Couple Books

After not really getting into a fictional account of Stalin's daughter defecting to the U.S., my second "grab and go" NYPL pick-up worked well.

It was an autobiography by Jill Wine-Banks (then in her first unhappy marriage) covering her time as a "Watergate Girl." We get an inside view along with a bit of juicy personal tidbits, including an affair. She tosses in a bit about one of her colleagues thought to have a drinking problem that came off as questionable. OTOH, though it is referenced in a photo and the notes, her penchant for pins is not discussed. Well written, brisk read, though one is depressed at an investigation with actual prosecutions and executives realizing certain limits.

I re-read the Pulitzer Prize winning Original Meanings [recall that Christmas book], which was pretty interesting, but at times a tad tedious. His basic attempt here was to look at it as a historian though the final pages suggest its use as a judicial practice is dubious (if Madison can't apply it that well ...). If it was unclear in the 1790s, when its use was so recent, application in 2020 is really dubious. History as a whole, including the beginnings, should be used with other interpretative devices. A few years later, the author challenged the individual rights view of the 2A (or rather, to be precise, one form of it) based on history.

Summer SCOTUS Watch

I have often said I would remain a member of the Court as long as I can do the job full steam. I remain fully able to do that.

As noted, earlier this month, there was news that RBG was in the hospital. There was some noises that her condition was particularly troubling (she's 87, what isn't?), but who is to know? Then, there was a new report (RBG is open about her condition, but again, who is to know if she is completely so) that actually she (again) is getting cancer treatments. Be well. 

Me personally, whatever her statement here, at this point, if she actually resigns before the new Congress is in session [even the the Dems don't gain control, which would be bad, it is still likely it will be even a nearer miss], it better be by default [to be blunt -- her being dead].  The only thing to do here is to just wait and not have anything horrible happen. The goal here is to get Biden in there so he can replace her with a black woman nominee.  As to noises by Republicans that if a vacancy did arise, surely they would confirm, yeah assholes. And, that would warrant at least one (maybe more) additions to SCOTUS.  Some think "packing" the court is just mandatory. I'm far from convinced.  If that happened?  Yes. 

This brought back the usual talk that she should have resigned during the Obama Administration (with less time than others, with Stevens going until 90 and just making her the head of the liberal wing) with the "and Breyer" too added enough that it wasn't just some sexist thing.  I won't cover that ground again, but will note that at this point fixed terms make sense to me. And, for those who do not serve the whole term, I would have a default person from their circuit fill in the rest. This will help avoid gaming the system or unfair advantage.  Anyway, just recall there is a bill pending that would further ethics and openness. 

===

The week did seem to be one where we would finally have a break from the drama, after the final cases and the "death watch" week.  And, I said so on Twitter late afternoon or early evening (as an aside, the Mets started their season with an afternoon win in normal fashion -- DeGrom and the pen pitched a gem & Cespedes came back to hit a solo homer, if as a DH).  Silly boy.  The Supremes had one more thing for us -- another 5-4 rejection of a request to stop religious restrictions, in time for weekend services.

Thus, the felt need to have a late Friday order with twenty-four pages of dissents this time.  The majority (Roberts + liberals) said nothing.  This was wrong even if there was a felt belief the previous opinion by Roberts (again, only for himself, so what of the other four?) in a comparable case settled it.  We are left with the lower court opinion, in part arguing that casinos actually are not being treated better here.  I am inclined to think that especially with the higher requirement that needs to be met to overrule the district court now that the Supreme Court was correct here. Roberts is consistent in his hands off Big V decisions. The other conservatives suddenly (Alito upset, Gorsuch thinks it is obvious, Kavanaugh "respectfully" adds his .02) are concerned here.

There is some belief here that the special interests in Nevada won out here, but the early case didn't have that.  It just might be that church services are different, not only because of singing and interpersonal behavior but because churches are less regulated in the first place. So, the government is less able to intrusively check on them.  And, there was at least one case where a religious service was the source of a major outbreak.  Anyway, for Roberts at least, it seems that the ever changing nature of dealing with the Big V is the determining factor here.  He's religious liberty friendly in other cases and if this was a basic rule, he might act differently.

[ETA: Roberts' consistency here is respectable though has problems when applied to certain things.  Again, I think with such a strong split, the majority -- not just one justice -- should explain themselves.  The liberals didn't sign on to Roberts' previous concurrence.  The dissent here according to one liberal commentator -- don't recall him ever praising Alito -- has bite.  I'm open to argument there though lifting an injunction in the heat of a pandemic should be a tough test.  So, I'm inclined to think SCOTUS was correct.]

===

The one order that did drop earlier this week was a refused to issue the judgment immediately in the congressional Trump financials case immediately. This was done for the New York case, but there Trump did not challenge it (there was also some reference to statute of limitations matters).  That wasn't the case here and only Sotomayor dissented from the denial.*

So, the running out the clock continues, the judgment due to drop sometime in August.  Lower courts don't do much business in the summer and with further delays.  This is time sensitive and the upcoming election makes it of special concern. The Supreme Court should have sped things up in the front end.  Just using normal practice here, with COVID-19 even longer, is again b.s.  The House, yet again, pointed out how things are time sensitive.  Let's have fully credible government in January, please.

---

*  The Bronx with the represent again with an assist later on from AOC, with a great speech on the House floor after some asshole colleague called her a "fucking bitch" [as an aside, but able to be heard, so not doing it directly to her face is only of limited value] after accosting her outside and then giving a non-apology on the House floor. Thank you very much -- time for AOC and others to own the assholes, representation matters.

MLB Returns

Collin McHugh (a podcaster) and his wife Ashley Buzzy McHugh (more of a Twitter presence) pop up in social media and I continue to keep an eye of them after CM had something of a cup of coffee with the Mets. They both come off as smart and cool people. McHugh had injury issues and opted just to sit out the shortened season especially since he would start on the DL. A few others opted out more for pandemic reasons.

MLB will start its season this week and a quickie "summer training" is taking place now. For instance, the Mets/Yanks had games yesterday and today. I caught some of the replay of Saturday's game -- Gary was in a separate box than Keith and Ron [for whatever reason, we didn't see them, at least from what I saw of the game]. No fans in the stands etc. Since it is not like I have so much more to do, probably will watch some games. But, my heart isn't really in it. I think skipping the season would have made sense though I know why they didn't.

Well, at least we are moving from replaying playoff games and such. They started with replaying the wins in 2019. I still think (what do I know? I think the universal DH is stupid and at least two local METS reporters like it) they should have replayed other seasons, including the losses. People wanted to see baseball and G/K/R calling video games would do it.

RIP John Lewis

Goodbye, John Lewis. Thank you for the #goodtrouble pic.twitter.com/LDzDV1dKXW

— Stephen Colbert (@StephenAtHome) July 18, 2020

There is a Freeform show entitled Good Trouble and perhaps that inspired the name.  John Lewis inspired so many.  Right after the lesser known but still important civil rights great C.T. Vivian died, Lewis passed into history.  The moral vision he spoke as being "our" responsibility holds but we are left alone.

One person suggested bringing back the Voting Rights Act (a comprehensive voting rights bill is likely on the front burner if the Dems win big in November) and voting rights amendment. The current set are not quite doing the job.  See, e.g. the Supreme Court aiding and abetting a poll tax with a due process violation twist in Florida (the justices simply don't to fully go to summer recess) -- with only three liberals (led by Sotomayor again; Breyer was silent) speaking on the record with a strong dissent. 

His comprehensive vision was cited by linking to a speech he gave against DOMA.  (More than one civil rights great was gay.) His last tweet was against singling out immigrant students (the Trump policy holding that those who did not take classes in person in the fall would not be allowed to remain in the U.S. for now was revoked upon challenge).  And, he spoke with a lot more moral force than I against use of violence and vandalism in protests.

John Lewis saw Barack Obama becoming POTUS but still was something of Moses looking over at the Promised Land in some ways. His breadth of justice and moral duty almost suggests this would be so by definition.  There was of course an outburst of sadness and honoring.  It was not really a surprising -- he was eighty and fighting cancer.  But, part of this is a sadness for the times, a honoring of his vision and reaffirmation of "our" role in it all.  He spoke of a need to say optimistic, not to let despair take over. At times, all the focus on Trumpians fuckery does seem that. We need to not just focus on that.  Focus on the good and focus on the fight. And, keep your sense of humor!

The boy that once preached to his chickens died yesterday. 

(One thing that probably won't get much attention is how John Lewis actually got into Congress. He first lost to a white politician and then had a nasty race with fellow civil rights hero [if with a very different style; Julian Bond was more polished and patrician] and won with support of the white vote. After then, he had no real challenges.  His other big loss was when the SNCC moved to a more extreme and violent mentality, leading to a challenge to his leadership. This was a key turning point.)

===

I saw something where the lawyer of the last person executed noted that the person who the feds convicted years back no longer existed. He repented and spend his time in prison doing good. Such is the message of redemption that clashes some with the religion of those who support Trump (though I'm sure some of them also are against the death penalty).

I need not rest my opposition to the death penalty on such pure grounds, but do find much to the idea that executing someone over twenty-five years after the crime (or even much sooner than that) is rather off.  You are killing someone different.  Unless the person is a threat in prison -- and let's be honest to say a few are -- what is the value to this?  Prison is punishment.  For some victims, the death has some value.  But, as we saw earlier this week, that surely isn't applied consistently (nor could it really). 

The death penalty is part of an arbitrary system that adds to that of the penal system ("criminal justice" seems begging the question) by taking a life.  The broad based movement to reform the system is appreciated.  We do take more care for a life, even if only a virtual handful are executed. It is like the lost sheep in the gospels, the lone one seeming that much more precious on some level.  And, I do on a basic level oppose the death penalty because I think we do not have the moral and legal authority to execute even those who murder children to defend one's meth business.

It is usually the case, however, that one needs not -- and it's easier too -- go all the way in cases of this nature. And, each of the first three federal executions underline the problem here.  I would have to research the last three though the feds choosing one mass drug related murder -- among those three -- in the last seventy years is likely arbitrary. The kidnapping/rape/murder was horrible, especially involving a servicewoman.  But, there are many such horrible cases not leading to execution. Timothy McVeigh is of course a solitary case here.

The death penalty like torture (and it can overlap) cannot rest on the chance "what about Hitler" example.  I was ridiculed a long time ago for being concerned about the treatment of Saddam Hussein's sons.  I found a few being concerned (calling out the rank injustice of it) about the killing of Bin Laden in a raid a tad ridiculous.  I'm not a saint.  I'll leave others to worry about the soul of some of these people. But, they are not worth the lives of many more, selected by a sort of lottery, either.

The more one researches how the federal death penalty was restarted (e.g., a ACS call  on the matter in early July noted how the feds rushed the process, which ultimately was given an assist by five members of the Supreme Court, one or more members who probably would blame "abolitionists" for the whole thing), the more issues one sees. This includes three "ideal" choices (horrible crimes, white) of a troubled pool that in practice were not (the prosecutor and judge were ultimately against the death sentence in one, another had competency issues and problems could be cited in a third or fourth too).  The excessive expansion of the federal death penalty in recent years is also suggested by one or more of these or at least many on death row in general. 

The theoretical "ideal" execution is not the practice.  And, the overall experience reeks of Trumpian.

Wesley Purkey Executed or Another Late Nite Travesty of Justice (Thanks to the Barr "Justice" Department)

ETA: The third execution -- with interests that basically piggy-backed the others [lethal injection protocol and safety of clergy at execution] -- occurred today on time without further drama.  It is a "Breaking Bad" sort of situation, which of the three seems the most blatant -- five executions to cover up drug crimes, including two children.  The system is tainted, however, even if you can justify one or the other execution. And, that "if" is unclear.

Yesterday afternoon, this order dropped at SCOTUS:

ORDER LIST: 591 U.S.)

WEDNESDAY, JULY 15, 2020

ORDER IN PENDING CASE

20A4 UNITED STATES, ET AL. V. PURKEY, WESLEY I.

The application to vacate the stay of execution entered by the United States Court of Appeals for the Seventh Circuit on July 2, 2020, presented to Justice Kavanaugh and by him referred to the Court, is granted.

Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan would deny the application.

It took another twelve hours or so, reports say around three o'clock in the morning (so later than last time), for the final orders to drop. Same breakdown -- five to four -- but only the liberals explained themselves.  Again, the feds rushed to execute in the morning though not sure if this time the person (as was reported last time) was left on the table for hours until the execution was okayed.  The father of one of the victims supported the execution but noted that she was still dead so there is no "closure."  There are a variety of responses of family members in such cases and those who speak in their name should accept that.

[SCOTUSBlog's report shows even more how convoluted all the last minute litigation was.  I support a 24-48 Hr. buffer zone around the actual execution to prevent this sort of gruesome last day execution litigation process.  Once the justices lifted the stay, it was basically expected the courts had to rush thru a bunch of stuff before the execution. The process here is also tied to rules regarding when one sues etc. that sometimes is reliant on when the actual execution is scheduled.  I can see a dramatic reenactment of this in some sort of legal related show or work, viewing things from various angles.]  

Breyer again had a broader attack, including noting how how two people committed the crime the first time around but only one person was executed. I didn't toss that in last time and would be wary about relying on it without investigating why that happened. But, as covered here, there does seem to be a concern there. ["Right, the judge later said, essentially, “I’m sorry,” that this was a bad sentence. And the federal prosecutors at the time of the trial asked the Justice Department to reduce the requested sentence to life in prison. The Justice Department refused."]  He also noted that we have another long delay. Some use that to say we can just streamline the process. But, as he has noted in the past, the delays are in part a result of safeguarding the interests of justice.  He also cited a procedural issue that was part of the complications with this specific execution.

The main attack, again by Sotomayor (for four justices), regards the mental competency claim, including letting the damn lower courts do their jobs respecting addressing it.  As noted by one legal observer on Twitter, the D.C. panel involved here was not just a bunch of liberals and they all agreed he had a case worthy of review.  As with risk of drugs being cruel, this is something of an odds game though there again was some sound evidence here that it was a problem per past cases and overall.

The petition that received no comment involved two sixty something clergy members who argued it was too unsafe (especially with a staff member already testing positive) for them to be there at the execution.  Basically a RFRA claim.  From what I can tell from the ACLU release (linked above), the one involved in today's execution did risk it.  We have seen repeatedly in recent months the risk involved in these cases, a sort of Russian Roulette in various cases where some get sick and others do not.  The execution due on Friday was involved here. More to come?

Note that last month the Supreme Court held up a Texan execution when it would not allow the clergy member to be in the execution room.  The two situations might be different somehow (e.g., some implication the state changed the rule for bad reasons), but how exactly is unclear.  They didn't take the case; they sent it back, including seeking evidence the rule in place was necessary for security reasons.  Still, as with the rule regarding the exact details needed per federal law to execute, before we restart federal executions after seventeen years, seems arbitrary not to make it crystal clear, with Supreme Court review, what is necessary here.

The people executed are not exactly people one would have much sympathy with especially as people are suffering and dying because of the Big V. And, the nature of the crimes were particularly taken into consideration when choosing these people to lead the way.  But, we do have to focus on the specific sometimes, and also retain basic fairness. Middle of the night "justice" and rushed executions, each with real issues of concern that at the very least should have been handled with some semblance of regular process [an execution in August or September won't please many upset but it would improve due process].

Chief Justice Roberts has come off fairly well this term regarding the reputation of the Supreme Court.  This is a black mark.

Elephants are People Too?

Prof. Colb, who manages to find a connection with animal interests repeatedly, connects a controversial Supreme Court case involving the insanity case (some defense types were upset at the result; Kagan wrote the 6-3 opinion) to veganism. I'm not sure about the specific case involved. It's okay to say that, right?

Her own book was cited in a motion for case that has been going on for a while involving the interests of an elephant at the Bronx Zoo. I'm not sure if habeas is a suitable remedy here though the argument has my sympathies. As a judge cited noted: "The issue whether a nonhuman animal has a fundamental right to liberty protected by the writ of habeas corpus is profound and far-reaching. It speaks to our relationship with all the life around us. Ultimately, we will not be able to ignore it."

A tricky issue here is that the zoo here surely thinks they are protecting the interests of the elephant as much as other animals there. How far should that be taken? So, who should be chosen to defend animals' interests here? This does arise in the case for humans too, of course, such as let's say if an institution says they are taking the interests of a mentally incompetent person to heart but some advocacy group disagrees.

More July Voting

After the Supreme Court went on summer recess,* lingering Big V related activity still went on. After all, the MLB has yet to begin. But, presidential primaries are running their course, with Biden (even on a lagging tracker) now having enough delegates to win in the first round with superdelegates taking part.  New York and New Jersey continued to count their absentee ballots.  Looks like Sanders (via strength in some district, since his state-wide numbers is under 15%) will get at least two delegates in NJ and around twenty in New York.  Oh, and sometime in late June without us realizing it, someone was nominated to the Life and Liberty Party.

And, Howie Hawkins (like the Libertarian Party nominee, a long term safely bland option) was nominated to the Green Party.  Well, that just happened last weekend.  On Saturday, only around three months late, Louisiana's results came in.  Lots of options, including someone named Robby Wells.  The "others" split around 20% with Sanders and Warren combined getting about half.  So, Biden received all the delegates.  Four "others" split the non-Trump vote, which here was about four percent.   Note for other races, there is one big "jungle primary," which means we might have a run-off in December. Fun fun. 

Puerto Rico Republicans had an online poll of party leaders in early June and selected Trump.  At first, it looked like maybe neither party would have an actual primary, but perhaps pushed by the courts stopping New York doing that, Puerto Rico eventually scheduled the Democratic presidential primary for Sunday.  Recall too that because of our stupid electoral college system, its U.S. citizens residents cannot actually vote for President in November.  This is so even though its approximately four million people is more than multiple state.  This is not getting the attention it deserves and while D.C. becoming a state is actually as close to being a thing as it ever was really should address territorial voting and interests as a whole. 

Anyway, though the 270 to Win etc. only has a few thousand voting, nearly all the delegates have been estimated. The joker here is that Bloomberg (both him and Sanders island-wide got around thirteen percent, but perhaps went over the floor in certain districts, which is also how the floor works)  got a couple delegates this time.  Not sure if this is from long ago ballots or if more recent people voted for him. The last time someone other than Biden or Sanders (putting aside apparently two unaffiliated delegates in Kentucky, maybe) received delegates was March 3rd. 

[NY aside.  Was it worth it to allow New York to have a presidential primary even though the results suggest Biden received most of the delegates and four out of five votes?  Yes.  A large chunk of the voters already would show up for other races.  Many of those who did not resided in upstate areas much less affected by the Big V.  Extended absentee voting was available and the extra work there is likely not excessive.  Things were better by late June, but they also could have limited in person voting even more if necessary.

OTOH, the voting very well could have been done better, including providing means (there was a 15% or so refusal rate by one estimate I saw) to allow correction of errors. The confusion was seen by the people at my polling place not even knowing at the start there were two ballots (the presidential ballot being added after litigation) and a message later in the day suggested that they weren't the only one. 

And, basic democratic principles warranted giving the people a chance.  Finally, not doing so resulted in feelings of being cheated that should be avoided whenever possible.  No other state -- though again Puerto Rico seemed to be thinking about it -- found it necessary to simply cancel the presidential primary.  As is, not having a Republican presidential primary was somewhat dubious.]

Tuesday involved other state races, which will continue into September.  Alabama (Republican) and Texas (both parties) had run-offs and the "let's get rid of Susan [Collins]" Maine congressional primary race.  Susan Collins herself is running unopposed.  Jeff Sessions is in his 70s.  Time to retire, big guy.  The race is ugly and let us recall that the move is (which people expect) to replace Sen. Doug Jones, who is a perfectly respectable honorable senator.  With some troll.  But, it's Alabama, so though I won't give up on it,  it's an uphill battle.

The main race in Maine is Sara Gideon vs. longshots to go after Susan Collins. An interesting bit of news there -- Bre Kidman is the first openly non-binary person to run for US Senate.  Texas has multiple races from earlier on because candidates did not receive a majority of the vote.  This is better really than some races in let's say New York, where a fraction of the voters (a House seat represents around three quarters of a million people) of the district decide things with maybe as low as around a third of the vote determining things.  That is a safe blue seat where the winner of the primary tends to clinch things.  M.J. Hegar or Royce West for senator would be the most important.  Maine has ranked choice voting so avoids runoffs.  BTW, there has been some talk that Biden actually has a chance in hell to win Texas.

[I'll update if there are any surprises in the top races. BTW, Trump's old personal physician is running in a House race in Texas.] 

Okay.  Well, there is now one (Connecticut) primary left in the presidential race but still a significant number of state races. I'll do a clean-up entry next month with the final numbers of races such as New York as appropriate. Bloomberg actually getting delegates suggests even now a bit of news is possible. Of course, the big thing will be who the veep will be.  Will not have scheduled entries for the state races, but they are important in various instances and overall given local government is quite relevant.

---

* As seen by the death penalty cases, and there might be additional ones as more people are executed, summer recess does not mean inaction. So, e.g., the House asked CJ Roberts for accelerated action in the Trump case just decided.  The Supremes also put out the October calendar, basically filled with cases that was postponed from this term (which let us recall does not end until the first Monday in October).

Also, RBG is in the hospital again, raising the usual "OH.MY.GOD" comments.  But, have not seen anything that makes this any different than multiple other cases.  She's 87.  Yes.  But, we have to rely on her hanging in like she has for years.   

Federal Executions

Since 1963, three people were executed by the feds. Timothy McVeigh (our "what about Hitler," basically), someone behind the murder of multiple people as part of a drug smuggling ring and someone who kidnapped/raped/murdered a servicewoman.  This all happened in 2001 and 2003. There does not seem to have been much of a push to re-start the process.

But, AG Barr wanted (one more way, somehow, one pines for Jeff Sessions) to find more ways to screw us over, and a few were scheduled to start this very week.  There were various attempts made to delay the works, some person specific (e.g., a claim of racism).  The major collective argument (that seemed to have some merit) was that the protocols set up violated a statutory requirement that followed local rules. But, a conservative leaning panel held 2-1 it did not, there was no en banc reversal and only RBG and Sotomayor (on the record) voiced a desire to take the case.  Seems a split ruling that could lead to re-starting executions after 17 years, one with major federalism and even agency law issues, would seem to justify full review. 

Some of the approaches used to hold up the works have a bit of irony. There is the argument that religious liberty would require delay because the Big V makes the spiritual advisor not available.  A related concern was raised by family members of the victims who said they could not safely travel to view the execution (who didn't want the execution to take place anyway -- this happens though it conflicts with the "what about the victims" narrative of some people)  but on Sunday (the executed scheduled for Monday) the court of appeals overturned. Doing the Lord's work, I guess.

And, then there is the temporary hold based on the dangers of the means of execution (not exactly a concern for five members of SCOTUS).  Now, this very well might be based on good facts, but again, we are working with bad binding SCOTUS precedent here.  Let's say it does not surprise (though I'm fully supportive of an immigrant non-prosecutor from a non-elite law school) the Obama appointee involved was (per Wikipedia) "a trial attorney and supervisor at the Public Defender Service for [D.C.]."

The Barr Justice appealed, saying there was no chance that her order would be upheld. Sure.  Delaying for the sake of delay is only allowed when investigating Trump. But, the Court of Appeals did -- not much before midnight -- hold things up.  Briefing is due in ten days.  It is overall rather absurd to rush things near an election like this.  Just postpone the execution until next year.

ETA: CJ Roberts in his only written dissent of the term started off with a statement of the horrible nature of the crimes of the defendant at issue when the matter at hand was jurisdictional matters.  Concerns about victims is somewhat selective. Three close family members either wanted the execution of Daniel Lee Lewis not to occur or to be delayed so they could safely travel to watch the proceedings. Watching an execution is cited by supporters of the death penalty as important for closure.

But, here, the family members' request was rejected. The final rejection occurring two o'clock in the morning without comment.  The district court thought the request sound and there is some specific statutory concern for the victims here.  Yes, for the second time in a few years, we had a middle of the night ruling, split by ideology, in a death penalty case.

This time, the execution actually occurred -- eight o'clock in the damn morning.  Such a rush!  Well, it isn't Trump enabling.  Realize people are cynical here, but litigation takes time. This is the first federal execution after seventeen years. A serious challenge involving the statutory requirements of means of execution was settled recently.  The court of appeals had expedited briefing due in ten days.  And, giving the lower courts more power to weigh if Congress is correctly using its legislative oversight was deemed appropriate.  Let the damn lower courts weigh the specifics of the fact based 8A claims here.

(The district court judge okayed a request to preserve evidence of the execution to study what happened.  Other than passing immediate press reports that the last controversial execution went off without incident, it is unclear to me if it was investigated. You would think it might have been with all the controversy up to and including the Supreme Court. OTOH, a lawyer involved said that perhaps we simply are unable to know.) 

In the middle of the night, 5-4, the Supreme Court summarily showed a rush to let federal executions start again. Three justices joined Sotomayor's dissent calling them out for this travesty.  Breyer (with RBG) again noted the problems with the death penalty as a whole, including the fact he was on death row for two decades.  I think this is a bit of an overcorrection of how "well" liberals had it this term -- you focus on the positive while remembering it is still a conservative Court -- but sometimes (like Trump) you remember how bad theses people are.

(Justice Kennedy early on  was somewhat supportive of means of execution claims but from Baze on went along with the conservatives including the somewhat angry Glossip opinion.  But, Kennedy at least held up the execution there to allow the case to go on. Well, eventually.  Oh. I'm thinking of the second case, that eventually was decided with his replacement.)

I know it's hard to care about the fate of a multiple murderer, though it helps that the family members were against the execution too. But, sometimes, you need to focus on a single thing and the basics of right and wrong. And, basic fairness.

----

One more thing: It was noted on Twitter by someone that Clinton (the 1990s included an expansion of the death penalty) and Obama (who defended it and refused to commute the sentences; the person sarcastically noted an Obama person felt even asking if he would do that was stupid) helped.  Plus, Obama supported federal trials with execution as an option.  Granted.  There is an extra bit of "fu" here but the system is arbitrary.  Something real bad is going to happen eventually.

I'm not totally on the train there though. Obama and Clinton are not in the same position here, particularly Clinton's support of tough on crime measures.  Obama not only didn't actually carry out the execution of anyone and helped delay, his administration helped delay it in the states by holding federal law made importation of execution drugs illegal if their safety could not be secured.  This was a significant decision.  As to his support, yes, he wasn't totally against the death penalty. He wasn't the radical socialist stereotype some made him out to be (or maybe wished he was).  He was more moderate, matching the public at large.

Finally, I'm wary about any idea that he should have simply commuted the sixty or so people [the ones chosen to die by Barr would likely not be the top on any list there] to LWOP or whatever.  One or more governors did do that though even there the rule tended to be a moratorium. The pardon power is very well pretty absolute except for a somewhat unclear impeachment exception or illicit motives like bribery.  But, as matter of separation of powers, it is an iffy matter.  After all, in theory, you can just commute every possession sentence to time served too. 

Roger Stone Commutation

Sen. Leahy: “Do you believe a president could lawfully issue a pardon in exchange for the recipient’s promise not to incriminate him?”

AG Barr: “No. That would be a crime.”

#PardonMeTrump@ProjectLincoln pic.twitter.com/mH9S3lekOT

— Aryi (@aryi3025) July 12, 2020

AG Barr -- though maybe under oath he would weasel about how it isn't a "pardon" -- let it be known that he was opposed to the commutation of Roger Stone.  (Of course, he would not grant the premise applied here!)  Note that a full pardon would likely leave him open to actual testimony, given the Fifth Amendment immunity would be gone.  OTOH, the top Republicans (the coat-less one and the Drama Queen from SC) supported it after it was dropped as the latest bit of Friday news dump fuckery.  The corruptness of it all is apparent:

Roger Stone isn’t just Trump’s confidante or friend. According to newly unsealed material in the Mueller report, he’s also a person who had the power to reveal to investigators that Trump likely lied to Mueller—and to whom Trump publicly dangled rewards if Stone refused to provide Mueller with that information. Now, it seems, the president is making good on that promise.

Then, there is the basic wrongs involved:

First, there is the nature of the offenses that Stone committed. He lied to Congress repeatedly to obstruct the investigation into the Trump campaign’s contacts with Russia. But his lies were not only numerous, they were obvious. He claimed to have no written communications about WikiLeaks founder Julian Assange, yet he had many such communications. He claimed to have no written communications with his intermediary to WikiLeaks, yet there were hundreds of such records. He said he never discussed his conversations with the intermediary with anyone in the Trump campaign, yet he did so on a number of occasions. To tell such blatant lies, and expose oneself to prosecution, raises a question as to whether he was doing so with the belief that he would not be punished for these actions and, if so, why he thought that was the case.

Then, there is the statement put out ("Russian hoax" etc.) on the official White House page, which still makes me want to throw up in my mouth a bit more than his usual avenues of b.s.  This lead even the "I'll let my report speak for itself" Mueller to feel compelled to speak via op-ed:

We now have a detailed picture of Russia’s interference in the 2016 presidential election. The special counsel’s office identified two principal operations directed at our election: hacking and dumping Clinton campaign emails, and an online social media campaign to disparage the Democratic candidate. We also identified numerous links between the Russian government and Trump campaign personnel — Stone among them. We did not establish that members of the Trump campaign conspired with the Russian government in its activities. [This doesn't mean it didn't happen. Obstruction, up to Trump, inhibited full investigation here.] The investigation did, however, establish that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome. It also established that the campaign expected it would benefit electorally from information stolen and released through Russian efforts.

Or, simply put, he's still a convicted felon and rightly so.  There are blatant moves that happen from time to time that underline in thick sharpie ink (that's an allusion) how bad this guy is.  It's just a bit more blatant than usual.  One check would be congressional investigation and ultimately impeachment.  The "reasonable one" put made up limits on Congress there last week.  The blocked Obama nominee (a key move ultimately regarding the leaning of the circuit) has it right on that point. 

The Mueller Report, following a limited mandate made more so by a conservative (in a principled sense) leader, was a powerful document with more left on the table that we do not know.  It has somewhat gone into the memory hole after an allegedly (says some) bad appearance by Robert Mueller (who surely didn't want to be there, in role he is not really fit for) in front of Congress.  It was barely touched upon during the impeachment proceedings though the whole thing had a "here we go again" quality that made it very relevant.  Perhaps, we need constant reminding.

====

A couple other things.  First, here is a Native American take on the big Supreme Court case on that front at the end of term.  Still not sure if the decision was correct -- the Native Americans very well could be both screwed and the "right" decision going the other way -- but important to have that.  And, relatedly, the person there on Twitter supported the (finally!) move to change (new name pending) the "Washington Redskins" name but also says other such names like the Indians, Braves and Blackhawks should be next. 

And, the new and "improved" blogger editing feature is aggravating. The pull down list is hard to use, the quote (blockquote) function never works and overall I find it hard to create my usual content.  I tried like three times to embed the tweet and put the blockquote found at the top here and it just didn't work. The old blogger is so much easier.  The only thing that is really better is that you can publish without moving out of the editing box so it can be easier to correct mistakes later on. 

"Write Before Christmas" (It's a pun!)

After her boring boyfriend does her a favor by dropping a Christmas nut shortly before the holiday, she sends the five cards she planned for him to five people important in her life (best friend, aunt, brother, music teacher and boy band singer who helped her when her parents died).  The Hallmark film is made up of their stories, she interacting with the son of the music teacher (the two were on One Tree Hill together and I saw him before in a non-holiday Hallmark film; another familiar face is Lolita Davidovich, who I first saw back in 1989 in Blaze).  

I missed this when it was first on and caught it as Hallmark is replaying a bunch of Christmas movies again.  It is a well acted film that provides each duo their moments (brother is in the military, aunt is a widow who hooks up with a widower and his dog and the boy band singer finds his mojo again; no romantic love story there though love of his brother is important -- arguably a bit of a gay vibe to the extent Hallmark allows itself ever to do that).   It is more brief, but her friend also has to deal with her and her husband disagreeing on when to have a child.

The mandatory misunderstanding is over pretty quick since after all you have four/five plots.  Glad I found it.

Virtual SCOTUS: We're Done ... See ya in October

With ten cases, some major, in May, it turned out that SCOTUS got out of dodge pretty fast -- via a novel (should be typical; even here you wouldn't know from it except for the date that something special happened) end of the term Chief Justice press release this morning, they aren't even waiting to drop the clean-up orders.  We also heard about a few more more minor court retirements. As one veteran court watcher noted, we didn't hear about Kennedy at first either.  Will see if we have the normal three summer order list days. An announcement is usually posted a little while after the final day of the June session.

The first case today is a bit of a joker.  By a sort of a quirk, the Oklahoma Supreme Court held that under the Major Crimes Act that a chunk of Oklahoma is still "Indian country," though people figured that wasn't so since around the first Roosevelt Administration.  It was split 4-4 with Gorsuch not taking part. They found another case to hear the question, now with a full (if more tainted) bench, and it came down 5-4.  Roberts wrote his only dissenting opinion of the term (another court watcher flagged one other time he was in dissent -- in the unanimous jury case) and the Court's big Native American guy (aka Stolen Seat Guy) wrote the opinion with some eloquent flourishes about the rights and wrongs of Native Americans.  Still might be the wrong result.

Kavanaugh has already shown concern about racism (at times) and trying to find a way to thread the needle.  Gorsuch is a Scalia/Thomas guy who will (in his particular voice, often a tad full of himself) go his own way, sometimes to reach a good result.  I won't pretend to know if this is the right result, but it's the law now.  I'm inclined to think Roberts very well might be correct.  Us suddenly realizing such a major matter of jurisdiction is actually Native American with so much water under the bridge seems unlikely.  But, sometimes, major questions are pushed under the table and the results leave something to be desired. Or, the implications are ignored unless we are forced to decide. We shall see how much this matters.

(As with the faithless electors duo, the other case was decided by applying the one that received full treatment.  Gorsuch did not take part but here alone Thomas and Alito still dissented.  Roberts and Kavanaugh stuck with stare decisis for the day.) 

Roberts had both of the Trump financials with Thomas and Alito in dissent in both.  Roberts channeled John Marshall here, including keeping various balls in the air while calling balls and strikes.  The state case came first and the opinion is dealt with in around twenty pages with the headnotes doing a good job summarizing things.  The broadest argument made wasn't even accepted by the dissenters.  Basically, "the personal accounting firm of President Donald J. Trump, for financial  records  relating  to  the  President  and  his  businesses" can be subpoenaed in a state grand jury proceeding.  No heightened scrutiny is involved, except some concern for his office and needs. Like others, evidence of harassment or overbreadth can be raised.  So, the matter is sent back for further proceedings. 

Being July, the assumption is this won't be decided before the election.  This makes one cynical and pessimistic.  Maybe, the grand jury itself will see the materials in secret before then.  Still, the net result here is fair enough -- we shall see if any skullduggery gives Trump special favors later on.  The result here is understandable since it in the long run honors the power of the courts.  There was some possibility that federalism concerns would be flagged, but then that goes both ways -- honoring federalism means honoring local courts.  I'm unsure what will happen, but in the long term, some justice and clarity very well might occur regarding Trump's financial crimes.  His niece's book (she also helped the award winning NYT report) also is well timed now to further that line.

I am less accepting of the congressional investigation decision which has the same breakdown. (Kavanaugh concurred suggesting some middle standard in the New York case; he didn't here.)  The dissents were even more shoddy though -- the concern for Trump's so-called "private" papers (seriously? it is not like they are asking for medical records -- though via the 25A they very well might -- or something)  by some nebulous right to privacy.  The dissents also basically channel Trump's "dude process" arguments by laying on additional fake rules (e.g., "you can only do this for during an official impeachment proceeding").  This case was held in December, before the impeachment.  The House flagged that it was impeachment related.  The second count was about obstruction of Congress.  But, unlike the Nixon tapes, the thing was delayed for over six months.  The result delays things further, probably past the election.  Again, in theory, not necessarily.  Seems a tad optimistic. 

The result was somewhat expected -- neither side lost really, but a new more restrictive balancing test standard was crafted for the lower courts to apply.  Thus, delay continues.  This is making shit up.  Congress has power to investigate, including the head of the executive department up to and including impeachment proceedings.  The way they do this is a political question.  There were a few cases that were concerned about abusive investigations of average people, including during the McCarthy Era. This ain't that.  The guidelines on some level seem reasonable. Trump should lose each. But, so what on some basic level.  On some basic level, yes, rule of law was upheld. The bottom line is more hazy. 

Then, we have the final orders.  A few cases granted that do not seem too notable. A curious footnote was a lagging qualified immunity case involving Kim Davis (remember her?).  No action seems to have been taken.  BTW, two federal executions are scheduled next  week, one temporarily stayed.  Summer order lists scheduled with one in September this time with everything pushed back.  [Slightly edited.]

ETA: Since people have been focused on the Trump tax returns, it is important to underline the breadth of the concerns of the congressional subpoenas sought here.  It underlines too the bs of delay and enabling:

The House subpoenas are not about tax returns. The most important of them--the one most likely to be upheld if there's still time--is HPSCI's, which is designed to assess whether Trump has foreign entanglements that might explain his obsequiousness to Russia. That might not change any votes among his 40% or so, but it sure is important for the Nation to know if its President is compromised by, or indebted to, foreign powers.

(comment here). Relevant too with the Friday news dump of Trump commuting the sentence of Roger Stone basically as payment for keeping quiet.  Top Republicans are already actually supporting this move.  Note too that an abusive use of pardons to obstruct justice was flagged in the Mueller Report.  Which is basically down the memory hole.

Virtual SCOTUS: Religious Liberty Edition

(It looks like the final cases will be handed down tomorrow.  Before 10AM, I thought that there would be at least two more decision days -- also was right that Alito would write one of these opinions -- though sorta thought it would continue until next week. We will have a clean-up order on Friday or Monday too.)

We had a bit of news on Tuesday.  First, long term female employees (the marshal and reporter) will retire.  Also, it came out -- after he kept it private (cf. RBG, who repeatedly tells us what happens to her, but he is after all twenty years younger and not deemed a step away from death's door etc.) -- Roberts collapsed (Strict Scrutiny Podcast mentioned a lot of blood) in June but apparently it was just him being dehydrated. Nothing serious. 

Given his position and the fact it will come out anyways, I agree full disclosure here would have been the better approach. And, just do it by a press release, on the page. None of this sending messages to the media.  I'm tired of getting news indirectly like that.  As to the continual assurances about "all the justices are healthy" bit, well, the idea is that he is.  That doesn't mean the justices lack any issues, including the general health issues.

It's important in today's SCOTUS decision not to lose sight of the people involved. One teacher, Agnes Morrissey-Berru, alleges she was fired because of age discrimination. The other, Kirsten Biel, said she was fired after revealing she had breast cancer. Ms. Biel has since died.

— James Martin, SJ (@JamesMartinSJ) July 8, 2020

Yes.  The same thing as to his comment about targeting GLBTQ employees.  The constitutional issue is the specific thing involved here on the SCOTUS level, but there are other issues too.  As to that, the ruling was 7-2 with Sotomayor (with RBG) with a strong dissent.  The dispute is a reach of an earlier decision involving a ministerial employees at a religious school.  The original case was problematic since it allowed religious schools to avoid neutral discrimination laws that do not involve religious disputes.  I understand the caution in fine tuning what sort of teacher is "religious enough" shall we say, but the rule here can be very open-ended.  Time will tell how much.  

There is also a usefulness in thinking broad in the contraceptives mandate case.  The PPACA includes a provision for preventive care with specific concern for women's health.  Contraceptives is but one aspect here, but it is a common sense one that was well understood to be part of what was covered.  The specific debate here is the discretion to have a broad religious and moral (of particular concern) exemptions.  As RBG (with Sotomayor) notes in dissent "the government has estimated between 70,500 and 126,400 women would lose their “no-cost contraceptive services” if more employers were exempt from providing it."  An open-ended approach here burdens third party employees, which as RBG notes, has religious liberty problems. 

The issue again arises -- just what does "religious liberty" mean?  Opponents of this result talk about health care, birth control rights and maybe economic rights (health care coverage part of compensation).  But, how I see it, the religious and moral rights of the employees are in the mix too.  Our laws protect religious liberty in various ways, including providing religious exemptions to employees and those in prisons.  So, e.g., you will still get unemployment benefits if you cannot work because of a religious belief.  The needs of the employees here if anything are stronger specifically than the Little Sisters of the Poor, who as I understand it will be exempted anyway given the nature of church plans. 

The whole set-up does get rather complicated in the weeds.  So, Kagan (with Breyer) argues that Chevron deference gives the executive here the ability to parse just what is required (or allowed by its discretion), she thinking neither Thomas (for the majority) or RBG right to think things are so clear.  But, (and on this Alito with Gorsuch in a separate opinion agrees as to the likelihood of a claim arising, but Alito would say RFRA requires the exemption here) it very well might later be determined it was done in an arbitrary way.  RBG thinks they bent over backwards too far in favor of the religious (and moral) beliefs of some, burdening third parties.  Legislative clarity would be helpful.

Finally, an hour or so ago, the Supreme Court (without comment) turned down the final appeals of Billy Wardlow.  His basic claim was that Texas did not have the ability to show danger of future dangerousness after his murder at eighteen.  The person at that age is still developing and in effect it builds on the fact we do not allow executions for those under eighteen.  The coverage has also spelled out that in the twenty-five or so years he has been in prison (though he still is only in his 40s), he “known for counseling prisoners having emotional trouble, fixing their typewriters, and scrubbing the showers to bring them to his personal level of cleanliness.” 

This does not seem like one of those "worse of the worst" cases that require us to have to make pure decisions on how the death penalty per se is wrong.  Saw some mention about how he shouldn't be executed for a "mistake" at eighteen.  Will not frame it that way.  But, still as a matter of public policy, it seems like a bad call.  And, there is at least a serious due process and Eighth Amendment claim too.  I'm disappointed that neither Breyer (who is especially concerned about those on death row for a long time) or Sotomayor said nothing.  Anyway, after a lag since February, Texas has executed him.

July Primaries Begin

We normally have primaries throughout the year into September, but this year we have presidential races pushed back with a few races in July and one in August.  I noted that enough votes have been counted in New York for 270 to Win to estimate that Biden now has enough votes to win on the first ballot even if the superdelegates took part.  OTOH, the AP delegate tracker does not include them [looking Wednesday night, it does now], so we have something to wait for there. Well, for those who are trying to find something to wait for in a race that basically was over in April at the latest.  Anyway, there is some concern that we don't drag this out this long in November.  

The races today are in Delaware (only presidential primary) and New Jersey (all federal races), but since they are mostly by mail, we will have another wait (says here about a week) on our hands.  Delaware has Biden, Sanders and Warren with Roque De La Fuente (who was nominated for three third parties, that I know of) is the anti-Trump option. Meanwhile, New Jersey [over 100 delegates] has Biden, Sanders and uncommitted while Trump is running unopposed.  We also have the Dem turncoat running in New Jersey.

A small sample of the Republican presidential result at 8:40PM actually has over 25% of it going against Trump.  Let's see how that holds, but the usual trend is around five percent with at most ten percent.  And, very early returns have Biden likely to get all or nearly all of the delegates in the two states.  But, we shall update things.  There are a handful of state and presidential races this weekend and next Tuesday.  New York will continue to count during this time.  And, then things skip to August with Connecticut as the last presidential primary state. 

Anyway, good Biden op-ed though the amendment idea is off.

Morning Results: The anti-Trump result in Delaware has dropped to 12%, which is still more than was in place generally.  Republicans have dropped a name, Tom Kean Jr. (his dad was governor, president of Drew University and co-chair of the 9/11 Commission), to regain a House seat.  Most of the races are not close, such as one competed race deemed settled (another Kennedy), but maybe Sanders (12%) still has a chance to win delegates in New Jersey.  Uncommitted is less than a percent there. Sanders received seven percent, Warren three in Delaware in early results.  Will update.

Virtual SCOTUS: No Drama Monday

We are into July now, but with May orals, more SCOTUS opinions are forthcoming.  There were three cases probably likely to be not too stressful: a do not call matter (what happens when an exception for government debts is added to a general law), a Native American sovereignty case that is splitting the justices but isn't really an emotional case and the faithless electors case that the justices seemed to agree had to go to the state.  The first and last were handed down, both without much stress. 

Justice Kagan (with Thomas, Gorsuch going part of the way, agreeing on different grounds) has a crisp faithless electors opinion of a little over seventeen pages with a lot of history and some jokes.  Basically, even if some framers thought the Electoral College would involve independent voting, the text doesn't compel that and history never had it.  A sort of clash of originalism with textualism and post-ratification history.  They took the case basically because of competing lower court opinions, Sotomayor not taking part in one because she is friendly with a party.  The case everyone joined was just applied to the other though Thomas alone this time only concurred. Gorsuch joined Kagan's opinion in full too, which is a bit confusing, since the two approaches don't quite seem to match up. 

The other case -- see the blog post -- also was decided as expected.  The debt provision was deemed to be illegitimate content based discrimination but it could be severed, allowing the overall law to be upheld.  The statute in this case easing the process by specifically having a provision for that.  Sotomayor concurred, if agreeing with Breyer and the libs that a lower level of scrutiny could be applied to such an economic regulation.  As the majority notes, Breyer's approach doesn't match precedent -- I respect it, but think here the government's interest is just too weak.  Even Breyer admits a regulation of who can call someone deserves some extra scrutiny.  Brett in the majority opinion sucks up to three different justices though in one case (rightly) calls out Breyer for not holding to precedent.  

(More here.  This case is easier since we are dealing with phone calls, so even though it's an economic regulation, it still is a regulation of speech. On that front, I'm wary of Breyer's approach.  But, a few years ago, a regulation regarding credit cards at point of sale. Seems a stretch.  As to the result being a cheat, as noted by one person, that is how the cookie crumbles. You sometimes lose; you sometimes win in a dubious way. In the long run, the equality principle can help in some other case.)

I think it a good idea to space out opinions to allow them to be reported and digested separately.  Again, wish they had opinion announcements available here.  No report yet when the next opinion day will be, but figure there will be at least two more (with a clean-up order list).  There is also an execution scheduled later this week of someone who murdered over twenty years ago at age 18.  If need be, this entry will be edited.       

ETA:  Later in the day, we have this: "The U.S. Supreme Court refused to let construction start on TC Energy Corp.'s Keystone XL oil-sands pipeline, rejecting a bid by President Donald Trump’s administration to jump-start the long-delayed project."  But, so says the article, construction elsewhere can go on. No explanation on the whys here.  On the docket page, the briefing speaks of an Endangered Species Act requirement. 

Billy the Kid vs. Dracula

This is a low rent quickie from the 1960s with one horror movie master (he looks long in tooth here but John Carradine continued making movies into the 1980s) and a bunch of character actors, often of the "hey, looks familiar" (one Kurt Russell's dad) variety.  It's fun silliness. 

Almost Heroes

I might have first saw this via Blockbuster but downloaded it from demand the other day.  Still found it amusing.  No classic but great for television viewing -- it has many amusing vignettes, it is pretty well paced, the history plot interests me personally and Christopher Guest (and various character actors) crafts a professional film.  This is half the battle, even if a movie (and this too has this quality) is somewhat hit and miss. 

Anyway, liked Matthew Perry in a few films, including this one.  His best, which gets the best reviews, is The Whole Nine Yards (followed, for some asinine reason, by a really stupid sequel), which also benefits from a good cast.  The other (which takes advantage of the Chandler "he's gay, right?" bit) is Three to Tango.  From what I saw of it, Serving Sara was not really worth it.  Perry has a long resume with a lot of subpar content.  He also had some extended guest starring roles on more successful shows. 

Hamilton etc.

There is limited holiday related content among the history and book related content on C-SPAN this weekend.  It is a timely time to drop Hamilton though Disney Plus recently stopped having a free trial.  I have listened to the soundtrack, but do not want to pay to watch it on my computer screen.  There have been a lot of commentary, both supportive and not, and here are some links with a historian point of view. One view is that the use of POC as cast members colors, shall we say, our views of the subject, including how some people can rebel.  Note also this discussion of the often quoted "sleep under bridges" metaphor even by conservatives who seem not to consistently apply its principles.

In general, its helpful to get some background to understand the context of the holiday and the Declaration of Independence, which is specifically what happened today.  Independence itself was declared a couple days before.  I'm re-reading Carl Becker's classical book on the philosophy of the document. There is a lot of complexity in a few paragraphs, including to me a bit near the end of what independent nations "may of right do."  Not everything as I argued in the Bush torture days.  You can check out here to get more information on the charges against the king and a bit here on one not included.

Happy Fourth of July

We are governed by a tyrant. 

Virtual SCOTUS: Pre-Holiday Orders List

A normal term starts in October but the Supremes are basically off for the summer except for scheduling three "summer order" days and deciding any miscellaneous action that comes up such as some death penalty case.  There are some high profile cases handed down near the end of June and then a sort of clean-up order day around now -- if more like the final days of June. 

This being a different sort of year, the special conference (Wednesday) and orders release (collected in an "orders list") today was somewhat different.  After all, it was announced -- you can find it on the calendar on the website if you know where to look -- that more opinions will be released on Monday.  Well, one or more.  There are eight left, two related to each other (the two faithless electors and Trump financials).  So, we did have some typical things, including sending back some cases held to see how opinions on related matters were handled.  But, it was not the end of the term.  We will likely get another one later on. 

Various pending abortion cases were addressed in a fairly busy three page order list.  Thomas alone [without comment] wanted to take a case changing a "bubble zone" to protect a clinic.  Rehnquist Court decisions up to a point upheld that sort of law though a Roberts Courts ruling said one went too far.  Roberts Court precedent also expanded concern about allegedly non-neutral regulations of speech.  So, the argument had some bite.  A few other cases were just denied, including concerned with the standing of the clinics. 

(Relatedly, they did send a case back to apply the religious funding opinion. Looking at the docket page, the facts don't seem on point.  But, one shouldn't bet on that being the determination. This overall shows the importance of the membership of lower courts -- a range of discretion is still in place.)

Indiana -- who we already saw earlier when Thomas made out if protecting abortion was akin to eugenics -- did get the chance of two of its cases (wins for the clinics) to be re-examined per June Medical.  One case involves a particularly burdensome parental notification law and the other a waiting period tied to an ultrasound requirement (a sort of ultrasound with further insult).  The lower court basically will be left to try to determine how much Roberts concurrence watered down abortion rights.  These are the type of laws that very well might be upheld under his rule.  A harder case would be a blanket ban, even of a second trimester procedure.  To be cont.

There were various reactions to the abortion ruling, including people who warned that it was a sort of "Pyrrhic victory."  This is apparent to some degree but like Linda Greenhouse noted, "for now," the opinion was still a victory for abortion rights.  The lawyer for the clinic said as much at Rewire.  But, yes, a "chill wind blows" (to quote Justice Blackmun) long term here.  So, it is important to have state and if possible congressional means put in place to protect abortion rights as well as new federal judges appointed by Democrats that will apply substantial burden rules with a good eye. Or as best it can with Roberts.

The Supreme Court also took some additional cases, including related to the responsibility of businesses in foreign countries to guard against violations of international law.  And, we have an update of the case involving the House Judiciary Committee attempting to obtain some unredacted portions of the Mueller Report.  As part of the continual running out the clock process, the case was taken for argument, so the House Dems will not get a chance to get it until next year.  And, after rejecting an emergency petition, an additional attempt to expedite the process in the Texas mail-in voting case was rejected. 

Unless an additional miscellaneous order is dropped, more action on Monday. Top link has more details on the orders today.

ETA: Yes, there is more.  Following a theme, though only at times split 5-4, the Supreme Court held another special response to deal with the Big V by the lower courts is inappropriate.  Not quite as bad as with Wisconsin, if this time with no comment by either wing, this blocked efforts to ease voting barriers in Alabama.  To remind, there is actually a Senate run-off coming off where Jeff Sessions is the "moderate" choice.  Also, this is the 11CA, not exactly a liberal leaning circuit.

Respondents filed suit to challenge Alabama election provisions that, because of state social distancing orders and the pandemic, pose severe obstacles to voting: (1) the requirement that voters have their absentee ballot envelope either notarized or signed by two adult witnesses (“witness requirement”); (2) the requirement that a voter mail-in a copy of their photo ID with the absentee ballot application or absentee ballot and (3) the Secretary’s de facto ban on curbside voting (“curbside voting ban”) (collectively, the “challenged provisions”).

This is a summary of the issues at hand from one of the briefs that you can find on the docket page.  Rick Hasen of Election Law Blog recently wrote a NYT op-ed supporting a voting rights amendment, one that would also clearly give the federal government power to protect voting rights.  The result here helps the cause.  One can imagine a Court led by someone with a conservative view on voting rights since the Reagan Administration might still manage to screw things up.  But, it would be harder.

There is a good argument to be made there -- can we somehow find a way to allow territorial residents to have the right to vote for President too? -- though there are already constitutional protections. These have been interpreted in a too limited way (see, e.g., Shelby v. Holder), but the opening is there. New York was allowed to vote for president in the primary because of a First Amendment argument regarding political parties.  Outside of specific amendments, voting is a general "liberty" that cannot be denied without due process and equal protection.  The Guarantee Clause has some importance here too -- a republican form of government includes the people's right to vote.  "Poll taxes" should be interpreted broadly.  The 14A penalty clause regarding even abridging the right to vote was never used.  And, its reference to not applying to criminals should be narrowly applied. 

(This article spells out near the end the proposed Voting Rights Amendment. As an aside, I find the reference to the lack of an apparent reason for the Wisconsin governor to -- fruitlessly given the legislature and state supreme court [as seen by its decision when he tried] -- to wait to the last minute about postponing the election asinine. In fact, it pissed me off.  The cost/benefit analysis might be tough at the end of the day -- maybe, a failed attempt still would have been a bargaining chip -- but damn it Ricky, there was a clear reason why he thought trying would be futile in the end.  Yes, the governor's overall moderate nature factored in.  Cf. a Republican governor in Ohio successfully playing hardball ... late in the day at that.

For instance: "it should protect the right of all U.S. adult citizens to cast a ballot that will be fairly  and  accurately  counted  in  federal,  state,  and  local  elections,  including  the  right to vote directly for President."  This underlines its breadth.  It is unclear that it would go as far as suggesting, including a national federal election commissioner chosen by a supermajority of the House of Representatives. Somewhat relatedly, a new vice president needs to be confirmed by a majority of both houses.  Note too this is a way to partially address the problem of the Senate by giving it less power.  Finally, though it only happened once, the time bomb of a state voting as state in the House in a disputed presidential election is one of those stupidities that need to be addressed.)

Okay.  Well, until Monday?

Primary Update: More Returns and Other Races

The increase of absentee ballots has the possibility to extend  elections and the early primary returns in Kentucky and New York were only preliminary.  Thus, yesterday, we had an official announcement that Amy McGrath won the Democratic "let's beat Moscow Mitch" Primary.  The margin of victory there (an over 40% plurality, which in a place like Georgia would have meant a run-off) was less than the votes from also rans. I'm somewhat concerned about such results and think instant run-off voting would be appropriate in such cases. 

The Kentucky returns led the 270 to Win website to estimate that Biden basically exactly (2376; exact would be 2375.5) has enough delegates to win in the first round even with superdelegates involvement.  Thus, we have another boundary passed though a more "official" count will come when the New York official results are dropped.  As of now, Biden won every delegate in Kentucky except for two, which is labeled at one site as "uncommitted," about 11% of the state as a whole that status.  An instant run-off approach could have helped Sanders some in Kentucky.  

There were three state primaries yesterday (Colorado, Oklahoma and Utah) with an assumed pick-up this fall winning the Democratic primary in Colorado though he has been having some issues of late including an ethics charge. Oklahoma passed a measure of special note: "At least 200,000 Oklahoman adults will be newly eligible for Medicaid, but program enrollment may climb even higher as the state's unemployment rate has surged to nearly 13 percent." OTOH, the eighty-five year old troll in the Senate is likely to comfortably win in November. 

While the other stuff is happening, third parties have also been picking their candidates.  In 2000 and 2016, third parties were of special concern.  This time around, there appears less of a chance, and a non-entity (sorry) winning the Libertarian Party nomination (Green has yet to be picked) is perhaps telling.  Who is to know -- some state very well might be so close that it will turn on these people.  As seen here, there actually are a range of third party options in various states and (is this is thing?) Rocky De La Fuente has been nominated for three of them. He is a perennial candidate and sort of a familiar fill in the blank sort there.

There are multiple primaries in a week span in early to mid-July and I will do a wrap-up after the last (Puerto Rico, Democratic) is over. And, we have some time to go before the New York votes all will be counted -- talking at least next week.