory against churches.

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The thing that stands out among the SCOTUS orders is a request for briefing in two (not the state case) Trump financial cases on the relevancy of the political question doctrine.  Basically, we will have to wait and see (until June, I guess) what happens there.  As usual, there are various footnotes there for those interested.  For instance, Alito accepted sending a bunch of cases back to apply the new unanimous jury case (Thomas dissented without opinion) with the proviso that SCOTUS wasn't stating any opinion on the matter if the question was correctly raised there. 

The justices also -- moving to the virtual order portion --  via a brief per curiam -- declared the big New York gun case moot since the state changed the law.  Kavanaugh agreed but also sent a message that he was with the three conservatives in dissent (via Alito) on the wider battle -- how strong to apply the 2A.  That does have to be eventually settled, especially given the lower courts have split somewhat on gun regulations outside the home.  Liberals might not like the personnel, but settling constitutional questions of that caliber is they should admit their job.

[More on the Kavanaugh Watch -- this is a good discussion on the 5-4 statutory immigration ruling referenced in a past entry, including shades of the gun case, how policy priors colors a statutory interpretation.]

Justice Alito in dissented started off thusly: "By incorrectly dismissing this case as moot, the Court permits our docket to be manipulated in a way that should not be countenanced."  Calm down there, Jan.  It is really the other way around: the docket was manipulated to settle Second Amendment questions by not declaring this moot and/or improvidently granted before oral argument.  Note that Thomas didn't join a small portion turning on a factual ground for mooting the case.

Alito was the sole dissenter in the big PPACA case (if not getting much press) but Thomas/Gorsuch also didn't join the portion relying on legislative history as a back-up argument.  A sort of petty sort of thing familiar to Scalia watchers.  The other opinion (by Roberts) jumbled the usual wings some and held that an annotated legislative code could not be copyrighted, the dissent (Thomas/Breyer/Alito & RBG/Breyer -- not a good day for Alito) treating judges and legislators differently.  Thomas threw in a footnote that Breyer didn't join.  The website originally mixed up the hyperlinks in the Georgia and New York cases (wave over the links, you get a summary) but this was eventually fixed.

Here are two analyses before and after the health care ruling, which suggest it is a positive development that works against one of many Republican attempts to screw over PPACA.  Yes.  Not that slang term.  The Medicaid ruling was very problematic and the birth control mandate rulings confused things but I guess after this and King v. Burwell, we can give Roberts a partial clap for some sanity in the litigation thus far.  And, we will next have to deal with an argument even some backers of that last stupid lawsuit think is really stupid.  Maybe, the end is nigh?

The Georgia copyright case also is an interesting little case, including again that atypical split.  There is a reference to ta circuit court ruling by Justice Harlan with then Circuit Judge Taft -- this was before he was President; Taft would eventually be Chief Justice.  And, other than the usual trend in recent years to try to find a clear rule, the opinion promotes an equity approach.  There is a concern the average person would only have access to an "economy-class" vs. "first-class" version of the statutory code, the latter being a more up to date and accurate (such as court action that protects consensual sexual behavior that on the books appears criminal).  It makes sense that the justices would find this specific matter of special interest though the dissent differentiated judges and legislators in their own way.

(Breyer didn't join a footnote that spelled out some details, but Thomas in dissent in part noted: "Setting  aside  summary decisions, the reader of a judicial opinion will always gain critical insight into the reasoning underlying a judicial holding  by  reading  all  opinions  in  their  entirety." I gather the majority would be willing to sign on to that.) 

This entry was edited primarily to add the copyright content but as I said before, after the opinions dropped, rules of procedure material was as well.  And, eventually, there was an edit to the copyright case.  OTOH, though the opinion provides one, the Online Sources Cited page has not been updated to reflect the Georgia case citation.  There will be a conference on May 1st.

Baseball in the Time of the Big V

Tournament or bracket-style baseball? Bring it on. Universal DH? Sorry pitchers, but unless you’re raking from the nine-hole, you can sit this one out.

This is from an article about the potential changes to fit the times if baseball comes back this year.  Hey, take that anti-DH stuff to the AL! You report for the METS! Also, if part of the concern is to shorten games given a reduced period of time / need to fit in more games given there might be fewer places to play etc., wouldn't the DH extend games?  Having the pitcher hit, which adds additional strategy (including pinch hitters, double switches etc.), to me is a net positive.  Mets pitchers repeatedly are for various reasons amusing to watch hit too. 

To me, it is rather stupid really to think otherwise -- a single minded offensive mindset that again clashes with the additional whine that the game is too long.  It is one player out of nine.  The main benefit amounts to allowing a defensive liability (often older) hit but the NL approach as noted introduces new slots too.  Anyway, we probably have too many players and teams as is.  Extending the life of a few bats is not necessary.  But, apparently some people like that sort of thing.  Tongue out.

At the same time, MLB has to be careful with its desire to squeeze in as many games as possible. If that results in the season trickling into late November or December.

Currently, Mets baseball are a lot of specials, Howie Rose (radio vet) joining Twitter years after his Mets daughter (a spicy media rep herself) and replays of a lot of the same games.  SNY started with a replay of last season (only the wins, which is a bit stupid), using a sort of marathon approach of games during the day.  I think they should have basically continued doing that with previous seasons.  Work backward or something.  There is also the conceit (I checked out one such game) of the SNY trio calling a computerized game.  It was pretty good really, them being into it.

I already saw reference to baseball in South Korea and Taiwan with empty stadiums, robot fans and so forth. The talk is now to have some sort of schedule in a Spring Training location, such as Arizona, which as Gary Cohen noted earlier still is a rather complicated and dubious enterprise.  But, with talk of "re-opening" (as if we were in "lockdown" for years) already in places like Georgia and the NYC mayor flagging June 1st as a date when a "road map" will be released [for now, Gov. Cuomo continued the "PAUSE" until at least May 15th], figure it is rather likely something will come out here.  The next step is likely not to be normal, mind you, but some middle path. This is likely to include sports.  Basketball would seem a lot easier to do though.

Anyway, I'm game, shall we say, for some creativity.  OTOH, realizing the financial needs and so forth, trying to force too many games in is problematic as well.  It is hard to tell what will happen but a basic issue here is that there is likely not only to be less time [we already lost not only a month but there will need to be at least a week or two of spring training like preparation, I gather] but for now the teams aren't going to be playing in their normal locations, traveling around the country. So, that is one more reason you need to condense and/or fit games in less places.

I rather the best product possible here even if it means only a fraction of games. If this amounts to, let's say, half a season, make it half a season. Don't try to go out of the way with seven inning or whatever affairs with people on second base to force conclusions.  Some of that might be a good idea, but do not overdo it.  Maybe, do a mix.  And, just to note it, along with the DH, I think normal extra inning games are okay.  If you are at home, you don't have to watch it all.  If you are going there, and you cannot survive a few extras a year that go past let's say 11 innings, how did you survive watching nine? (Many don't.)  There are a rather few extra inning games.  If you want to avoid suspended games or deal with special situations like DHs or All Star Game situations, fine.

There were various tweaks in recent years like pitch clocks and the like. One that was to start this year was that a reliever (or "opener," I guess!) needs to be there for at least three batters.  The exception, of course, would be someone who comes in to get an out to end an inning.  The person doesn't have to hang around to pitch to two more batters, I presume.  But, if a pitcher is starting a second inning, as I understand the rules, he would have to pitch to at least three batters [one of the new fake automatic walks can help here].  So, though a shortened game might make this less notable, this new rule has various effects, including the tail end of a starter's day.

(A pitcher can be removed for an injury, but if a manager tries to stretch someone, it looks like they might be stuck with him for three batters, not one or two.)

As with everything else, this is just blather on my part in some fashion, and what will be, will be.  There are changes that are good, there are changes that are bad.  I'm not horrified at instant replay though it is likely overused.  Pitching clocks probably helps some over the top "rain delay" types as does limits (rarely met) to mound visits. I'm not sure about this three batter rule though pitching changes do feel overused at times with the presence now of an additional bench player only adding to the possibilities there.  And, in certain contexts, even other changes might be okay.  I like the DH though.

January (lead-up to/impeachment) and March (Part 1 -- normal; Part II -- not) seemed rather long.  Not sure about February.  Guess ordinary.  April seems to have gone fast.  Perhaps, it is a sort of weird normal abnormality.

Politics and So Forth In the Age of the Big V

After reading a book by Sen. Bayh about the Twenty-Fifth Amendment, I am now reading an autobiography (with a co-author; the book came out shortly after the subject died of breast cancer) by Marvella Bayh.  In another era, she might have been in office herself -- she was elected "President" as a teenager as part of the Girls Nation program and showed a lot of promise as a speaker. This can seen in this debate with someone who is currently the subject of a series.  Since this pandemic if anything leads me to do less (even though I'm inside more), I'm only in the early pages, but it is a good read so far.  She comes off as a person worth knowing.

I see that the Marvella Bayh actually died around this time, so this is well timed.  The first link is a review of the book and coincidentally there is a reference to a request for information regarding a threat to academic freedom during the McCarthy period. The author of the review was researching and wrote multiple books on the topic including a later one that I myself read.  Given all the material I have read over, it is not surprising that things overlap, but such "hey" moments amuse me.

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One bitten, twice shy and all, but politically, if nothing else, things look optimistic. Somewhat related to a theme of that book, there is some disappointments about the reach of possibilities there, surely.  As someone who wanted a woman to be the nominee.  As someone who realizes the limits of what will be accomplished, especially given the hole we have dug for ourselves in the last few years.  And now this.  I checked on Twitter and saw -- I'm not of the "f Twitter" mindset; too many good people there, but it does have a dark side -- and there is a hashtag for Biden to step aside.  Apparently, there is a clip of the Biden accuser's mother calling Larry King back in the day.  Her mother?  Come on.

Prof. Colb (the wife of the name leader of Dorf on Law & who doesn't regularly blog there these days) looked at the bigger question. Yes. We need to not think "Believe Women" is some absolute rule that means the women are always right or that nothing else matters.  The path to insanity was seen when there was a big push, now mostly forgotten, for the Virginia governor to resign because back in the 1980s he did something in black face or something.  I had people call me out for saying "whoa now." 

The Biden thing is a bit less absurd than that though given his m.o. (violating social distancing, let's say) and so forth, the allegation seems dubious.  And, we are talking about one thing from the early 1990s about someone who already was vetted to be vice president!  This was before the #MeToo Era as such but it still was after sexual harassment and so forth was a thing after the Thomas years.  I write more there, but even Kavanaugh is a case in point.  It was not just something he allegedly did when he was a teenager and then not every allegation was treated the same.

Biden will be the nominee and an allegation regarding events that come off as unlike him from the early 1990s probably won't knock him down. And, it should not.  The essay however is good beyond that from someone who is a strong advocate for the rights of women (and animals). Then again, Sherry Colb is nothing if not a rational sort, mixed with her passion.

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As to "this," I am tired of the people who make this out to be years into it.  There are already moves (such as in Georgia) to "re-open" when even New York has not been completed "closed" and that for less than two months.  How did we last WWII?  The future there is far from clear and in fact it seems on some level rather soon to here positive talk about plateaus and such.  Over fifty thousand people died in a couple months, a fifth in my city.  So, I'm going to be careful here.  NY will for now be on "PAUSE" until mid-May for now.  The amount of effort being done, including by my local state senator, is pretty amazing.  We are talking something that seemed to come out of nowhere (a misnomer and perhaps there was some behind the scenes efforts before March, but it seems that way) and the efforts to educate a million children alone is impressive.

There have been some efforts to provide snapshots and so forth of the people who have died, including Elizabeth Warren's brother. Chris Hayes, who has been very angry about the response from up high etc., had a segment the other day, including of people connected to his staff.  NYT had a nice obit about an immigrant tailor.  The faces deserve to shine out.  My sister got sick but is well now from what I can tell.  She's a NYC school teacher.  It all personalizes it.  It also reminds that though there is a horrid death toll, many more get over it.  People were talking as if the PM of the UK was likely to die.  He has recovered.  Let's remember that.

I have lived some history.  Sigh.  Note the new Big V label. A bit later than it should have been added, probably!

Virtual SCOTUS Watch: Thursday

This might be called "statutory" day at the Court though the divisions do also overlap with some wider constitutional interests. 

We have immigration law (5-4 by normal division, conservatives win), clean water (6-3, Breyer with a "seven factor" test getting Roberts and Kavanaugh) and patents (unanimous in result but Alito/Breyer and Sotomayor disagree on reasoning).  There is some strong disagreement on what the law means in the first two with lesser disagreement whole thing is twelve pages long with Alito writing a paragraph) on the holding in the last case.  The liberty and property rights of the first two cases also suggest why there is such disagreement with second a relatively long fifty pages.

The SCOTUSBlog live blog summaries the water dispute thusly: "This was a case about the Clean Water Act and whether the County of Maui needed a permit when its wastewater facility released treated water into the ground, which then traveled about a half-mile through groundwater to the Pacific Ocean." The opinion taking a middle path.  The immigration case regards rules for removal for those who commit crimes, we having another sympathetic case of those who committed crimes some time ago being affected.  The SCOTUSBlog opinion summary notes the patent dispute is a minor one. Not knowing much at all about patent law, I'll grant the point.

I'll note as well that many commentaries on the non-unanimous jury case do not reference the special case of Puerto Rico.  And, in lower court news, one federal circuit recognized a basic right to education (at least to the level of basic literacy). Various Supreme Court opinions recongized the importance of education, particularly Brown v. Bd., but left open the question.  The lawsuit was sent back to continue, so we have a ways to go. Plus, I think there is a basic question here -- to the degree a state (and all do) provide public education, it should be provided equally.

And, these cases always tend to raise questions of what other positive rights should be offered, such as food or police protection.  A key difference here, putting aside the basics of education to citizenship (thus the felt need for education), is mandatory education laws.  We are not mandated to eat.  If the state forces children to go to school, and this is referenced in the opinion, there needs to be grounds to do so. And, once there is positive action by the state, the state has more responsibility.  It cannot force children to spend seven days at school, e.g., mainly to play sports or something.  This suggests education is even different from parents having a basic obligation to feed and clothe their children.  There, e.g., if children are taken in by the state to a group home, there would be a minimum standard of care.  But, here, there is a sort of across the board involvement.

We shall see how this goes, but other countries have recognized some basic right/obligation of the government in such cases and a human right to education (admittedly, other things too) has also been recognized by international human rights law.  Perhaps, we should catch up. Conference scheduled Friday and additional orders on Monday probable. Next opinion day is to be determined. And, May will bring more orals.

[There looks to be opinion(s) on Monday.]

Virtual SCOTUS Watch Continues: Monday

On a very procedural but coronavirus-related matter, the court granted the motion of some of the respondents in the DACA cases for leave to file a supplemental brief after oral argument. The brief, which argues that now would be a bad time to end DACA because a significant number of DACA recipients are working in healthcare at this critical time.

After the conference last Friday (will be one this Friday too), orders on Monday and opinions Monday and Thursday was the plan. As usual, if now purely virtually, orders came first at 9:30 AM on Monday.  And, per recent practice, we had a SCOTUSBlog live blog (the source of the quote) and live tweeting as it went on. Let's see how that goes when we have live oral argument audio available next month. A computer fraud case with interesting facts was granted, Thomas/Kavanaugh dissented from a question involving waiving sovereign immunity and various odds and ends including this tidbit via the live blog:

As Steve Vladeck just noted on Twitter, the Court just denied a motion for divided argument filed by the U.S. solicitor general in a pair of cases involving Ford Motor Co. that will be argued next term. And as Steve notes, there isn't necessarily a rhyme or reason to when the Court denies those motions, other than to make clear that the motions aren't granted every single time.

The case on some level seems of limited relevance to the SG, but that usually doesn't stop them from letting them do that.  Let's hope we have a new SG team by then anyhow.  As to this one, a response to New York and others asking the "public charge" rule to be held up since it would be particularly problematic in these times, the response was predictable.

Moving on to the 10AM rulings, we had three, including somewhat curiously the first signed opinion by CJ Roberts (involving a Superfund clean-up, which was somewhat unanimous though T/A/Gorsuch split from the majority on certain issues).  A patent case by RBG was 7-2, notably mainly for Sotomayor joining most of Gorsuch's dissent, involving judicial review issues. The big decision, the result to be fairly unsurprising though the breakdown was somewhat open to chance, was by Gorsuch and held that for serious crimes a conviction cannot be by non-unanimous juries.

The defendant here was sentenced by Louisiana, which later changed its rule leaving Oregon and Puerto Rico as the only places (the federal government by rule, PR a special case, the states until now by choice) without that rule.  Note that this applies to serious crimes; multiple states last I heard do allow split juries for misdemeanors.  The tendency of the current Supreme Court to have one rule for the states and federal government regarding the Bill of Rights as well as the oral argument led me to expect the result.  OTOH, the opinions left a lot to consider.

When the Supreme Court made clear that the Fines Clause was incorporated, it took about ten pages.  There was around ninety pages of opinions here split in various ways, though the net result was 6-3.  Justice Thomas wanted to use the Privileges or Immunities Clause.  Kavanaugh wanted to talk about stare decisis (per that essay, it being "for suckers" is a bit harsh, but put him in the median position at least). Plus, the old rule was bad and racist. Sotomayor mostly went along except for one part of the discussion involving the key precedent here and wanted to emphasis the old rule was really bad plus racist.  Gorsuch with the majority though he didn't get five votes on all over it.  Alito with the dissent with Roberts and Justice Stare Decisis Kagan though she didn't go along with what amounted to a subtweet to the liberals complaining about certain precedents being overruled.

Justice Alito started off concern trolling about the tone of the majority opinion (I did find Gorsuch's tone snotty, but Alito is a bad prophet here, including if you kept on reading) and upset about the various justices calling the non-unanimous jury rule racist.  Yes, there are various jurisdictions with the rule and in theory you can defend it to some degree. But, the origins in Louisiana and Oregon are dubious.  Then, he argues that even if that is so, we should ignore that history now (let's see how that works in religious liberty cases).  OTOH, even today, as John Legend and others flagged, there probably are racist implications in practice at least in Louisiana.  And, it is a dissent.  It isn't a concurrence in judgment.  Kagan going along is not really a surprise though some parts of it is a bad look.

[As a historical matter, a unanimous jury is standard so it is not too surprising that Gorsuch and Thomas went along.  Kavanaugh is not some kneejerk prosecution type though leans conservative.  Roberts is actually a bit of a surprise, especially given the tone of Alito's dissent.  Given the limited reach to the opinion as a practical matter, I can see Roberts joining the majority.  I also want to emphasize the Puerto Rico issue including that technically the opinion doesn't even address the matter since it concerns incorporation.  Territorial matters here are of different caliber though since precedent talks about protection fundamental liberties being protected, the tenor of the opinion makes it hard to see how it would not apply if pressed. I wish Justice Sotomayor responded to Alito on the point.]

As compared to the dual sovereignty case involving double jeopardy, though even there the numbers might be small in practice, the reliance issues here are dubious. Again, a single state actively has it.  The Puerto Rico issue (the big bankruptcy case is pending; there was a push by one party there to overturn the Insular Cases, but the justices weren't keen) is a curious issue that only Alito referenced (one might think Sotomayor would too though non-unanimous juries also in practice crowd out dissenting racial etc. voices so she could go another way).  And, Alito also flagged the also not referenced by others grand jury issue, a sort of outlier (along to some degree the 7A) that has yet to be incorporated.  OTOH, unlike this, that would be a major change and the precedent isn't tied up with confusion.

On principle, I can see some logic to allowing a non-unanimous jury but there is a long history here that understood our jury system involves the general rule in place most places.  And, that too important, since when 49 states and much of the federal government has a particular due process requirement on a major matter, there is a general understanding it should be deemed the rule for all.  This is far from compelled, yes, but there are also other reasons to go with the flow including the importance of minority viewpoints to have the power they have and the extra protection to liberty provided.  And, yes, Louisiana has a tainted history and itself changed.

To be continued later this week.

Bowers Again

In 1890, the famous law article discussing a right to privacy was published, which I discussed some years back.  Ultimately, the article was concerned specifically with limits on publishing.  Thus, the impetus was generally concern with social media coverage of the day, if not the mythical wedding of a daughter that supposedly was the problem.  And, the citation of a right to privacy in Georgia courts over a hundred years ago was a result of usage of a likeness in advertising without permission.  The opinion might have done with some editing -- it rambles on and on.

Anthony San Juan Powell was charged in an indictment with rape and aggravated sodomy in connection with sexual conduct involving him and his wife's 17-year-old niece in Powell's apartment. The niece testified that appellant had sexual intercourse with her and engaged in an act of cunnilingus without her consent and against her will.

Anyways, the opinion was cited about ninety years later when the Georgia Supreme Court held that heterosexual sodomy (the principle was applied to same sex sodomy too) was protected by a state constitutional right to privacy as well.  As general seems to be the case when such sex crime cases arise, the facts are not exactly typical or here charming. The case arose out of what seems to have been a rape [or incest] of a seventeen year old niece but for whatever reason he was only convicted of sodomy. This pops up occasionally with fornication, consent harder to prove.  The two key homosexual sodomy cases reached the Supreme Court because the police caught the parties in the act, a not usual occurrence.

A state constitutional approach was in part deemed necessary because Bowers v. Hardwick around a decade before held that same sex sodomy was not a federal constitutional right.  It specifically noted that it was only deciding that question so in theory heterosexual fornication was still an open question.  The Bowers dissent among other things reminded the majority that the law in question was an anti-sodomy law in general.  The reverse was the ultimate case here -- the majority's reach knocked the law as a whole down when the specific case seems like incest.

The state court basically held that it was a private sex act, for the purposes of the case consensual, and thus protected by the right to privacy.  The case, except perhaps by citation to other sodomy cases, does not really try to refute the traditional reasons why such laws were deemed a "public" matter.*  Nor does Bowers, which first denies it fits within privacy precedents and then says the behavior has been disfavored by law for a long time.  The dissents as well as the opinion below challenges this, showing how sexual behavior does fit within privacy precedents, particularly in the home.

No connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated, either by the Court of Appeals or by respondent.

As noted by the other opinions, the right to privacy is not so limited. They writ large (per one decision) involve "the right of an individual to be free in action, thought, experience, and belief from governmental compulsion."  It isn't very hard (as seen by many opinions that went the other way) to reason this out to apply to same sex relationships.  The lower court noted that homosexual relationships very well can be comparable to marital ones.  The intimate association that was recognized in various opinions, if honored with an open mind,  very well can be so demonstrated.  The majority did not provide anything refuting the argument below on the point.

The majority also rejected the citation of Stanley v. Georgia, holding that it really a First Amendment case.  But, as noted by the primary dissent, its citation of Justice Brandeis' famous privacy dissent (which was a reboot of the law article he co-wrote like forty years earlier) shows it is at best a mixture of the First and Fourth Amendment.  As noted by the lower court as well, "the constitutional protection of privacy reaches its height when the state attempts to regulate an activity in the home."  Griswold involved use of contraceptives while having sexual relations in a bedroom. A later case deemed the decision fundamental for the unmarried too.  Why is it not so for homosexuals making a different form of sexual decision?

Against this background, to claim that a right to engage in such conduct is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious.

And, then there is the infamous labeling of the claimed right here "facetious," which was seen by many as particularly crude.  The specific argument is that the long time criminality of the act makes the attempt to fit it as part of the right to privacy a very dubious thing.  But, as Justice Stevens notes, merely because something is traditionally frowned upon [put aside that as applied, the law appears arbitrary anyway]  does not mean that it lacks constitutional protection.  The law develops.  Justice Powell joined the opinion. What about abortion, whose historical criminality was also cited against Roe v. Wade?  Time past that by as the facts show and the same is true here.  Historical practice did not save a broad number of laws from sex discrimination claims or a range of sexual materials from protection.**

The majority was concerned about stretching the principles of past cases too far (three conservative justices were not too gung ho about many of the cases, Powell was uncomfortable with gay cases generally and the fifth was O'Connor, more conservative on this issue early on).  But, their reasoning was dubious.  Justice Powell concurred separately to underline that Michael Hardwick was not convicted, leaving open a potential Eighth Amendment argument in some other case.  But, as noted by Stevens, the law in practice was applied "to those who may be arbitrarily selected by the prosecutor for reasons that are not revealed either in the record of this case or in the text of the statute."  The facts of the case suggest this (one of Peter Irons' books has a chapter discussing it) from the original event outside a gay bar. 

It might have been a bad time to seek out a Supreme Court judgment protecting a broad right to have intimate same sexual relationships in the Reagan Administration/Burger Court mid-1980s, but it also did not have to reach out to broadly go the other way either.  As Stevens noted: "At the very least, I think it clear at this early stage of the litigation that respondent has alleged a constitutional claim sufficient to withstand a motion to dismiss."  A limited ruling that Georgia did not have the power to hang over in theory a possible criminal prosecution on the facts of the case while letting the rest linger (no Supreme Court case directly dealt with various heterosexual matters like cohabitation or fornication either) would have been a sound policy.  

As is, the matter continued to develop in state courts and eventually the Supreme Court overruled Bowers in Lawrence v. Texas.  Since precedent is a concern these days, note how the basis of the original case was shown to be built on sand and events passed it by as well.  The development of homosexual relationships in that fashion made the "facetious" nature of fitting it within other precedents akin to minimum wage laws once being seen as an unjust class legislation burdening the liberty of contract. 

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 *  See also, e.g., Roe v. Wade saying that any Victorian moralistic reasons for abortion laws were not relied upon by the state, so they needn't address them.  Thus, the opinion mainly dealt with health and the potential life issue, which itself was not covered much.  The opinion cites the particular burdensome nature of pregnancy on women, but it was left to a later case to spend much more time on the sex equality issue.  

Likewise, a full accounting of anti-homosexual sodomy laws would cite things like the traditional support of one form of sexual relationship and sex roles in general.  Or, how marriage itself was seen a narrow winnowing of sexual relationships and fornication laws would be necessary to guard against sexual libertine ways.  Non-procreative sex would be particularly problematic in part since there is no pregnancy safeguard.  This would underline how sodomy generally would fit in the wider privacy rights that the birth control cases honor.  Such matters are now seen as "private" in nature even if they have some sort of public implications. 

** A unanimous Court, even after the Supreme Court somewhat broadened the ability to prosecute obscenity, held that Georgia could not prosecute the showing of Carnal Knowledge. The opinion's inclusion of a somewhat risque movie review would be disfavored not that long ago.  Recall once a state court only cited the titles of certain birth control materials given the nature of their contents. 

Wyoming Primary (Caucus) Results etc.

"The most important thing right now is to save lives and contain the spread of COVID-19. But we will take all necessary actions to guarantee the right to vote in an event of great importance for the Nation and Puerto Rico," said Rodríguez in a statement.

With the Big V (amusing photos) postponing so many primaries (Puerto Rico was postponed twice and has not been rescheduled yet; multiple ones became all mail-in), on paper the primary season is far from over. OTOH, Sanders and now Warren both endorsed Biden as did all of the leading candidates and multiple also rans (did anyone not do so?).  So, though Sanders made some noises regarding getting delegates to have inflence at the convention (his 900 or so would not anyway?) and to keep his message alive, we are sorta going thru the motions. 

Nonetheless, voting began when it was still a competitive race and state Democratic Party officials say they’ve taken pains to ensure the votes will be counted and delegates will be allocated fairly.

The latest, with results coming out days after the final date for mail-in votes, is Wyoming. At the end of the month, we will have Ohio, which was originally going to come a month ago.  But, Ohio is actually governed by one of the more sane Republican governors, one that unlike Wisconsin was not blocked by the courts.  Wyoming was originally going to be some mix of caucus and primary with ranked choice voting mixed in with a 15% floor (thus avoiding the possibility of some states where a significant chunk of voters weren't counted since they supported also rans).  Fourteen delegates doesn't matter much but the key is running things sanely.

Meanwhile, though who knows how important it is, there is talk of Biden picking a running mate.  Some people really want Warren though this to me seems a heart over head deal -- so, e.g., two "rules" are set that to me seem questionable to meet (does Biden really want to power share?). Warren seems best where she is with a younger and more checking some box (and maybe someone Biden is more comfortable in) candidate more appropriate. As to doing it sooner, he is 77, this is a pandemic and it can fill in the lag in the months of not much happening.  Sanders endorsed him, so he is not stepping on any toes, right?  And, talk of him announcing other people (such as potential Cabinet names) to reassure and cause excitement.  We shall see how that goes, but probably rather the v.p. picked soon.

And, thus we wait, with a lot of races postponed until June, including New York being done along with state races in late June.  One thing that this can all do is to get a sense of how mail-in voting works, including dealing with any possible problems.  The clock to start the process there is running out.  Debate can be continued regarding fixing the rules and ultimately the goal should be some sort of national legislation. This also brings up concerns about funding of the post office.  And, as touched upon in links found here, the House at least looks to be changing rules to allow more proxy and remote voting. 

As to the Wyoming results ... results were released about noon local time today.  Biden won in a 72/28 split which would be 10/4 delegate-wise if it is split purely by percentage.  Various places also factor in specific district wins.  Sanders won 56/44 in the 2016 Wyoming caucuses.  I realize on some level, this is a bit silly but there is a certain charm to watching the results as would be the case with let's say looking at baseball scores even when the playoffs is not a possibility.  And, respect for the overall enterprise, including the simple act of voting and taking part in the system of republican (small 'r') government (voting but a part) is advanced as well.

ETA: Checking later on, 4/22, a 12/2 split is estimated. 

Roe v. Wade Oral Argument

I have listened to the oral arguments to Roe v. Wade multiple times and there still is some value in doing so. Listening to the first argument, as a whole, I was impressed by Sarah Weddington's oral argument, this being her first two times in front of the Supreme Court at under thirty years of age. She was a state legislator, worked in the Carter Administration and then was in academia.  She wrote a book in 1993, which I read years back, for which a new edition was published twenty years later.  But, I know of no other appellate arguments that she handled.

Other than not providing the amount of specifics to the ultimate constitutional right to privacy that might be warranted, and this was when the Supreme Court was still open to disposing of the case on procedural grounds anyhow, she covered all the grounds well. She dealt with the technical issues as to the injunction, vagueness, the arbitrariness of the law in practice (including the woman not being the criminal) and a summary of the fundamental importance of the right to the woman.  Texas was an easier case here since for technical reasons, it was harder for women who needed an abortion to obtain relief in state courts, the law was so absolute (only life of the woman exception) and even an old state precedent that said the woman was the victim state abortion laws were intended to address.

The re-argument had a bit of redundancy, the justices going thru the motions a bit, to it though SW did spend a bit more time to focus the privacy argument more based on actual cases. She seemed a bit ill at ease early on when being left to go on for an extended period of time. Also, clearly, it was a mistake for the brief to skip over the Hippocratic Oath, from Justice Blackmun's question (she gave a partial answer, but also that was partially a philosophical dispute that also clashes with the right at issue here).  And, at the end of the argument, she cited the Baird birth control case that was decided in between the two arguments.  She slipped a bit as to the weighing of the theoretical rights of a fetal person, doing pretty well, but she could have more clearly said in the end even then, it is not the same as infanticide as one justice alleged (the whole violinist scenario). 

The state did a rather lousy job, floundering the first time trying to find a way to argue there was no standing; the second time a new advocate laid on thick the rights of "children," which basically goes too far in the other direction. Georgia had an easier time of it since they actually did have compromise law. It was possible to argue that even though (since states would not be able to have less restrictive abortion laws) it is not clear exactly what the personhood status of the embryo and fetus, the "life" involved is a complicated nuanced question that states should have the discretion to regulate based on modern day knowledge. 

When Justice Rehnquist is wary about the breadth of your argument, it is probably a red flag.  As noted by SW, the previous opinion that broadly allowed "health" to be a reason for D.C. abortions suggests the unborn are not persons, a point cited in the ultimate opinion here.  Also, repeatedly, the state advocates could not answer basic things, including at one point even the text of the Fourteenth Amendment, which slipped Justice Stewart up too (e.g., natural born citizens v. personhood).  The infamous opening "joke" in the first argument about two pretty ladies was not the only embarrassing moment.  For instance, once Justice Stewart made a quip about the women making the choice by living in Texas, causing laughter, and the advocate was taken aback and seemed annoyed ("can I continue"?). 

SW also finished strong.  Yes, it had a few slip-ups, but what argument, even by much more experienced advocates, often with less novel questions, does not?  Clearly, we saw that Justice White was quite strongly against what he felt was an absolutist argument for abortion rights.  But, Texas had an extreme statute and she was loathe to try to make a minimal argument there regarding some theoretical statute (a good question would be to ask her about the Georgia law).  And, in passing, the state in the first argument dismissed the First Amendment strand of the argument, but Griswold itself spoke of the association rights at issue.  The decision in effect not to have a family, or making family decisions, very well raises 1A interests.

The Doe v. Bolton oral arguments are also available and are worthwhile as noted in the past.  They are of a different character -- the rights advocate goes in the weeds more and as a whole think SW did a better job of it.  I was impressed with the state's efforts there, however, and the woman (a repeat Supreme Court advocate and later state judge) deserves more attention than she has received.  Her first argument in particular did get bogged down on technical issues, but again, that was originally assumed to be a major concern.  And, she too focused a bit too much on the "rights" of the unborn though had an easier time of it since she could argue the state was being more reasonable. OTOH, laying on thick the rights argument causes problems there since again the state allowed some abortions.

It is unfortunate that the opinion announcements are not available on the Oyez.com website as compared to later abortion cases.

Romer v. Evans

A dissenting liberal law professor who is concerned about judicial power generally recently noted he is no fan of Romer v. Evans, in part for it not referencing Bowers v. Hardwick as well for it exaggerating the reach of the law in question.  I found this an overcorrection.  And, like with other complaints regarding Justice Kennedy's gay related content in particular, found it generally unfair.  To the degree the opinion might be open to criticism, I don't find it particularly noteworthy in comparison to others.

Judge Kennedy way back in 1980 (pre-Bowers) held for a lower court that there was reasonable arguments that consistent application of equal protection and due process concerns (which again, as he did later on as a justice, he saw as related) would in some sense apply to homosexuals:

Such cases might require resolution of the question whether there is a right to engage in this conduct in at least some circumstances. The instant cases, however, are not ones in which the state seeks to use its criminal processes to coerce persons to comply with a moral precept even if they are consenting adults acting in private without injury to each other. Instead, these appeals require an assessment of a military regulation which prohibits personnel from engaging in homosexual conduct while they are in the service.

And, it was left to legislation to end DADT, even after Lawrence v. Texas protected the conduct for civilians. Kennedy came to the Supreme Court after that Bowers.  What was that about?

The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.

And, per the last footnote, only on substantive due process grounds. There are a range of other things that homosexuals (and bisexuals) might be involved with here and in no way are they not protected across the board.  The Supreme Court back in the 1950s protected a homosexual publication. Homosexuals in the next few decades were particularly concerned with being able to freely associate in public places like bars or to have associations at schools.  Even "sodomy" itself suggests a certain type of action and its historical prohibition so reflected this.  So, e.g., homosexuals holding hands or kissing etc. would not be covered by that.

Thus, the lower court in Romer v. Evans dealt with the opinion with basically the back of its hand:

The fact that there is no constitutionally recognized right to engage in homosexual sodomy, see Bowers v. Hardwick,  is irrelevant. Amendment 2 by no stretch of the imagination seeks to criminalize homosexual sodomy. While it is true that such a law could be passed and found constitutional under the United States' constitution, it does not follow from that fact that denying the right of an identifiable group (who may or may not engage in homosexual sodomy) to participate equally in the political process is also constitutionally permissible. The government's ability to criminalize certain conduct does not justify a corresponding abatement of an independent fundamental right.

So, yes, Justice Kennedy should have addressed the dissent's focus on that opinion, but it would not have been very hard to do so.  The lower court relied on the argument that a particular class was being blocked from equally being able to participate in the political process. Contra to the dissent, the majority opinion did not "reject" this approach as much as deciding the matter on other grounds.  It is true that the political process precedents the lower court relied upon never really had much staying power at the Supreme Court beyond racial issues (and even there, only so much) though the logic is sound and officially still good law.*  

No Protected Status Based on Homosexual, Lesbian or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.

The immediate impetus of the state ballot measure was that localities were starting to protect GLB (T not quite a thing, I guess) groups.  As the majority notes:  "Enumeration is the essential device used to make the duty not to discriminate concrete and to provide guidance for those who must comply."  And, Colorado and other states and localities do not merely have general rules but specific policies for various groups (age, sex, veterans or whatever).  The provision is only "special" not in blocking "special protections" but providing a special burden on this group.  And, not in a limited way (e.g., same sex marriage, which as collection of things is arguably somewhere in the middle), but broadly.**

The dissent accused the majority of taking a position in the culture wars, to help homosexuals' quest for social endorsement, but this is more like preventing the passage of a specific policy (and in the oral argument, the state attorney -- now a federal judge -- aggravated Justice Breyer in avoiding clearly specifying just what was blocked) to things like stopping violent attacks on gay people.  The appeal to a polygamy ban (which even the dissent granted didn't cover certain things that it once might have like mere advocacy) is not quite on point when the issue is orientation and status.  What is left appears to be reliance on it merely being a facial challenge, so parts of the law might be okay.  On that, again, the majority's discussion is far from not reasonable.  And, the breadth of the law merits doubts.

[As with the reference to Bowers, the opinion might be criticized on narrow grounds as to reach, including sending it back to gain more clarity.  The "political process doctrine" -- to cite Justice Sotomayor (see footnote) -- very well might also have been a sound approach in deciding this case too.  There was some overlap there and striking down DOMA.] 

The Supreme Court sets a basic equal protection principle:

By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.

So, e.g., an old law excepted nepotism rules for a limited class of people for a reason that might seem dubious but it was narrow in nature. Or, only certain people were allowed to sell let's say eyeglasses. The law again might be seen as irrational but if it didn't target a fundamental right (which the lower court relied on -- the right to take part in the political process on an equal basis) or suspect class (homosexuals in the mid-1990s surely were not that though reasonably could have been) there is a whole lot of discretion given.  But, there still has to be some minimum floor.  So, e.g., we saw in one contraceptives case that mere moral beliefs that birth control are wrong is not a legitimate purpose.  Also, it was irrational as applied to the unmarried, even though that isn't a group warranting heightened review.

The opinion spells out the reach and as the lower court did cites the shallow state interests cited. The limited social disfavor argument that the dissent deems legitimate is unpleasant, yes, but it also is done in an excessive way. It does not merely block specific conduct or state authorized marriages of the form of polygamy or same sex couples.  DOMA being passed about this time too.  (Again, bad too, but not as much.) And, concerns like privacy (such as renting a homosexual for an extra room as compared to in an apartment building) or religious liberty (even to the degree allowed) could be more targeted.

So, yes, this violates classic class discrimination prohibitions and its novel use (as seen in U.S. v. Windsor, the DOMA case) is itself a red flag. Novel legislation very well can be valid, but suspicious legislation is better off being able to be defended by precedent that shows it is benign.  The basic core of the opinion is sound though yes it was basically the unofficial start of the attack on Bowers itself, which rests on shoddy grounds.  There is still a middle path, shown by the fact many states over the years criminalized same sex sodomy without blocking the passage of a range of policies dealing with people who might do that by normal political processes.

That level of special burden was seen as a bridge too far.

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* The lower court cited a principle in Gordon v Lance that held: "We conclude that so long as such provisions do not discriminate against or authorize discrimination against any identifiable class they do not violate the Equal Protection Clause."  So, something targeting racial groups or here sexual groups would be a problem.  Again, the reach is unclear but the implication does seem to be a personal characteristic.

The issue in that case, however, was a bond measure.  The Supreme Court had a bit on how important they might be but the true charm is reading some of the rhetoric of the majority and dissenting opinions below. "We consider this contention frivolous and wholly beside the point" is one of the softer bits.  The wariness of the current Court regarding the whole idea might be suggested in an affirmative action case though see Sotomayor's (to me) convincing dissent.

** As the ruling noted

In any event, even if, as we doubt, homosexuals could find some safe harbor in laws of general application, we cannot accept the view that Amendment 2's prohibition on specific legal protections does no more than deprive homosexuals of special rights. To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the State Constitution or perhaps, on the State's view, by trying to pass helpful laws of general applicability. This is so no matter how local or discrete the harm, no matter how public and widespread the injury. We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.

No, not seeing that much wrong there.

SCOTUS Plays Telephone

No conference/order day scheduled for last Friday/today given the holiday, but have some SCOTUS news all the same.  The specific details have not been set yet, but the Supreme Court, for the first time, will have arguments by telephone in May with live audio "for the news media" but reportedly this will be provided to the general public as well.  This leaves open live tweeting from the very talented legal twitter community, some with .gifs.

Justice Breyer did both a zoom with students and a census PSA, but unlike your average law professor, they aren't going with video.  Anyway, this will put pressure to make something like this permanently in place.  Just to recall, the justices released some opinions remotely.  When that happens, Oyez.com eventually tends to have opinion announcements.  In this case, they would not be available though I say the justices should have taped them anyhow.  Hey, maybe one or more justices did so!

I should, and do add, this.  Some were pissed at this move in light of what happened in the 5-4 Wisconsin Primary case  [Biden won 2-1, the liberal judge won (55/45) and the victim rights measure won big]. The majority's answer would be that the Supreme Court has authority to do this while there they were restrained by state law.  True on some level.  But, doing this, including the flexibility given the Court's general conservative nature on change and same day audio etc., is still telling.  The opinion spoke of "ordinary" rules.  We live in extraordinary times.  So, people do have a reason to be upset.  All of this is connected on some level. 

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I re-read John Johnson's (really) as a whole very good book on Griswold v. Connecticut though caught various factual errors here and there. (For instance, it didn't clearly explain how broadly the New York restatement of contraceptives rules were struck down in the Carey case.)  It provides a good general history, many background facts, legal summaries and discussion of the aftermath up until around 2004.  A good general example of the cottage history of books about a certain case that provides an opportunity to provide a thumbnail history of wider issues.

Griswold itself provides a lot of fodder though even with all those opinions, there is something lacking there.  The main opinion is rather brief though not quite as brief as some make it out to be; the ending is particularly quick after the general idea of the a penumbral right of privacy is discussed.  As noted by the dissent, the opinion also doesn't fully address past contraceptives cases handled by the Court. This doesn't mean the end result would change (there is a way to distinguish).  The majority also could have fleshed out the privacy argument more such how the Fifth Amendment factors in.  Or, emphasis as to how this is just not a place matter (focus on marital bedrooms) but a decision focused one, something later opinions made more clear.  Cf. Douglas' own past opinions.

Justice Douglas in Poe v. Ullman has a whole section on doctor/patient speech and a free speech argument was posed. The majority opinion with some detail (given the brevity of the opinion as a whole) explains how the First Amendment has a broad reach further than its literal terms.  Justice Black in dissent is basically the only one to address the issue (distribution isn't speech; so this is basically speech mixed with action that is not protected)  though even there the overbreadth claim is not really addressed.  The aiding and abetting law can be addressed by focusing on use but it is curious, especially since the matter was brought up and the general strong protection of free speech issues, the 1A was not covered here.

The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives, rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship.

The nature and purpose of the law at issue is only vaguely cited here, again as compared to other opinions in this area.  What "goals"? Two concurrences focus on the prevention of adultery, but that does not seem to be the only goal.  Population control was raised as was general concerns about morality.  Thus, in later cases the purpose of controlling personal decision-making here for its own sake was deemed inappropriate.  The law also to some extent regulates "sale" or distribution.  In fact, that is in practice the only likely way it would be enforced.

Justice Black's dissent is of a caliber of Justice Scalia's dissent in the Atkins v. Virginia case covered the other day.  A basic complaint is opposition to long held precedents that was deemed to be particularly dubiously applied here.  But, the basic precedents existed.  Black and Stewart did push back to some degree about the required implications of said precedents.  But, it is clear, e.g., there were various unenumerated rights protected such as travel. Applying an unenumerated right to equality to the federal government when the 14A specifically also includes an equal protection provision  might be seen as an easy call, but that is somewhat also a question of line-drawing. 

Justice Stewart was more open to flexibility here so his literalness in his dissent (especially given he vague statement in Poe and his comments during oral argument) is more curious than Black's standard concerns.  Something came to mind there too -- Stewart said that the Ninth and Tenth Amendments provide the state discretion here.  He in another case noted privacy was an important right and is a basis for state libel law.  This sort of ignores the argument that unenumerated rights are incorporated by the Fourteenth Amendment too, but anyway, the dissenters said it was up to the legislature to protect privacy as they deem fit beyond the zones of privacy found in the amendments explicitly. 

Now, it might be the case (the book notes the opposition by the Church was much more limited by this time though suggested the "one person, one vote" cases might help bring in more Catholic legislators supporting the law) that the state was ready to overturn the law.  We already saw that Massachusetts only did so up to a point even after the opinion.   Still, and Stewart got the lawyer for the state to say a state could not totally abolish it, the state already protected one such unlisted right here -- marriage.  And, this was a clear concern, probably as a "privilege" or "immunity" of citizenship, of the original framers as well.

Thus, the core of this very case -- marriage is a right of citizenship, a right of the people, at the very least, the state of Connecticut so recognized. Once they did so, could they tell married couples not to have sex or whatever? Again, Justice Stewart himself flagged this issue (separation like some sci fi novel except for designated time periods or the like).  This is not a right the justices had to reach out to find via vaguely worded tests.  Like travel or the right to a lawful occupation, it is a rather uncontroversial right.  The problem would be a matter of reach and regulation.  But, there some limit there.  Later cases involving unmarried individuals would be harder.

There is a lot of unexamined material in these cases.