The first Monday of October is around ten days away and around now the justices are getting prepared to have a "long conference" to deal with lingering issues. This time a special thing overshadows all, as with her bestie Scalia, particularly because of partisan battles. The last death on the bench that went smoothly was Rehnquist, with Roberts easily slipping in.
Of course, the thing that dominates the week that overlaps this entry is RBG's death. I have commented about it and won't dwell too much on the issues here. The events includes lying in state, which one female rabbi noted on Twitter is okay -- Jewish law is flexible enough for her to get the same honors of other great public figures. We can also assume that even if she did respect Jewish traditions, she was liberal enough there to work that in. (Sighs deeply.)
Obama, for whatever reason, waited like a month to nominate Garland, in part because he wanted to do things right and figured McConnell would likely block the guy anyway. Trump and the Republicans have a quicker timetable to address, plus control the process as a whole. So, basically, the idea is to wait until the funeral is over or some such. As expected, leaked on Friday, Judge Amy "Obama shouldn't pick someone who shifts the Court" (2016) Coney-Barrett was nominated. She leaves a lot to be desired, if we had to have someone, I rather her than Kavanaugh? Now? It's just bullshit, especially with Trump finding it a problem even to say he would accept the results of the election.
One liberal Dem did not wait to offer a statutory term limit bill, the rules not applying to current justices, but otherwise (a big caveat) seems workable for argument. The idea the powers that be would actually allow it is much less unclear. My reading of Art. III also suggests forced retirement (the number is kept at nine withe a nomination in the first and third year, so the most senior has to retire ... a clock is set so the Senate cannot simply filibuster) is of dubious constitutionality. Some have tried to argue it is not, but unclear again if it is clear enough that it will pass muster.
The bill does help advance the conversation of a measure that very well might get some sort of bipartisan or cross-ideological support, even if a seemingly longshot amendment is required. Once an amendment actually is passed Congress, one wonders if there will be some push for more. A major one would be the ERA, which three more states allegedly ratified. Biden supports some sort of campaign amendment, as I recall. etc. Will the next few years bring forth major constitutional change?
One thing cited is that the current Supreme Court leans Roman Catholic with six of eight justices (or whatever) either Catholic or conservative Catholic-like Christians. In that mix are conservatives and Sotomayor, who is a sort of secular lapsed liberal Catholic. Note how they aren't even diverse in the sense of Catholics. Meanwhile, Bill Barr received an award from the National Catholic Prayer Breakfast, whose founders included the likes of Rick Santorum and Leonard "Federalist Society" Leo. This award for his "Christ-like" behavior came in between two executions.
I have not "deep dived" the executions this year as I did one year, but the now seventh federal executions generally each had issues. Raising my hackles again, we had two no comment orders rejecting final appeals, an execution not deemed worth comment by one justice. The first relied on the defendant's lead lawyer not being able to show up because of COVID, a theme (including family members of victims or religious assistants) of various case. No justice -- even when they flagged other issues -- commented on that issue. The personal reason was the ironic fact the family of the murderer also lost a son to a murderer, that one getting prison.
The second relied on dispute over what the federal statutory death penalty rule required, here arising since Texas (!) requires more time between the death order and the execution. A possible reason would be that the person was only nineteen, some evidence being present that those under 21 at least should not be exercised. Conservatives not liking the 18 line, I can see this being a lost cause. OTOH, the conservatives (RBG and Sotomayor flagged their concern) don't want to deal with this issue either.
I find this rather outrageous -- other than Timothy McVeigh, two people were executed by the feds in the modern era (post-1976) and there has been clear dispute in the lower courts on the rules here. There should be clarity BEFORE you execute (so far; no one else is scheduled, but who knows) seven people. Yes, this one was heinous -- though the justice of executing the guy after twenty years is unclear to me -- but the ones that will get a death sentence often are. Basic fairness is clarifying a basic procedural matter, even if I'm sure the result will not be pleasing with this Court.
Wonder how Charles L. Black would feel about trusting the courts with his human rights effort today. Over twenty years ago, toward the end of his life, he wrote A New Birth of Freedom, which rests a system of national human rights on the Declaration of Independence, the Ninth Amendment and the Privileges or Immunities Clause. He is not a fan of substantive due process, including because it encourages people to be wary about an open-ended rights process [unclear if the people who are would care who one does it]. He includes a chapter on the importance of affirmative rights like fighting poverty, noting something like that is more a legislative function.
I re-read the book this week -- perhaps well timed -- and find it fairly well argued (if a bit rambling at times) though the guy was writing in the 1990s. The courts were already somewhat conservative, including the Supreme Court, which you'd think he at least flag as a possible problem. I think the overall argument is sound on a basic level. Substantive due process assumes an overall "liberty," which the three sources provide a useful source. He also provides basic ways to reason out things via a common law mention, notes the limits of majoritarianism and defends judicial review. Of special note there is the people and Congress (since the Judiciary Act of 1789) support it.
I still think it a bit blithe to focus so much on the "pursuit of happiness" as he winds up doing near the end. I think there is a variety of ways to get there and Douglas' approach in Griswold, substantive due process etc. all provide some value. And, he notes that rights are not absolute. That should go to the idea of federal judicial review. How to break that down is uncler, but maybe we will hear about it in the years ahead.
Of course, the thing that dominates the week that overlaps this entry is RBG's death. I have commented about it and won't dwell too much on the issues here. The events includes lying in state, which one female rabbi noted on Twitter is okay -- Jewish law is flexible enough for her to get the same honors of other great public figures. We can also assume that even if she did respect Jewish traditions, she was liberal enough there to work that in. (Sighs deeply.)
Obama, for whatever reason, waited like a month to nominate Garland, in part because he wanted to do things right and figured McConnell would likely block the guy anyway. Trump and the Republicans have a quicker timetable to address, plus control the process as a whole. So, basically, the idea is to wait until the funeral is over or some such. As expected, leaked on Friday, Judge Amy "Obama shouldn't pick someone who shifts the Court" (2016) Coney-Barrett was nominated. She leaves a lot to be desired, if we had to have someone, I rather her than Kavanaugh? Now? It's just bullshit, especially with Trump finding it a problem even to say he would accept the results of the election.
One liberal Dem did not wait to offer a statutory term limit bill, the rules not applying to current justices, but otherwise (a big caveat) seems workable for argument. The idea the powers that be would actually allow it is much less unclear. My reading of Art. III also suggests forced retirement (the number is kept at nine withe a nomination in the first and third year, so the most senior has to retire ... a clock is set so the Senate cannot simply filibuster) is of dubious constitutionality. Some have tried to argue it is not, but unclear again if it is clear enough that it will pass muster.
The bill does help advance the conversation of a measure that very well might get some sort of bipartisan or cross-ideological support, even if a seemingly longshot amendment is required. Once an amendment actually is passed Congress, one wonders if there will be some push for more. A major one would be the ERA, which three more states allegedly ratified. Biden supports some sort of campaign amendment, as I recall. etc. Will the next few years bring forth major constitutional change?
One thing cited is that the current Supreme Court leans Roman Catholic with six of eight justices (or whatever) either Catholic or conservative Catholic-like Christians. In that mix are conservatives and Sotomayor, who is a sort of secular lapsed liberal Catholic. Note how they aren't even diverse in the sense of Catholics. Meanwhile, Bill Barr received an award from the National Catholic Prayer Breakfast, whose founders included the likes of Rick Santorum and Leonard "Federalist Society" Leo. This award for his "Christ-like" behavior came in between two executions.
I have not "deep dived" the executions this year as I did one year, but the now seventh federal executions generally each had issues. Raising my hackles again, we had two no comment orders rejecting final appeals, an execution not deemed worth comment by one justice. The first relied on the defendant's lead lawyer not being able to show up because of COVID, a theme (including family members of victims or religious assistants) of various case. No justice -- even when they flagged other issues -- commented on that issue. The personal reason was the ironic fact the family of the murderer also lost a son to a murderer, that one getting prison.
The second relied on dispute over what the federal statutory death penalty rule required, here arising since Texas (!) requires more time between the death order and the execution. A possible reason would be that the person was only nineteen, some evidence being present that those under 21 at least should not be exercised. Conservatives not liking the 18 line, I can see this being a lost cause. OTOH, the conservatives (RBG and Sotomayor flagged their concern) don't want to deal with this issue either.
I find this rather outrageous -- other than Timothy McVeigh, two people were executed by the feds in the modern era (post-1976) and there has been clear dispute in the lower courts on the rules here. There should be clarity BEFORE you execute (so far; no one else is scheduled, but who knows) seven people. Yes, this one was heinous -- though the justice of executing the guy after twenty years is unclear to me -- but the ones that will get a death sentence often are. Basic fairness is clarifying a basic procedural matter, even if I'm sure the result will not be pleasing with this Court.
Wonder how Charles L. Black would feel about trusting the courts with his human rights effort today. Over twenty years ago, toward the end of his life, he wrote A New Birth of Freedom, which rests a system of national human rights on the Declaration of Independence, the Ninth Amendment and the Privileges or Immunities Clause. He is not a fan of substantive due process, including because it encourages people to be wary about an open-ended rights process [unclear if the people who are would care who one does it]. He includes a chapter on the importance of affirmative rights like fighting poverty, noting something like that is more a legislative function.
I re-read the book this week -- perhaps well timed -- and find it fairly well argued (if a bit rambling at times) though the guy was writing in the 1990s. The courts were already somewhat conservative, including the Supreme Court, which you'd think he at least flag as a possible problem. I think the overall argument is sound on a basic level. Substantive due process assumes an overall "liberty," which the three sources provide a useful source. He also provides basic ways to reason out things via a common law mention, notes the limits of majoritarianism and defends judicial review. Of special note there is the people and Congress (since the Judiciary Act of 1789) support it.
I still think it a bit blithe to focus so much on the "pursuit of happiness" as he winds up doing near the end. I think there is a variety of ways to get there and Douglas' approach in Griswold, substantive due process etc. all provide some value. And, he notes that rights are not absolute. That should go to the idea of federal judicial review. How to break that down is uncler, but maybe we will hear about it in the years ahead.
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