Roberts: RINO Punter No More (Religious Funding)

Not only is the Court wrong to decide this case at all, it decides it wrongly. Because this decision further slights both our precedents and our history and weakens this country’s longstanding commitment to a separation of church and state beneficial to both, I respectfully dissent.

People who appeal to originalism often seem to get history wrong. At the very least, they look at history and see certain strands of it and look past others.  The dissent in the CFPB opinion has the better argument as to history as much as constitutional analysis as a whole.  The same is true as to the dissents (particularly Breyer and Sotomayor, who is quoted in a "cleaned up" fashion here) in the religious funding case.  I'm a separatist at heart but at the very least there is "play in the joints" here regarding a matter that has arguments on both sides. See, e.g., my comment here.  

At the very least, and this is all they needed, they argument is strong enough to give the state the benefit of the doubt.  See, e.g., here regarding a brief in support of certain religious groups.  Both sides here have an argument.  On some level, equally funding religious schools in a voucher program is fair.  But, religious liberty and policy is complicated as seen by the splits since even before the First Amendment was ratified.  Justice Sotomayor had a good argument even when we were dealing with schoolyard pavement in Trinity Lutheran.  It is better now.

As noted by RBG, this is particularly a questionable maximalist decision, but Roberts is not a consistent minimalist (even his minimalism -- as seen in his abortion opinion -- at times is selective).  To enforce a state limit, one that many states have in some form, the aid program was removed across the board.  But, it is said that the approach here violates the Free Exercise Clause by selectively not funding religious schools.  Again, you can arguably read the provision that way, but it is not how it was understood from the beginning.  States not funding religious schools do not "prohibit free exercise."  Since the days of Jefferson and Madison, and it really is insulting to try to say otherwise but you have to try apparently since Madison is after all the "Father of the Bill of Rights," in fact, public funding of religious education was seen as the opposite.  

The majority, though its logic arguably goes further, says the state can simply not fund non-public schools at all.  This might on some level be good policy as a way to promote public schools.  All the same, it is not necessary to do so.  The concern here involves funding religious schools.  Separation of church and state arises from the special complications in that specific area.  Again, and Justice Breyer's concurrence underlines the point, there very well might not be "one answer" there as a whole.  So, there is diversity of "no aid" provisions in state constitutions here.  And, this isn't about school playgrounds.  This is about direct funding of religious education.  Many religious see it as problematic as a matter of religious liberty to force people to fund the promotion of other faiths.  From the days of Madison. 

The complaints about anti-Catholic bias, "Blaine Amendments," is as spelled out the brief is confused.  A basic problem is that this is a modern day provision that as Justice Sotomayor notes (though the same can be said about the originals to some degree) that received support from religious groups including Catholics.  It was passed after JFK voiced strong support of separation of church and state in that area.  Plus, the general principle goes back to the beginning, including promoted by religious groups like the Baptists.  Finally, concern about Catholicism in the 19th Century was not totally an act of bigotry.  It very well involved a foreign led religion that promoted anti-American principles in certain particulars.  

To add insult, consistency is not well applied here.  If anti-Catholic bigotry is your concern, you might recall that mixture of church and state antagonized it.  Thus, part of the history was a de facto Protestantism in public schools that antagonized the early debates here.  Modern church state law addressed that, banning state led prayer and Bible reading.  Gorsuch and Thomas in particular, however, want to water down the Establishment Clause considerably.  As seen in the peace cross case, the other major approach would be an equality principle.  But, religious liberty is not merely an equal protection principle.  And, one reason for separation here is that given the reality of numbers and so forth, mixing church and state can hinder that principle in practice. 

It remains to be seen how far this will be taken.  Will a religious equality principle result in allowing religious groups to discriminate, even in areas seen as part of the public sector?  "Free exercise" can involve private discrimination.  This underlines that the whole affair is complicated and cannot be settled with simplicity without some nuance.  In practice, it is likely to be selective.  Thus, e.g., religious/moral beliefs involving abortion block funding, even though sometimes religious liberty would allow personal usage to carry out personal beliefs.  New York has yet to clarify that "internet ministers" can officiate weddings though the law specifically allows certain types of ethical groups to do so.  The fix supported by my own state senator doesn't fix things across the board -- it allows one-offs.

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The other case decided -- eight to go as we go into July for the first time in some time without all the cases handed down -- is much less controversial though of some economic significance. A generic sounding term like "Booking.com" still might obtain trademark protection unless it is seen as generic to consumers.  The company was given a chance to make their claim in an opinion by RBG with only Breyer dissenting (Sotomayor noted separately the limited nature of the rule).   A conference will take place tomorrow, with various things to cover, with orders on Thursday. 

(The case was the first telephonic argument and also was argued by two women. The government advocate lost her case, but did have a baby boy later in the month)

Virtual Supremes: Roberts is a RINO (Not Really) Again

As of now, there are two decision days, a conference and a second order day (orders were handed down today) scheduled this week. Three opinions were handed down today (one from May) and ten remain. We start as usual on order/opinion days with 9:30AM orders.  This one looks bland, with the usual odds and ends, but there is an important development for those on the look out.  Among the orders on a short list is this:

BOURGEOIS, ALFRED, ET AL. v. BARR, ATT'Y GEN., et. al. (19A1050) The application for a stay of the mandate pending the disposition of the petition for a writ of certiorari presented to the Chief Justice and referred to the Court is denied. The petition for a writ of certiorari is denied. Justice Ginsburg and Justice Sotomayor would grant the application and the petition for a writ of certiorari.

What this?  Oh.  It's the federal death penalty ruling (2-1) that held that the Barr Justice Department are not breaking a statutory rule that any federal executions have to follow the rules of the state involved (or one designated by the court if the state has no death penalty) per the proposed protocol.  The last federal execution was in 2003 and the plan is start again in July.  With so much going on, this can be lost in the fold [it is not alone -- among things going on is the Mississippi legislature passing a law removing the Confederate flag on their state flag], but it is pretty serious.  Before we restart federal executions, I'm thinking a full review of a divided ruling is warranted. Will executions really start anew without comment? 

10 o'clock.  The opinions are handed down in reverse order of seniority. The first up is one by Kavanaugh for the conservatives, Breyer for the liberals (Kagan did not take part).  This involves an international funding law to fight HIV/AIDS with a proviso -- the organizations need to have a  "policy  explicitly  opposing  prostitution   and   sex   trafficking.”   A previous opinion by a large margin held this a breach of the First Amendment as applied to domestic organizations.  But, this time, the majority held that foreign organizations were not covered. The dissent argued that domestic organizations were at stake here since they had a close connection to those covered here. 

The result here will very well burden some organizations that serve at need groups and are loathe to basically say they "oppose" them while trying to do so.  And, just what that would entail can further burden such groups if certain roadblocks are put up -- devil in details.  Finally, as Justice Breyer notes (and he is no free speech absolutist) "compelling people to profess a belief" is a basic free speech "no no."  And, he is correct that we should be wary about some absolute rule denying non-citizens overseas any First Amendment protections.  The First Amendment is a limit on power as much as a granting of rights.  Only the last part even references a "right of the people." 

Breyer sorta (he would have read the opinion announcement if -- as there should have been -- was one available today) spoke for the Court in the abortion decision.  This is not as much as a surprise as it might seem -- CJ Roberts already held up the works, unlike the other four sending a message that he thinks the specific law here is basically the same as the abortion law struck down in 2016.  Yes, he was in dissent there, but he gave it stare decisis effect.  He did so today, if concurring in judgment.  This is a suggestion that a "chill wind blows" but at least partial credit is deserved. 

This will for some seem to be a case of Roberts being a "Republican In Name Only," but he didn't do the anti-abortion cause (or anti-abortion rights cause) that much harm in some sense.  Breyer simply, in crisp fashion based on the facts (RBG let him be -- no concurrence), applied his own precedent. One some argued if anything strengthened Casey some.  Roberts, let us note, did simply go along regarding the clinics having standing.  This is a major dispute, including for one or more of the dissenters (Alito led the way but each other conservative had their own), and could threaten abortion rights since clinics are best able to defend abortion rights as compared to time sensitive patients.  Roberts, however, would give Whole Woman’s Health narrower reach.  And, "this is too obviously the same case" is a tad thin.  There will be more abortion battles.  The anti-choice side still has an ally here. 

The theme this term repeatedly has been (at least for Roberts) "I'm not going to go too far," which comes off as strategic waiting and see.  The main thing that comes to mind here is that the battle over the courts has had its temperature lowered somewhat though it is far from rightly over given we are hanging on a somewhat thin reed of one conservative vote.  The "you need better bs" cases (census and DACA) and this stare decisis (you need better "new" cases) ultimately are fighting the long battle institutional concern matters.  Roberts has a Court for not so immediate future with the two tainted seats. More likely than not, in the short term, the replacements will be liberal holding the lines. 

You know the opinions are done in these virtual times in particular when a "R" number (Reporter) is placed on the opinions.  And, this occurred with the third one, the CFRB dispute that actually had Paul Clement appointed (via Kagan, in charge of the circuit) to defend the good guys.  Kagan spoke for the dissenters with her usual verve, starting with a footnote citing her own writing.  The result was a continuation of the conservative action to chip at the administrative state though in the not to short term it might actually give a President Biden more discretion. 

(Prof. Litman in that article cites the abortion opinion as a "Pyrrhic" victory and it is true that Roberts concurrence waters down to some unclear degree abortion rights and invites further attacks. But, it still is a victory for abortion rights and the alternative is really not advisable either.  One law professor with special expertise on the subject suggested that the opinion basically rolled things back to Casey.  If so, how bad is that really?  That earlier opinion is really one that provides practical openings for ebbing and flowing, depending on the makeup of the courts.) 

Small breather. More tomorrow.  Talking separation of powers and checks and balances, this move in the House to add more bite to contempt seems sensible.  The Trump Administration has abused the process and something needs to be done to provide some rejoinder, one with a fast track process.

ETA: Analysis of the decisions have been coming in from various places, including SCOTUSBlog.  Note how there does remain a way to remove even under the law in place: “inefficiency, neglect of duty, or malfeasance in office.”  This provides a mean for the executive to remove. As I noted here, there are other checks, including involving the other two branches as well as the general public. OTOH, the general concern that executive actions should have political executive checks is a general constitutional principle that can guide policy as noted in that last essay. 

Teddy Duncan Has Another Reason To Be Embarassed About Her Mom

No thank you. It’s not law. Just an overreaching suggestion. But you do you.

— Leigh-Allyn Baker (@L_A_Baker) June 27, 2020

The clusterfuck weekend story is that the Russians offered bounties to the Taliban for American soliders and Trump was told/didn't do anything. This is just a little kick the baby (maybe the stupid tack-on kid that I still am annoyed they added) moment. Oh, she's also anti-vaxxer. Of course, she is. She felt a need to respond repeatedly. That's always a good idea. Well, "Teddy" still is okay -- she defended Dr. Christine Ford, who is a close relative.

This is a reminder that entertainers will include some people with unsavory thoughts. The original Buffy, e.g., has tweeted some pro-Trump stuff. Having "Amy" being an asshole about masks is a tad depressing. BTW, as a prelude to their delayed release of their first album in a long time, the Dixie Chicks not only dropped a music video in honor of protests that probably deserves consideration of some award but changed their name to "the Chicks." "Dixie" started in antebellum times but it does have a certain taint.

Seems a bit much but you know given their politics and all, understand them being careful. Plus, there is now a new thing where white people are stopping voicing non-white characters. A hazy line there might be interracial ones. I assume audiobooks will not all start to have group narration if the characters are a variety of colors?  No, the overall idea makes sense.  Why should some white bread actress voice a non-white animated character when there are a diverse number of non-white voice actresses to pick from?  Sometimes, you have a show like The Simpsons with a limited number of voice talent with a lot of characters, but a show of that nature also is such an institution at this point that you very well can have POC voice those characters.  Plus, it seems to have seeped into the writing. 

There is some ridicule of cosmetic changes, but these things do matter, which is suggested by how much attention it is given to those whose efforts are aimed at changing bigger wrongs.  Some are upset at the lengths taken to replace statues or something, but it is time we talked about these things, and any major fix is going to include line drawing debates. This is fine. We can handle it. Some years back, Melissa Harris-Perry (whose weekend show was worthwhile but left after disputes with management) honored an animated black girl doctor.  She is voiced by a black woman voice actress with a wide resume. It matters.  Disney Channel actresses (if not a current one) being anti-mask does as well.  Yes, they are but celebrities whose wisdom is mixed.  But, it is not novel or surprising they have cachet. 

Plus, I know it's silly on some level, I don't want the people I watch being assholes in real life. Guess it's my bad for checking Twitter on the weekend.

All Rise

As noted, I started to watch Perry Mason, the new HBO series. But, it is rare for me to watch new programs -- has been for some years now. One I tried at the beginning was the new courtroom drama, All Rise, with a new young black woman judge with a diverse cast. One nice familiar face is the prostitute from China Beach (tempus fugit) who is now a chief judge.

I thought it okay but not "must see" with a bit too much of a heavy hand. So, didn't keep up. I later on saw the COVID-19 episode and thought it well done. Caught some more episodes (only some available for free) on demand. Same. It is pleasant enough time wasting with something to say. The ones I saw all had basically a happy ending which is a tad unrealistic for what is supposed to be a realistic urban court drama. It was renewed.

Virtual SCOTUS: Sotomayor Birthday Edition

SCOTUS had four opinions to release as well as the ten from May. Following the current "one or two a day" policy, one was handed down today. Happy Birthday Justice Sotomayor -- she wrote a dissent (joined by Kagan) honoring protecting the rights of immigrants. Alito (as expected of the three who did not write a February argument opinion; now we have Roberts and Breyer with a chance Breyer will somehow write for the case on abortion) said they didn't have judicial review rights asked for here. Breyer/RBG tried to limit it to this case.

It was announced that there will be opinions on Monday and Tuesday, which at this rate might deal with pre-May though one or more May opinions probably can be ready. Meanwhile, Ohio got a stay that blocks collection of signatures from being done in an easier fashion given the Big V for the time being. The Supreme Court denied w/o comment a request to lift it. Consistency. They had a conference today as well.

ETA: Did not intervene in the Texas mail-in ballot/26A dispute either though Sotomayor said she hoped the lower court would deal with it before the November elections. There is a local election coming up though. As she notes, it is a novel issue, so it is not really horrible for SCOTUS not to intervene now though some on Twitter, e.g., found it so very horrible. Judgment calls there can be hard. Also, added a conference and order day next week which is suggestive of the end of the term, but that would be rather a rush job.

Late June Voting (Early Returns Edition)

And Also: A new "not your grandparents' Perry Mason" version -- e.g., Paul Drake here is a black cop, started last weekend on HBO. Pretty good.  Good cast and 1930s atmosphere.

There was various races today, including a special House primary won by someone not even 25 yet (AOC: senior stateswoman!), the most focus was placed on the two presidential primary states which also had many other races whose winner was more up in the air -- Kentucky and New York. The use of absentee balloting leaves the full results a matter that is pending, but some things can be addressed here.

There was some concerns, especially given a much reduced number of poll places,  that Kentucky (run by a Democratic governor, let us recall)  would be a mess. One account -- by someone less likely to be a kneejerk partisan on that blog -- put forth a mostly rosy accounting.  As I said there, concerns were natural if very well perhaps overheated.  Also, it will take time to fully get a sense of what happened, but if it went well, great -- we should try to focus on the good, to help keep sane and help how to address the bad.  Plus, yes, sometimes "the left" needs to get all reality community focused. And, sometimes, there are kneejerk reactions, especially from politicians [even those we mostly like] who are not closely looking at the details.

Finally, this op-ed suggests we should care about in person voting, absentee voting having some issues (not fraud related though Rick Hasen, while noting the concerns are overblwon, notes that to the limited degree that is an issue, that is a concern. Some people now all gung ho about absentee voting were willing to grant that when calling Republicans hypocrites for being less concerned about fraud there) and one size fits all is unsound.  This includes concern about problems -- I myself fear that I did not sign and date my ballot, thus making it void. There isn't a way to have the errors caught though I guess maybe you can still vote in person if you think the ballot won't be accepted anyways.

One big race is a AOC type affair where some old white vet (thirty years) is being challenged by a younger, more progressive (at least more passionately so ) challenger, again here a POC.   Engel, who seems tired and out of touch, appears to have lost the race. Well, he was there for thirty years (first defeating my senator's grandfather for the seat; she around two at the time ... she eventually changed her mind, and endorsed his opponent).  There was even a few races where a Republican was favored though not a one Republican ran in my own district.  Putting aside the district leaders (male and female), a choice between two people I knew nothing about, the expected people won -- AOC and Biaggi.  AOC actually had three competitors, two of whom nearly no one heard of though Sam Sloan was the last non-lawyer who argued in front of the Supreme Court (winning 9-0). 

After early April, Biden was basically the presumptive Democratic presidential candidate though some thought that basically after South Carolina.  Still, he did not technically get the number of delegates until earlier this month.  There is another marker that is likely to be passed by the time a full account allows a full breakdown of New York delegates -- when Biden would win even if the superdelegates voted.  This would allow them to vote under the rules in the first round of voting. Biden is around twenty delegates now from that marker.

New York was scheduled to vote in April but the Big V delayed things until the state/local races date in June.  New York allowed absentee voting basically out of fear of obtaining the virus; de facto at will though you had to request a ballot.  There was some difficulties at the polls, including because the often senior poll staff at times did not want to go to work.  I worked at the polls again as I did last November, this time part of a smaller staff (there was not even people to "man" each of the voter check-in tables while in the past, sometimes there were two at a table -- one was a sort of "roving" spot).  The coordinator was late, apparently because trains were out 1-5AM for cleaning, so we were a bit delayed at the 6AM start time.  But, once things got moving, it mostly went smooth at our lazy spot.

(One thing that did not happen during the general was that many people came who were not registered Democrats, even some who were Republicans, and thus could not vote since there were only Democratic races.  Many had no party -- or so was the case in record.  It is far from clear if such people can ask for an affidavit vote.  Also, there is a lot of paperwork you have to do plus a lot of signs to hang up.  And, a lot of things to deal with -- down to multiple plastic ties -- when putting together machines or closing up shop.  Rather tedious.)

Again, a few things are not final -- the big thing that probably stands out in that department is who won the Kentucky Democratic Primary.  The presidential numbers are as expected.  Biden won New York with about 2/3 of the vote with Sanders getting about a fifth.  The ballot had a bunch of also rans receiving the usual small fractions. I got to vote for Warren, who at this point has around 4.4% of the vote.  And, yes, thousands of people voted for the likes of Klobuchar.  No Republican presidential primary.  I still think it was appropriate to allow voters to vote in the presidential primary though the two ballots at first led to some confusion at my polling place  (how this is so is unclear -- how can they not make this clear to the person running the show?).

The current returns for Kentucky are but a fraction of the whole but I'll toss out the numbers.  Sometimes, you see "uncommitted" this year as an option to provide Trump a small opposition.  Thus, six percent did that here. But, it is more unusual to see around 17% in the Democratic primary -- at this point, Sanders is not at the 15% floor.  Biden is at around 60% and the others have the usual fractions.  Again, this is early and the official numbers won't come until at the end of the month.  Our next presidential primaries will come next month. 

Meanwhile, New York City has moved into Phase 2 while various upticks make me worried about baseball coming back next month. Which apparently it really will.  Boo to universal DH!

Virtual SCOTUS Order Day (plus SEC)

The term of the day is "disgorgement" given the one opinion (via Sotomayor with only Thomas dissenting) today. It isn't what people are waiting for really, but we are talking a lot of money. There are now fourteen, four from before May. Figure we will have at least two more (one this week and Monday) opinion days this month to deal with those four.

The orders dealt with some cases getting some attention, including a "true threat" issue that Thomas would have taken. Those who want to see the unedited epithets can check out the state opinion. Also, now there is one qualified immunity case (the Kim Davis, SSM matter) left. But, it was basically a no drama order list with the usual "huhs" -- why did such and such recuse? What is the deal with those "filing as a vet" refusals? etc.

Anyways, there should be live audio of opinion announcements. As to spacing things out, especially since there are no actual announcements, it's fine to some degree. Anthony Lewis asked for more opinion days to help the press and public (see a biography of the Warren Court). This one a day business is a bit silly.

"A Barr-Trump Commission of Inquiry?"

There is a proposal here for some sort of commission, preferably with some bipartisan membership, to investigate and help figure out the response. One that basically is not about criminal penalties though a limited form of financial wrongdoing might lead to consequences. I and others respond. The idea can be expanded to other agencies.

We should be thinking ahead and we saw in the Obama Administration how delaying could be a problem and even ultimately lead to failure. The details are open to dispute. The piece covers limited ground but do think actual civil and criminal penalties should at least be on the table. The Elizabeth Warren proposal of a special commission set up to investigate in the Justice Department (as I recall) made sense to me. No "one" solution is required here.

There are a variety of factors here, but bottom line, there is principle involved. This isn't just partisan. A special rot is present in this Administration and just winning an election and "moving on" doesn't seem like enough. And, yes, some means to bring in others makes sense. We can scorn "Never Trump" types, but there is some sentiment that goes beyond registered Democrats. Government integrity is now largely a Dem thing though.

Boys of Summer

The WNBA announced they will have a short schedule, but on this first day of summer (17:43), but we are still have talks about baseball. The latest, I haven't closely been tied to the details, suggests there is more of a chance. OTOH, Howie Rose -- usually an optimistic sort -- of Mets Radio recently tweeted (he does that now; also has a beard) was more pessimistic. With continual news of outbreaks in various areas, that seems realistic. Shall see.

Baseball will also look somewhat different.  The big thing (talk of miked players, but that was started already -- it's a fine enough gimmick) during the "regular" season would be the universal DH.  Recall too that we have some new rules, including requiring pitchers to face three batters, which changes reliever dynamics.  But, a universal DH -- a nod toward the AL since we will have a lot more inter-league games to limit travel -- is major. The young Mets reporter (first year? hold my beer!)  is game:

So say goodbye to double-switching, sometimes-savvy bunts and pinch-hitting for pitchers. It’s overdue.

Why?  There is no compelling need for more of the same.  We already have enough hitting.  Eight hitters ("hitters") in fact.  The lack of a DH provides variety, a mild deterrence to pitchers since they too have to go in the batter's box and  net probably shortens the game. An AL pitcher might stay in a bit longer but we already have quicker hooks and deeper benches in both leagues. And, in a shortened season why not provide a means for more players and stuff to be done?  Any benefit to the NL is minimal, especially since pitchers already move around, have minimal hitting training and the average NL pitcher isn't much in the box anyway.

(ETA: I found this bit noting that they don't want to overtax pitchers by having them hit.  It's labelled as a part of the health/safety protocols. Well, if so, I stand somewhat corrected on the logic this season.  The summary I saw did not bring that up though don't know how taxing it really is.

Note that summary also shows that in extra innings a runner will start the inning on second base as well. Again, that is partially a safety mechanism, partially to not drag things on too long given the shorter time span.  As to making that a permanent rule, if they did it after a few extras, probably would not hate it too much. Rather not do it right away.  Also, for some reason, they are not going to put the position player pitcher barrier in yet.

Another thing in that FAQ are social distancing rules including throwing a ball out of play after it is touched by multiple players. Double play balls? No spitting of sunflower seeds. No high-fiving or other such popular moves. A lot of social distancing of players usually in the dugout. Also, players get the portion of their pay based on the days played.  Finally, support staff will be tested though not sure if that means everyone involved.  One might assume so, but best not to do that.)

The plan makes a ton of sense for a 60 or 70-game season, but not so much sense when a full 162-game schedule returns. For now, pitchers won’t be taxed after a short season and can handle that extra round of playoffs. It also ensures teams that get off to a slow start can make up for it through the addition of six extra playoff teams. But there are few advantages besides revenue once a full schedule returns.

Yes.  We don't need longer playoffs, watering things down. If anything, we need less games [and probably a couple less teams at least] during the season with so many other options out there. There are so many sports channels with a chance to see a variety of games, including minor leagues.  Some complain about the one-off wild card game, but the teams are there because of extended playoffs as is. They are not division winners. The one-off adds excitement. Make money some other way.

This season? I'm not sure how much "a ton" of sense it necessarily means though it can make sense. A long season in one fashion is a honest broker. It evens things out as repeatedly seen with the Mets.  It would be somewhat interesting to see how they would operate since of late they had a lag in May, while here that would be over half the season. They repeatedly had good starts but in recent memory shined in the second half.  Which is not existing here in any true sense. It would also be interesting to see how the new pitching rules will factor in since there is less mixing and match. OTOH, the Mets of late had multiple closer types that should be okay.

There is a financial reason to play some games and some do want to see some baseball. Others, like myself, with so much going on, accepted the "new normal" without baseball.  Also, you won't have the normal rush of people -- including families and camps -- of summer fans at the ballpark.  The bottom line is that I'm concerned about the Big V.  But, we shall see.

Friday Night Fun at the Justice Department

Bully Barr, how do you obstruct justice? Let us count the ways:

1. LIED about the contents of the Mueller Report, claiming that it found “no evidence” of colllusion or obstruction of justice

2. Attempted the redact material in Mueller Report which reveals that Trump DID collude

— Asha Rangappa (@AshaRangappa_) June 20, 2020

Oh there are a lot more, with a break to drink some more wine. It is probably my fault.  I left Twitter shortly before midnight a few weeks ago, and then the Supreme Court handed down a 5-4 order regarding Big V rules for churches.  I left early (though did check later on) yesterday and we have a whole new Friday news dump affair: Barr announced that the U.S. Attorney for the Southern District (traditionally a sort of independent wing) was resigning and some unqualified (never worked as a criminal prosecutor) would be nominated to fill his spot. Meanwhile, following a norm now, the usual line of secession would be skipped over and an outsider would fill the spot temporarily.  On Twitter, Chris Geidner noted this was due to happen around July 4th.

This is one complicated affair though the basic thing smells, including the timing and numerous possible reasons why Trump would want the other guy gone, replaced by some flunky (tainted connections have been cited too). Another complication is that Geoff Berman (Trump donor that seemed safe) said, "um, I didn't resign." He tossed in that he would continue investigations, a big flag that his "resignation" might be a pressure job in response to them. He was offered various plum other jobs in Justice, but turned them down. His current position is a plum spot to, plus he probably has some ethics regarding overseeing his work and not being pushed out by crooks.

Since this is the Trump Administration and 2020, there is one more major wrinkle.  Berman was appointed by judges. Yes, this is a thing, as we saw back in the independent counsel days.  One major thing this Administration does is slow walk appointments and confirmations.  U.S. attorneys being a special animal here, the law provides a means to have temporary attorneys appointed until one is confirmed in the Senate.  The law says that such a U.S. attorney would serve until their replacement is confirmed. The OLC back in the day determined that the President (if not the AG) could fire them, but this is apparently dubious, say various legal minds.

Apparently, John "I won't testify" Bolton's book coming out (with him suddenly being all "Trump is horrible! Congress should have done more!" ... fucking asshole)  is not enough.  BTW, reports are that he will be on Stephen Colbert. I tweeted repeatedly to him that is wrong. Don't give that asshole a platform. Get Dana Carvey to do his Bolton impression.

ETA:  Ha ha.  First, more on the overall issue and how it influences two major pending Supreme Court cases by Leah Litman here with typical Litman verve.  Second we have this today after I posted:

Barr says Trump has now fired Berman. This, Barr says, is authorized by 241(c). Notably, however, Barr has shifted, and is allowing the Deputy US Attorney to serve as the Acting US Attorney — and not, as per last night’s release, the NJ US Attorney.

Trump later said that he has nothing to do with it -- it's Barr's affair. But, it can't be -- the specifics here at least require Trump to fire the guy. As seen during the impeachment process, Trump seems to have a tendency to lack the guts to directly fire people.  Ball in Berman's court, I guess.

.....

Latest: "By the end of the day, Mr. Berman’s handpicked deputy, not the administration’s favored replacement, was chosen to succeed him for now."  Berman: "that will do pig." Agrees to step aside.  The temporary replacement being in-house is important since even lapdog Lindsey Graham is wary about the guy picked to replace him. To remind:

Trump on Saturday fired the federal prosecutor whose office put his former personal lawyer in prison and is investigating his current one, heightening criticism that the president was carrying out an extraordinary purge to rid his administration of officials whose independence could be a threat to his re-election campaign.

The whole thing still stinks and makes the Trump Administration (including Barr) look like corrupt clowns.  Recall that the replacement is easier to remove than Berman given the special appointment issue is lacking.  So, will we have some more clowning later?

Juneteenth

Gov. Cuomo announced that he was going to declare Juneteenth a state holiday, though this annoyed a legislator who noted she tried that and he didn't even reference her. We even have Sen. Cornyn (R-Partisan) saying we should make it a national holiday. One can suggest therefore that this is just a "token" move, but I'm all for it. Mother's Day is nice but it doesn't mean we get to not be nice to them the rest of the year or something.

I'm wary about some that blithely speak of the day as one honoring when slavery ended. As this op-ed and that first link shows, that isn't really the case -- it is when the Emancipation Proclamation (which covered areas not under Union control when announced) was officially applied in Texas. So, there is clear recognition that we are actually honoring a wider thing. And, the complexities involved here make the holiday a richer thing.

Like monuments, holidays commemorate and have meaning. We have too few holidays addressing POC directly, the only major one (and one rather recent) being Martin Luther King Jr.'s birthday. And, that is sort of a white people's feeling good about themselves day too. The anger at removing Confederate monuments suggests Juneteenth is a bit more complicated there. As we hear talk of removal of Columbus Day statues, one wonders about Native Americans too, now only indirectly popping up in our holidays.

Opinion Day #2: DACA

As with the GLBT decision, there is a lot of talk about the game being played, but bottom line Roberts wrote the opinion saying DACA was ended the wrong way. Sotomayor separately said the equal protection argument should have been retained. As with the census ruling, the four other conservatives dissented, Kavanaugh again more politely. I figured before the opinion that this would turn on November even if it went the other way (things take time to unwind) and guess in another form, the point holds. Punting seems to be a theme this term.

There was also a conference today and there will be another decision day next week. (With one opinion last week, I joked two decision days would mean two opinions this week; well, there were three. Fifteen left, ten from May.) The justices also put the federal death penalty appeal on the fast track, but that too might turn on the election though Barr said he wants to kill someone in the summer.

Justices block Texas execution (Chaplain Debate: Part III)

After Missouri executed someone, it looked like Texas might as well when a challenge on procedural (DNA testing) and religious liberty claim (right have a chaplain in the execution chamber) was rejected. The first given the grounds of his prosecution (did not require directly murdering; assisting would have been enough) was perhaps weak though it very well might have factored into his death sentence. The long time on death row (twenty years) etc. not at issue as such though for me it is relevant.

But, the religious claim is stronger. As noted, the Supreme Court asking the district court weigh the need of the rule suggests some concern it is not neutral. If you recall, it was a result of a battle over an attempt to get a non-Christian chaplain, which led Texas to simply disallow any. Kavanaugh rejected selectively providing chaplains but accepted a neutral blanket rule not doing so. Alito dissented on procedural grounds, but flagged a serious interest was at issue including under a federal law (RLUIPA) protecting religious liberty. Even in the face of general applicable rules that don't target religion as such. The lower court opinion is a bit dismissive of that last concern particularly.

So, it is not really shocking that the Supreme Court blocked the execution last night to settle this issue though it all seems rather gratuitous (but discrimination often is): a neutral rule can be placed and Texas can go forward in executing their arbitrarily selected "lottery" winners. Respect for religious beliefs at death is not a trivial matter.

Susan Jacoby's Freethinkers: A History of American Secularism

ETA: I finished it and overall still appreciate it including its use of "snapshots" to give us a sense of the history of secular heroes. The book was written 15 years ago, so can use an update, but it sorta needed another chapter even then.  The history section really ended in the mid-1970s with the final chapter a sort of final thoughts from the present. But, a lot happened in those twenty five or so years! 

I started to re-read this book, written in the middle of the Bush43 Administration, which starts perhaps a bit late in the revolutionary era. Jacoby's more recent books (she actually wrote one on baseball too) have received mixed reviews and her writing style from what I can tell there can be tedious.  But, this one is fairly easy reading for the run of the mill reader though as the review notes it is clearly somewhat speaking to the choir. Not in an over the top way, I think, though I'm not exactly unbiased.  Overall, like Michelle Goldberg's Kingdom Coming, for which modern day analogues can be found, this book continues to be quite timely.

(Looking it up, she started out as a correspondent in the Soviet Union during the 1970s, and published more than one book about her experiences there. She also wrote a book about revenge that I recall finding interesting back in the day.) 

The terminology is important here. "Secular" is a worldly view that also means government that is separated from religious pursuits. Also, "freethinkers" promote a certain freedom of thought without necessarily being atheists or the like.  A prime example there is Tom Paine, who said he believed there is a God but that said God is seen in nature. Most of the stuff that came with that (the details of creeds that provided a lot of the battles) was another matter.  "Religion" in that day and age tended to include an afterlife and some final judgment -- it was seen as a major value of religion, including as social concern (see, e.g., Benjamin Franklin).  Sounds like Paine hoped for that, but being loyal to his rational approach, could not be completely sure that was the case.

I just sent away (see the first link) for a copy of the Freedom From Religion Foundation paper and there is some interesting stuff there, including a speech by someone who left the Jehovah Witnesses.  The "about" page:

The history of Western civilization shows us that most social and moral progress has been brought about by persons free from religion. In modern times the first to speak out for prison reform, for humane treatment of the mentally ill, for abolition of capital punishment, for women's right to vote, for death with dignity for the terminally ill, and for the right to choose contraception, sterilization and abortion have been freethinkers, just as they were the first to call for an end to slavery. The Foundation works as an umbrella for those who are free from religion and are committed to the cherished principle of separation of state and church.

Note the usage of "freethinkers."  I personally would emphasize that term. The term "religion" to me is rather open-ended and the Unitarian-Universalist Church and others  are quite freethinking.  This is suggested in the book as well -- there are various ministers and others who believe in God and have some sort of "religion" but still are liberal minded freethinkers.  Also, there is some particular focus in their litigation to worry about public monuments and such.  I find them troubling too in various cases, but that often is not the major battle we should be facing. The same with a complete blocking of funds to religious charities and schools though the lines there are complicated and open to reasonable dispute.

Discussion about "God" and the like is fine.  Ultimately, the evidence suggests that there is not some independent entity that people label "God" here.  The very concept of some sort of afterlife, especially one where one's sins are judged, is to me a rather unreasonable concept that people like Tom Paine or Thomas Jefferson could only accept because it was so basic to the understanding of the age. It is like suggesting we should have women in government or that homosexuals should marry or something. Plus, especially without modern science, there was so much unknown about how things work. Some spiritual entity is a lot more acceptable there. 

"God" to me comes off as a sort of poetic metaphor like "Justice" or something, which is somewhat akin to ancient Greek and Roman gods that were physical representations of justice or love or death. Fables and parables are useful ways to express oneself here, but telling children stories about Santa Claus and fairies is different than adults believing such things actually exist.  Religion overall to me meets a basic human need including people joining together, repeated usage of prayers and song, ceremonies for special events with emotional/symbolic meaning and so forth.  This all can occur with reason, freethinking, secularism and so forth.

It is on some basic level troubling that a significant portion of society do not simply have some general belief in God (which again seems irrational) but the typical evangelical approach, even if a minority (see, e.g. John Fea) are not Trump supporting assholes.  Some of this are irrational beliefs by people who on average are reasonable types -- e.g., the vast majority of Catholics accept birth control, even in the face of Catholic doctrine.  But, and this is often why "religion" is deemed tainted, a lot result in pushing for discrimination and hindering the free exercise of others. And, religious belief often is tied to the inability to properly reason etc.

It is constantly noted that "religious" includes a lot of good people, which is fine, though the observe is that those not really religious (at least as many define it) include lots of good people too.  Again, "freethinking" includes a range of people here.  And, that to me is my main focus though things like "under God" and so forth are still problematic since it hurts the campaign.

(As noted in The Godless Constitution, one picks one's battles there. Still, there is a basic problem here.  Daily, school children are told, as part of a basic statement of American values, that we live under some sort of supernatural being.  We can -- as Breyer tried to do in the Newdow case -- water that down to mean some open-ended thing, but originally and now, let's be serious -- that isn't what people take it to mean.  There is a reason that some find it appropriate to write "G-D" and not "g--d" for "good.") 

Order Day and Opinion Day #1

We are getting to the end of June though with May arguments (perhaps last held in a case where O'Connor was replaced by Alito, who was the fifth vote in Hudson v. Michigan, involving no knock warrants), we might have July opinions.  Which again was a thing back in the day when there were more opinions. So, we are down to some of the final big Supreme Court cases.  And, an order that we almost sixty pages and a decision over one hundred and seventy [Alito's dissent had multiple appendixes that appears to have helped made it unable to load the thing for a while]  shows the final countdown, so to speak, has begun.

SCOTUS granted two cases for oral argument, but that was largely a minor footnote though the immigration case's docket page has a "huh" where briefing is not done electronically for easy access. A repeatedly reconsidered case involving California not assisting federal immigration agents [this sort of thing can inhibit liberal administrations too]  was finally simply not taken.  The order list was long largely because the justices decided to send back a death penalty case that was considered by them repeatedly in conference though Alito and the other High Federalists (Gorsuch and Thomas here) were somewhat pissed off by it. 

Qualified immunity is a big thing; they don't seem to want to take those cases (though two, one involving Kim Davis of the blocking same sex marriages fame, are pending for some reason) either.  They might be looking toward Congress and that might be the best way to address the situation.  Thomas questioned, in his own fashion (legal minds on Twitter suggested of mixed value to those against the practice), QI in one case, a literally "dog bites man" case.  He also (without Alito; Kavanaugh joined him in part) dissented in not granting a carry case, one that some thought was a good replacement for the mooted New York case.  The Court in fact took NONE of the ten Second Amendment cases.  Kavanaugh in the New York case suggested he thought the lower courts were not appropriately respecting it and you figure he would join with three others to grant cert. on something.  But, it looks like they figured Roberts would not go along.

So, there was some major news even before 10AM.  I came back to my computer a few minutes after and saw no opinion on the website. What gives?  What gave was that there was difficulty downloading the thing. Eventually, we got the news that in the GLBT employee cases (note that two of the three plaintiffs died during litigation) that the employees won and Gorsuch wrote a textual ("textual") opinion noting how obvious (apparently many courts were confused for decades) it is that "sex" discrimination in the law applies here too.  Roberts made six.

A lot to unpack here. Note that as part of the Friday news dump last week, we had the HHS hand down an anti-trans rule that now comes off as rushing to get things in before SCOTUS made it all seem more problematic than it already was. Happy Pride Month!  Second, back in the day, Linda Greenhouse parsed the nature of the how the questions were crafted and the cases split up.  The idea being maybe there was some move to allow them to find some common ground, maybe split the baby.  Not sure how that really made much difference in the final result.  Third, Alito upset again:

The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should “update” old statutes so that they better reflect the current values of society.

Well, the "inevitable" part is a case of the asshole having a point. Gorsuch's opinion is appealing in various ways but the end result here as I suggested above is not so bloody obvious.  Kavanaugh dissented separately, without the vitriol and appendixes, mixing in some nice words about GLBT and how they might succeed in Congress, but that an ordinary understanding of the text rule here really puts change in Congress' court.  That isn't totally off, but the law has developed enough to pass him by.  Yes, ideally, Congress would have (and still should) pass some sort of ENDA legislation to address GLBT discrimination, but lower courts and agency developments (as Chris Geidner has noted) repeatedly has reached that point by now as well. 

Gorsuch thus is right in the end probably (and Alito probably right that "it's obviously sex discrimination" seems to have constitutional implications too), but only because over the years, the law and society had a changing understanding.  This is true in major statutory matters as RBG said in one separate opinion sometime back, probably with an eye partially on these cases.  The appeal to textualism (sometimes seen as a conservative and/or originalist thing and original meaning was cited by Gorsuch) is therefore somewhat dubious.  Both sides appealed to it and had different answers.  Gorsuch handwaved the bathroom issue that bothered various justices (including Sotomayor) as not at issue.  He also referenced possible religious liberty (including RFRA, something else for Congress to address) grounds -- another battle still to be fought  a lot more -- but noted it was not at issue here.

(The ERA also came up.  One thing that was raised was the idea that sex discrimination not being sexual orientation discrimination was simply not in the minds of the drafters.  But, he noted there were some that brought it up, even same sex marriage -- thought that was more in the age of cellphones [Alito] -- during the ERA battle.  Note that Virginia claimed to be the 38th vote to ratify and both sides -- for and against -- have pending litigation on that.  A word on that too -- just how much of a reference here at the time is enough for something to be on the minds of the people involved?  See also, interracial marriage in the 1860s.)

There was also various inside the cathedral musings here, including wondering if Roberts originally had the opinion but Gorsuch did not join or was up in the air and used that to make sure Gorsuch had a narrow opinion or was the sixth vote to assign it to him or ... After his crude same sex marriage dissent from the bench -- and even there he let the cases pend for months so that same sex marriage was established in multiple circuits, much to Scalia and Thomas' annoyance -- Roberts seemed to admit the Rubicon was crossed here.  He joined without comment a per curiam for which three justices (led by Gorsuch) dissented, for example.  The religious liberty issue, the "can they not sell them cakes" etc., will be something to look for there on that front.

People also suggested that we should not be too happy since there are various other cases (DACA, abortion) that are not likely to come off as favorable.  Plus, Gorsuch's textualism and assurance can have bad results. Sure.  One law professor type who said "told ya so" on his endorsement of his "buddy" was a bit much there.  It is a conservative Court -- let's remember that, even if there will be victories and defeats that are not as bad as we might think.  Let's still honor the victories.  As to DACA, we have another big November energy opinion since the clock is almost running out there, especially if the opinion leaves open some means to delay a bit more. So, I wonder HOW bad things will be there.

(Another running out the clock watch involves the federal death penalty cases that the feds won on a split decision in the D.C. Circuit and is pending for review.  That being the rule that the feds need to use, per statute, the means used in the state of execution.  The last federal execution was early this century.  Would five justices vote to summarily affirm or allow the executions even in the face of four liberals voting to grant?)

There was another opinion, a 7-2 (Thomas; Sotomayor with Kagan in dissent ... RBG didn't join part of the majority)  that held the Forest Service has the power to grant a pipeline right of way  in the case at hand.  It has notable financial and environmental effect though the split suggests not deemed too hard of a decision.  The oral argument was in February.  It took quite a while to show up on the website, SCOTUSBlog first reporting being informed about it around a half hour or more in, before it posted on the website.  Usually, these opinions are posted a few minutes apart. Things were a bit different today.

Finally, would have been nice to have opinion announcements telephonically today, huh?  Chance to hear Alito growl.  Seriously, that has been a concern of mine for a while and glad to see it get some attention today on legal Twitter.

Let's see what Thursday will wrought.

ETA: People who appeal to the text as is if is some obvious path seem somehow to suggest the other side just make stuff up.  But, the split in the main opinion here show that textualism turns out to be not as simple as all that. What makes the result here easier to reach is that it is not simply a match to the text, but the purpose behind it and years of understanding.

As noted in this article, the idea that sex and sexual orientation is separate is misguided. Thus, invidious discrimination over the years here was on a basic level based on assumed proper roles of men and women.  Covered more in a comment (Michael Dorf) here, the result here -- as was those involving sexual harassment and so on that might not have been deemed "because of sex" originally -- the result supports the purpose of the law too.

To obtain a correct result when applying text, statute or constitutional, the complexity of the text must be examined. This tends to, especially in hard cases (and the opinion does nod in this direction at one point), take into consideration various interpretative methods.  A result that seems to clash with text is a red flag, but the same applies to a result that clashes with long precedent or basic understanding of the purpose of the text.

They work together and worked together here. This is the path to avoid absurd results that appear in some sense to literally fit.

Rayshard Brooks Killed

honestly i’m devastated. I can’t do twitter anymore tonight. y’all can say whatever you want, but these kids don’t have their dad. that’s not nothing. it’s not even close to nothing.

— ashley buzzy mchugh (@arbuzzy) June 14, 2020

This is an Iranian-American with roots in Atlanta who is also a mom so is not quite me, shall we say.  [The reason I follow her is because her husband was a former Mets pitcher who articulately voiced his opinions on his blog, making it logical to check out his wife.  She recently also talked about J.K. Rowling's anti-trans comments on Twitter.]  But, the sentiment has a certain basic humanity to it.  This to me is important since a standard thing you here is "you don't understand."

Well, yes, you don't understand a lot of what I experience on some level (the proverbial "you" -- no one actually reads this blog). You still can understand it on a basic level.  You have to do so.  The alternative is the road to perdition.  How do we understand others, even not on juries or voting or whatever, if we can only truly understand our limited core?  You need to have some ability to empathize and consider others.  With humility, you can and should.  It's fine to be careful expressing it.  But, not having some connection is bad.  It is the road to a selfish mindset that at best leaves others be but not wanting to like serve them or something.

The incident began with a call to police at 10:33 p.m. Friday about a man sleeping in a parked vehicle in the restaurant's drive-thru lane, causing other customers to drive around it, the GBI said in a statement.

Anyway, what is this about? You know really -- it is the killing of a black person by the police for some stupid shit reason.  This being now, there were certain consequences, not just protests.  He's still dead.  Like (allegedly) passing bad money, such a person is not just selling loose cigarettes or something.  Doing something about drunk people in drive-thru lanes (or maybe one's own driveway) is appropriate.  It is how it is done here.  The reports are that he managed to take a stun gun away from an officer but how this led to him running away and then being shot three times, shot dead, is unclear.  It never should come to that. 

(Figure a few will be like "leave him there" -- yeah, sure. That's fine. I walked into my dorm room once to see some stranger sleeping something off.  I asked him to leave and he did.  If I was some woman co-ed and he grumbled about me being a bitch and staid, perhaps she should just go away? No, there needs to be a way to get him out.)

There needs to be a means to address people like this who are places where they should not be.  A few times, you will have people have weapons that make them dangerous.  But, you can say that about someone who breaks into a building and security personnel see them.  The #DefundPolice saying is that we should not have the "police" we have now -- we can define that or "law enforcement" in a range of ways so that some rather benign social service mechanism can enforce the law somehow -- dealing with this sort of thing.*  Multiple people with stun guns and lethal force to deal with a drunk guy (he failed a sobriety test) in a parking lot.  The chance something will go "sideways"  (we wouldn't be completely happy if the taking of the stun gun resulted in him getting him getting a concussion when an officer slammed him to the pavement even if some sort of self-defense can be raised -- not being 100% innocent is not enough for even that)  etc.

I still am not a big fan of burning Wendy's or breaking windows on cars etc. in response to this sort of thing.  I have this image of some POC woman working there or whose car was out of commission so that she could not drive her family to church or something.  It isn't the immediate concern at the moment but yes that is what I think too.  I'm some stupid white guy, but as noted in the book cited here at the end, yeah, you can find black people with my mentality.  Sneer all you want, but not great a new image of protest now is setting fast food places on fire.  Block traffic.  Protest.  Yell.  Hell, on some level, you can even target the police.  But, THAT seems off.

Something came to mind -- being on Twitter etc. makes me more skillful at these sort of phrasings -- that a kinder and gentler police service as now set up is at some point like a kinder and gentler slave owner. This is not to say that there lacked ways, until one was able to go all the way, to make slavery a tad less horrible. A basic way was to allow emancipation of slaves as well as means to bring freedom suits.  There were also somewhat different rules in place for slavery even in different states in the United States as well as in European powers in general even for black slaves.  And, even if a slave was arrested, they weren't simply shot -- there was some minimal process involved.  But, at some point, slavery is evil.  Shades of Sherman on war.

The police is not slavery though my usage of the metaphor is far from off bounds for some ("police are fascists" starts to suggest why) and there is clearly a certain neo-slavery aspect to criminal justice at some point.  But, I'm using a raw simile for a reason here. There is a certain core wrong in our current police system, even if it is seen in a very muted form when used in some suburban well off white neighborhoods.  And, let's be honest here.  Pointing out that not many murders are solved now is blithe answer. There are things we can say about dealing with societal violence. But, yes, certain acts of violence will be investigated.  We need to do it in a different way.  You can be mostly right and still be too cute.

And, on a related matter, it is absurd on a basic level that military bases are named after people who led forces to kill those now there.  This was in the news recently, top military people were open to addressing it, but yes, asshole racist guy didn't like it.  A previous episode of John Oliver on Confederate monuments -- when he is off, they should just show an old episode with a timely segment -- is still rather on point here.

ETA: The NYT has a  breakdown of the like thirty minute engagement that suddenly goes sideways (per one analyst on the The Stephanie Miller Show was when an officer suddenly -- after an extended calm discussion -- tried to grab and arrest him) and a minute or so later he is shot dead. He struggled and looked like he pointed a stun gun at an officer (maybe shot it wildly once) but it shouldn't have gotten that far and a stun gun vs. three bullets is not quite even odds. 

---

[The below was added and is repetitive.  But, it has to be repeated over and over, since many do not quite seem to get it.]   

* That article, like people on panels or doing interviews, will speak to some degree in a blithe way that does not address everything.  This concerns me to some degree as I said somewhere but such concerns can also be taken too far.  We can talk about the victims of our current system, e.g., when dealing with sexual violence.  This is not something to handwave at all. And, how we need to focus on the big picture to not only have band-aids, but work toward a long term solution. 

But, at least a small number of people simply put will likely be isolated at the very least from the general population such as someone who murdered multiple people.  Some very small subset can very well skewer how we view things, but should be factored in, especially since (other than the choir) they will be of particular concern of even supportive listeners. Transformative justice is an intriguing idea but this is not erased. Certain countries have prisons quite different from ours and we can learn from them.  But, they still are not merely hotels or something. 

And, though we need to think long term here, my usual pet peeve of hyperbole continues to kick in.  Biden in some interview said he was against putting people in prison for drugs, but supported mandatory drug treatment.  This is rather notable -- some median Democrat is saying even possession of heroin should not be on its own be subject to prison time. I just saw a reference, but that is a potential message.  And, "mandatory" can mean various things.  Doubtful for every single person.  Perhaps, a multiple offender or for someone guilty of more than possession or something else.

There was a response on Twitter that said this was just jail by another name. Oh?  Again, noting the likely qualifiers especially, a limited requirement to go to a treatment (involving testing, discussion groups and other things)  that usually outpatient unless the person needs to detox is akin to spending all your time in a jail cell?  Do people who actually have to spend time in jail believe this?  One person cited that jail would be a means to enforce it.  So, is community service -- like soup kitchen or litter pick-up -- "jail by another name" too?  I find this absurd.

This doesn't mean mandatory treatment is a good policy, especially except in limited cases [e.g., someone committed a violent crime as well as multiple petty thefts arising from a drug habit -- what do we do here? is at least some pressure to have treatment in lieu of other punishment a bad thing?].  But, it is not merely jail by other means.  If you want to call it punitive, fine, but nuances matter.  A vegan might have a universal unity of respect for life but even Peter Singer realized the death of a dog is not the same as the death of a human, at least as a median matter. 

Ditto someone who said a cop is "useless" even to respond to a murder.  We can formulate some alternative universe where the government is not involved in the investigation of murder of its citizens but at some point I think someone with a cop-like function will be involved.  Either way, a police officer has some value as a low level investigatory/patrol official. The problem is how this is done and the basic function is not the problem as such.  The gun or even the uniform -- though knowing the person is not just someone walking down the street is useful -- might be a problem.

Anyway, this very well can be the proverbial dust that is thrown in our eyes, leading us to miss basic things said.  I still find, maybe it's just me, that we should be careful with absolutist language.

Gave Blood

For weeks now, I have received multiple requests to give blood, but have no desire to go down Manhattan (wearing a mask the whole way) on the subway. So, it was appreciated the NY Blood Center finally had a mobile blood drive within walking distance, if in an out of the way spot. I had to wait outside in the hot sun for five or ten minutes [temp check] & wear my mask inside (at the health check, used the tongue thermometer so took it down though they used a forehead one at the door and eat my snacks; no blood pressure test perhaps a response to the times). As it has been for decades, easy peasy really.

At times, apparently my veins are not the best, they have had issues drawing but seems lately it has been easier. Better needle, I believe. Also, at times, including today, they were not really friendly at some point, here at the main blood draw. You go back to the chairs and it's "okay ... can I sit down now?" Simple polite with a smile okay would be nice. Usually, they are more friendly engaging. Such as asking your name and often telling theirs. Here, came off a rude, including simply asking if the info on the receipt was correct. Simple courtesy helps.

Satanist's 1st Amendment Challenge To Missouri Abortion Law Fails

Thirty years ago, the two prong (Establishment/Free Exercise) religious liberty argument against the Hyde Amendment was rejected in Harris v. McRae though the latter only on standing grounds.  The majority argued it coincided with religious belief but was not wrongful establishment.  The dissent did not even cover the issue though the judge below took both quite seriously and accepted one of them. Justice Stevens separately in Webster argued a state finding that "life begins at conception" violated the EC especially given it was a major religious dispute though the majority said it had no operative effect so left it be.

Planned Parenthood v. Casey noted that the choice at issue here was a matter of "conscience" and spoke of a constitutional "obligation is to define the liberty of all, not to mandate our own moral code.”  The state, more so than under Roe v. Wade, could do things to promote "protecting life of fetus that may become a child."  But, that was accepted before in the Hyde cases. That statement need not be interpreted to override the previous rule that states cannot pick and choose one "theory of when life begins."  As to the Webster decision, here something concrete is being challenged here as compared to a general concern that the statement would limit contraception rights or whatnot.  The religious beliefs of the woman here. 

It is quite possible to so interpret and figure that five justices will uphold it now.  But, the question is not clearly faced and citing how now states are given more power to require ideological materials be given at clinics as part of "informed consent" does not settle the question.  The "meaning of life" is a basic matter of belief and separate from the stuff covered in Casey.  So, I'm not sure about the lower court opinion this post is ultimately about.  (The school dancing case btw had a strong dissent.).  Perhaps, though I won't rely too much of their consistency, the crisis pregnancy case suggests the better argument is that a clinic itself cannot be forced to provide the ideological message (as compared to medical materials even including related to an ultrasound) that conflicts with its own beliefs.  Finally, perhaps, RFRA (including state RFRAs) would put a higher test in place.

There are various ways that the government can (to touch upon page cites in the opinion) do things regarding "protecting life of fetus that may become a child" or the "life of the unborn" without requiring people to obtain or clinics to provide religious laden material.  References to "life" here also is more general than the more divisive and disputed specific legal framing here.  Shades of "under God" as compared to a more detailed theistic statement.  The argument here as I recall in another lawsuit goes further and might oppose receipt of even more information.  That is a harder case though the old rule against materials that go beyond neutral informed consent very well might have been more appropriate.

There is a basic principle against forced receipt of religious/ideological  laden speech here but in a concrete way the specific burden in this case is minor. One can simply toss the material out.  This is not akin to being forced to take an ultrasound or hear a physician actually say that life begins at conception and so forth.  But, I support the general idea that abortion disputes have a religious liberty component on the side of choice.  "Satanist" challenges come off to some as hard to take seriously since it seems to be a sort of parody of religion, not actually worshiping Satan.  This should not lead one to ignore that reproductive liberty includes people making a bunch of decisions that religious sects split over.  Decisions that in various ways, including having an abortion, that might be compelled by them.

This very well can include something as basic as not taking part in medical procedures that go beyond medicine to promote beliefs that one rejects. The line there as to written materials is unclear since there can be a range of things that might clash with a person's beliefs.  As noted in writings by Ronald Dworkin and others, there is something special about life and death that warrants special care.  Again, Justice Stevens' opinion is interesting there.  OTOH, simply thinking neutral information such as embryonic development is unnecessary is another matter. The government can set forth certain informed consent laws.

A somewhat reasonable thing here is to allow the woman in question not to receive any materials with the statement cited (free exercise) while still requiring some general informed consent.  The state can have their belief on record. This sort of "splits the baby" and would not satisfy completely.  Still, it would provide an equal respect to a range of beliefs.  And, again, there can be other laws that cause religious liberty problems.  For instance, the last abortion ruling post covered a restriction on procedure during the second trimester.  Choosing how to abort very well might be a moral and religious matter.

And, yes, I think medical insurance funding should not be split by stance on abortion.  That should be left to the individual on religious liberty grounds.

Biden Clinches and Some More Voting

Biden would have wrapped up the Democratic nomination much earlier, if not for the coronavirus pandemic — 15 states, along with Guam and Puerto Rico, postponed their nominating contests due to the outbreak.

With mail-in ballots taking time to be counted, maybe a prelude to November (but reports also that mail-in voting overall has gone well too), it took until last Friday for the results to come in to give Biden the delegates (1991) needed to officially get the Democratic nomination for President.  The article also notes that he would have gotten here soon if he didn't as an act of comity agree to let Sanders keep many delegates that under the original rules would be lost once Sanders suspended his campaign.  OTOH, without the Big V, Sanders very well might not have done that and continued to actively campaign for delegates.  The pandemic underlined the need to rally around Biden.  If so, I could see this thing extending at least to the late June New York Primary. 

Biden first ran for that office in 1988 and continuously did rather badly.  He did not even win a primary until this year in South Carolina.  But, for these times especially, it makes sense he is doing well.  In the past, he wasn't Grandpa Biden, the feel good former vice president of the first black president with a bit of extra pathos given his son dying.  And, though I really wanted a woman (guess I'll have to settle with the woman who -- knock on wood -- will be the first woman vice president), admit that is the will of the overall electorate and fitting the times.* A few women, especially Warren supporters, are still somewhat bitter, but his actions in recent days overall has gained even their respect.  As to the uncomfortable "too handsy there, Joe" stuff, the TR mess perhaps ironically has led people to feel uncomfortable about bringing that up.  Again, the vp will help. 

My concerns about his age hasn't disappeared.  But, so it goes. Also, the times fit an old comfortable figure as compared to the younger alternatives. As to concern he would be too complacent about Republicans, not totally over that, though others helped ensure his platform will be liberal.  He is after all a median Democrat there and the party has moved left even since the Obama years.  And, at times, he will continue to sound too safe.  But, him winning allows the overall sane brand to win too with more left leaning sentiments etc. getting more of a say and chance of being put in place.  His actions in the last few months suggests concerns about past presidential campaign troubles also only show so much.  He has handled being the presumptive nominee well, and though people will latch on to certain moments, Biden seems to be able to be trusted there.

I misjudged the situation somewhat, the Big V did influence things too, but stick by some of my early talk.  Primaries for people like me include pushing the non-median safe choice and his past campaigns etc. justified some wariness.  Anyway, I'm ready to be Biden2020.  

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Guam has been in limbo for a while now -- let's not forget about Guam -- but turned out to have a caucus along with the Virgin Islands (who actually was right on time) on June 6th.  It was  5/2 split for Biden/Sanders in Guam with Biden getting all seven in the Virgin Islands. Meanwhile, "In lieu of a primary, the Republican Party of Puerto Rico conducted an electronic referendum among party leaders on June 5, 2020, as the main event in its presidential nominating process."  Note the original rule here is cited as this: "If a Presidential candidate receives 50% or more of the island wide vote, that candidate receives all 23 delegates."  Marco Rubio got them in 2016.  Trump this time and the nature of the "referendum" might explain why the usual small percentage of non-Trump votes are not showing up.

BREAKING NEWS: Voters outraged because they can’t vote. @cbs46
Voting machines are down & systems aren’t working all over #Atlanta
Some people have left the polls because the line has NOT moved since 6 A.M. pic.twitter.com/QfJ8fxz5TQ

— Barmel Lyons CBS46 (@BarmelLyonsTV) June 9, 2020

Georgia (with long lines and rain some places) started early voting as Biden got those final delegates last Friday.  Problems with voting led to some calls that the governor was elected illegitimately.  Rick Hasen has done a bit of concern trolling on that (you are a big election rights advocate, but you can still be wrong about something).  Yes, such rhetoric can be overused (think the margin of victory was too large to deem the 2004 presidential election in doubt even with issues in Ohio).  There is some real issues here, however, especially (shades of Florida 2000) when self-interested parties are involved.  Even if things got better as the day progressed, many would say "the hell with it" and not vote.

(One article suggested a wider problem though Georgia is getting the most attention probably given the numbers and problem is bigger: "Voters encountered long lines in several states because of consolidated polling locations, including Nevada and South Carolina, where some polling places did not open on time and the polling place locator on the state’s website did not work properly, according to voting rights groups.")  

Anyway, Hasen has flagged problems in Georgia and it is something to worry about.  This is one theme here -- primaries provide tests to the more important elections in November.  Who is to know how the Big V will affect things there. Maybe, better, the same or whatever.  After all, the numbers of voters and stakes are higher.  There are multiple swing states where Republicans can cause problems in 2020 though Democratic governors will be of some assistance. There is still the unclear breadth of legislative power in presidential elections, which the faithless electors cases might confuse only more. What if some broad language regarding state power over electors is cited?  Or would it be "legislative"?  Over recent years, just what that means (is it an overall process with a governor's veto?), has been a greatly disputed issue up to the Supreme Court.

Trump fairly comfortably (50/45, poll data suggesting that sort of thing might be much more tight this time) won Georgia, but there are other concerns here.  One major race there is for one of the two U.S. Senate seats decided in November, the other a special election for the full term of the seat now held by tainted Kelly Loeffler.  Georgia is one of multiple June presidential primaries that were pushed back, including New Jersey that was originally June but was still pushed back until July.  Not that it will be the latest -- the final primary is Connecticut, in August!

Georgia and West Virginia has their postponed primaries today with New York and Kentucky having theirs in two weeks. Georgia would have likely been pro-Biden originally, shades of South Carolina while West Virginia might have been a place where Sanders had some success like in 2016.  OTOH, Biden could have appealed to the more conservative leaning Democrats there that chose the most conservative Dem in the Senate.  Various zombie candidates (including Deval Patrick) are on the ballot in today's two presidential primary states and the loose rules in West Virginia also brings some guy named David Rice (who ran before).  One thing all those candidates do is hurt Sanders' shot to get that 15% floor.

Looking at 270 to Win, all the precincts (to be careful, this might not mean all the votes are counted with paper ballots) reported in West Virginia and the split between the top two is 65/12 with Biden getting all twenty-eight delegates. David Lee Rice seemed like a sort of "none of the above" with eight percent of the vote.  Various others (Warren received three percent) split the rest, even Deval Patrick (.5%) gaining 1% if you round up.  This suggests, with the fifteen percent floor (otherwise, each delegate could have broke down to about 3% of the vote), some sort of instant run-off voting (using the term roughly) would have given a more accurate breakdown.  Many of that 35% might still have voted for Biden, but probably someone else would have received delegates  as well.

For completeness, have also tried to find Republican presidential primary numbers.  West Virginia shows old friend Joe Walsh is gone but not forgotten (he has endorsed Biden, right?), edging out Bill Weld a bit (splitting 3.5% of the vote) with others splitting 2%.  Recall there are other Republican races, if one wants to know why around 195K people are showing up to vote for Trump at all.   I don't see Georgia numbers yet but will update if I do.  As to the Dems there, listed at about 85% of the precincts reporting but the split is 83/10 there as a whole and the estimate is that of the 105 delegates, at least 97 will go to Biden.  I guess we can talk about instant run-off here too (can mean 10 or so delegates) but over 80% seems less notable here than not even a 2/3 floor.

[It looks like no one else but Trump was on the ballot in Georgia and there was no write-in option.  Only a few states, including New York, cancelled the Republican presidential primary.  The state rules for write-ins generally are harder than many states.  Also, by the end of Wednesday, Biden was estimated to get all 105 Georgia delegates with nearly 98% precincts with a 84/10 split with Warren getting the bronze with 2%.] 

Also of special note is that Jon Ossoff, who just missed getting another to win a majority for a special election in Newt Gingrich's all district but then lost a close head-to-head run-off, is the clear favorite in the Democratic senator primary.  But, there are so many also rans that even with a 48% plurality (as of now), he might still need a run-off. The next two both have 14% or so of the vote. IRV, please! (Looks like he did break the majority line. Now win it all!) Unlike the last time, it is hard to see him not winning a two person run-off, but it would be big waste of time with that breakdown.  We can imagine a different split (such as a real three person race) but that's just silly.  The Republican winner of the House race lost in 2018 but has a rematch (one of several), herself winning the primary yesterday.

I have focused on presidential primaries here but as seen last time there are also states voting for only non-presidential races too (New York normally would have split things up, e.g.).  Thus, Nevada, South Carolina and North Dakota are also voting today.  And, a few of the local races as a whole were fairly close, one or more of special interest to some.  The next presidential primary is in two weeks and will involve New York and Kentucky. That is also the date of a few other southern state races. I see none that are scheduled before then though early voting is in place

Onward.

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* My wish was a woman candidate and went for Gillibrand, Harris and Warren there. Maybe, Kamala Harris will be v.p.  But, Gillibrand showed she wasn't really presidential material, Harris was green and never caught fire and Warren was a niche candidate that some really loved (while others at best saw her as a reasonable back-up).

Then, there were a bunch of also rans, one or more (like Castro) rather appealing but not likely.  A few -- when Biden looked like a goner -- latched on to Bloomberg, which on some level was more desperation than anything else.  Imagine that guy as the nominee with his stop and frisk policy this week.  Ha ha.  And, then there was Sanders, who some wrongly assumed was a lock but turned out again to be the gadfly with some important things to say while not really being ideal as a nominee.

In hindsight, Biden seems a lock here.  I admit to have been misled by his past failures, my own concerns/wishes and the belief another candidate would gain fire.  Kamala Harris seemed the best bet there though Warren did have some potential.  But, with special help from the black vote in South Carolina and other places, Biden was the one.  I accept it.