Scarsdale Creche (with some old case citations)

Those in the know had some fun over the years regarding holiday display cases though only a few were specifically decided by the Supreme Court in the 1980s and 1990s.  Lynch v. Donnelly started things along with "context" only becoming more important over time.  Somewhat related cases involving how far the government had to allow religious groups and speech as part of a wide whole also were part of the mix. 

The charm there was to find displays that were part of some wider holiday message, so people made fun of some sort of "two reindeer rule."  There also were at least two types -- some locality sponsored a display, or didn't want to, and got in trouble for selectively trying to separate church and state in that fashion (or avoid controversy). 

The next generation of cases involved Ten Commandments and crosses.  The latest -- in 2019 -- yet again splintered the Court, but context factored into the plurality (by Alito) too, symbols around a while and with mixed messages especially factoring in.  Alito doesn't seem like someone who would craft some sort of middle path but he does have a pragmatic side to advance his ends.  

The Scarsdale creche case split the Court with Powell not taking part; it eventually settled the question with some new membership in the mid-1990s.  The district court in the Scarsdale case (pre-Lynch) held that a freestanding creche on public land took meaning from the land -- it was in some sense reasonably taken as "public."  And, being a religious symbol, this was an illegitimate advancement of religion (later we might say "endorsement").  Some sort of disclaimer sign would not solve things. 

So, the village could deny the right of a private group to place it there, even if it did allow other stuff like Girl Scouts related activity.  And, that is what it did -- the two courts (intervening law leading the appellate court to reverse) spelling out the decades long growing controversy.  As early as 1960, the American Jewish Congress writing a letter deeming a creche on public land as violating the principle of church and state.  And, a lower court even before that -- in the 1950s -- rejected such a request. 

Justice Brennan -- who years later dissented when a display with a creche was upheld -- flagged holiday displays as an issue in FN74 of his opus concurrence in the bible reading case.  The Scarsdale opinions (Supreme Court evenly divided so had none) provides a few previous display cases to get you started here. Follow the links and you can find various opinions with various nuances and results.  One back in 1971 involved a Christmas pageant for which a creche was singled out.  A lighted cross crossed (natch) the line in 1981.  But, not a religious statue back in the 1950s.  Interesting proviso might have been from the 2019 case:

The only restriction against the City is that it cannot discriminate. That any statue or monument might incidentally have some religious significance cannot be held violative of the constitutional prohibitions, unless it was designed and used as a public shrine or place of worship, or for the propagation of a religious belief; or was intended to hold some other religious group in public contempt and ridicule; or designed to cause religious strife and antagonisms.

One district court rejected a challenge of a Christmas postal stamp in a verbose decision that argued that federal courts using judicial review too broadly to strike down other branches even threatened the right of the people to govern themselves (republican form of government).  But, it decided in the end to go the the merits, though after some more verbiage (including how oaths, chaplains etc. show the government's contact with religion is diverse), it basically said the challenge was stupid ("remote and far-fetched as to be entitled to but scant consideration").  This was in 1967.

I think the Scarsdale district court has some bite.  The people of Scarsdale through their representatives determined that a creche on public land would in some basic way be a public endorsement.  It was not like the a Red Cross display or something.  A back-up argument made (emphasized in the Supreme Court oral argument) was that the display was a controversial message and a freestanding display of that sort could be blocked.  A person speaking in that respect was not the same thing as a display just there. That's perhaps dubious.  But, the First Amendment singles out concern for religious establishments.  

(Justice Stevens dissent in the 1990s case would leave open the power of the government to exclude certain controversial speech, something reflected in his opinions over the years, including his dissent in the flag burning cases. Displays left unattended very well has some implication that the government endorses the message -- the examples cited in the cases are generally of that caliber. But, religious displays would be easier.  Another might be something like hateful ones like a Confederate symbol that might raise other constitutional concerns.) 

The district court noted that it was this type of display that caused concerns.  And, some sort of disclaimer would often not be seen while one passed by and there would be continual dispute on whether it was big enough etc.  It would be a continual dispute that would result in religious entanglements.  And, the community was not required to keep all displays from the village square, including thermometers for some Red Cross drive or arts and crafts stuff.  (This came up again in the 1990s case and the median position went the other way -- disclaimer etc. acceptable). 

Plus, there was likely only a limited number of religious displays, some religions actively opposed.  This results in likely favoritism. On the other hand, the village still allowed various public displays of religious activity that did not cause similar controversy.  Religious groups had meetings in parks.  Carolers sang.  There were invocations [at some point, problematic in my view; but put that aside].  These were personal expressions as a whole; again, the invocations would be to me a separate issue.

But, a continual presence of a creche on public land in context was a bridge too far. This in part was because the whole point was a concern to have a stronger religious symbol that in some fashion had a public imprimatur.  To "keep Christ in Christmas" (see Lynch) one might say.  The line there very well might be tricky, but lines always have to be drawn.  A symbolic representation of a sacred event can reasonably be treated differently than a tree or Christmas lights. Others disagree, especially if it is part of a wider display.  A diverse society warrants such concerns. 

Context and specifics. The court of appeals again [continuing this post] overturned the district court, noting an intervening Supreme Court case, if one the advocate tried to distinguish (his oral argument time per Oyez.com was mostly spent trying to argue that public forum law did not establish a right to have freestanding controversial displays).  He spoke of a creche standing alone and how in that case the local government actually supported the display.  Here there was public opposition.   

A later Supreme Court opinion split the justices various ways but a creche standing alone was deemed a bridge too far in that opinion out of Allegheny.  As, here, the fact that there were other expressions (to quote the appeals court here) of "the Christmas Holiday season" such as a tree was not determinate.  A specific "passive" symbol as noted above can be different than specific events tied to a person or bland references like "Merry Christmas."  "In God We Trust" is not the same as "Our Father."   It is not all/nothing.  The opinion followed this approach up to a point (display not permanent etc.) but reasonable minds can disagree if they did so enough.  Why not give the tie to the locality unless otherwise warranted by bias or some such? 

And, the appeals court disagreed in degree about the sign: it felt it would be important to disclaim endorsement but that "size, visibility and message of an appropriate disclaimer sign or signs" should be addressed.  It was concerned about how children understood the display, but argued there isn't enough evidence to find that too worrisome.   So, overall, it is somewhat unclear if precedent alone determined the result here.    

Over the years, I have been somewhat more accepting of the acceptance of these symbols on public property and in displays expressly supported by the government.  But, I continue to think these disputes are helpful to understand and respect wider principles.  The opinion referenced "Christmas hymns and carols," for instance -- well, they are mixed. We do allow Rudolph and Silent Night.  Just goes to the diversity.  

And, though "Christmas lobsters" (Love Actually) might seem silly, the best approach there is diverse; not just Christmas.  The creche there seems more singular to me though if it is truly part of a wider holiday display, it would be a lot better.  [I also covered this case four years ago here.]

Your NFC Least Leading Giants (At this time)

Giants, who played good enough to win versus bad competition (once getting the benefit of a team that went for the win and were stopped), lead the division given tiebreaker. Bengals had a shot to go ahead late but "were the Bengals." Giants actually had a shot to win versus Tampa that one time. Get to the playoffs, who knows; they might win one.

Jets were the Jets, not even taking the opportunties given to them. Missing a short FG near the end of the First Half included. 0-11; still think they will manage a win somehow. Bills scored enough points to win. Pats won close one so their wild card chances are still alive. ETA: Giants QB status up in air; possible "quarantine QB" signed.

Holiday Display Post

For a long time now, I have read (and now listened to) holiday related Supreme Court cases during the Christmas season.  Some time back, it required a trip to the library to obtain easy access to opinions like the classic County of Allegheny creche/menorah/tree case.  Now, it is easily obtainable, including lower court opinions (there being a lot) that go back at least to the 1970s.  

[Since I'm a nerd and all, this was edited, and I will later on provide at least one more post, after doing some following of links related to a 1980s display case.  The lower court opinions are to me rather interesting.]   

See here for one extended discussion by me. I need not repeat myself too much.  As I said there, Justice White had an interesting take on things -- in an early case involving Missouri (later popping up in the Trinity Lutheran case) wanting to uphold a strict separation even as to religious organizations on college campus (rejected with him alone dissenting), White said he would allow discretion in both directions. 

He flagged something that actually came up years later -- religious groups that blatantly sought to use schools etc. for church services.  OTOH, his drawing the line at "worship" in that case suggests his way does not quite settle what happens when the government allows freestanding displays, but wishes not to allow a freestanding (no person there) creche or something.  I would allow the state to at least decide to do that, which was not how the Supreme Court wound up handling things. 

But, check that earlier entry for a wider discussion.  The proper dividing line -- as seen in the recent case on Thanksgiving -- when regulating things that touch up religious exercise again is in dispute. Before, the common approach was to treat it as a free speech matter.  If you open up a "forum" for something, you could not treat religious groups differently, even if it involves collecting money for a club that puts out a proselytizing publication.  At some point, I found that artificial.  

[Religion is singled out in the First Amendment. In two directions. Religion can be part of other provisions, but to cite the Bible and Dickens as both forms of expression is a tad simplistic. So, yes, if a  public school decides religious instruction of seven year olds in after school programs are a bit different from secular programs, it very well might be okay to do so.]

Religion makes things more complicated.  But, these days it is straight out concerns about free exercise, including pushing for special dispensations.  Again, religion has complexities ... up to a point. A public accommodation can be required to follow civil rights laws, even if the owner has a religious motive not to serve black people.  I'm starting to respect more the dissenting opinion in the Sherbert v. Verner, which argued the government can allow a religious exemption to work requirements when handing out unemployment insurance, but it isn't somehow constitutionally mandated.  At the very least, the individualized benefit there is logically treated different. See also, Oregon v. Smith.  

Statutory exemptions as well as civil rights laws are prime ways free exercise of religion is promoted. In this country, however, there is a great belief that there is also a range of constitutional liberty that is protected by the courts above and beyond that.  Free exercise of belief, a hands off policy for religious organizations and making sure laws are generally applicable (a term that pops up in the Amish case in the 1970s, Wisconsin v. Yoder) are three basic ways it is upheld.  

A fourth is something we take for granted -- people freely get to express their religion in a myriad of ways without it be targeted not only selectively (discrimination) but in a more general way.  France has a more strict policy of secularization and we can imagine merely wearing religious apparel or a small cross while in a public job would be deemed inappropriate.  General applicable laws very well might somehow include that sort of thing, again if civil or criminal law is a general approach toward regimental program or something.  But, as seen in the first set of Supreme Court cases in the "modern era" involving Jehovah Witness proselyting in public, the restrictions often are selective in form or effect.  Overall, in lots of ways, religion is not at risk to be taken from the public square though that is repeatedly (up to the current day) a straw-man offered. 

The trick comes when neutral regulations of religious acts are involved, particularly religious acts that cannot be framed as speech or association.  At least on the Supreme Court level, the one case where this popped up in which the justices allowed a special dispensation involved letting the Amish take their children out of school after the eighth grade, not at sixteen.  The case involved only seven justices, two vacancies being handled, and Douglas worried that the wishes of all of the children were not being confirmed.  Three other justices were wary but figured the exemption was minor (basically two years of schooling) and the Amish case strong. 

The majority opinion tossed in various details including the long time existence of the Amish and the fact that traditionally children work on farms (major reason for compulsory education to avoid child labor) anyway.  There was enough hedges, including how education and parental involvement there itself factors in [if not quite the "hybrid" right argument used to handwave it in Smith] to make it not enough to settle all questions involving religious based actions that violate generally applicable laws.* 

Plus, the Amish's case was not really as strong as all that -- why couldn't they set up a private vocation school, one a bit more than the three hours a week of ordinary subjects their side while negotiating offered as an alternative.  And, their religion would not be somehow destroyed if the children had to go to two more years of school. Traditionally, the "elementary" education they support was a lot less intense than what even in the early 1970s arose in junior high.  This isn't quite denial of a sacramental drug akin to denial of use of communion wine in a dry county.  

As I noted in the summary referenced earlier, line drawing in these cases often is not exact, but sensible lines still came be made even if they might not be as clean as some would like.  The trickiness suggests that religious exemptions often should be a policy question, which like much policy does not trivialize the importance of the subject.  Plus, as cited above, certain specific areas would go above all that. General employment laws does not make hiring only male priests an actionable civil rights violation.  That very well can mean unfair treatment.  But, even there, basic employment rules for church employees can be set forth.  Safety laws deemed ungodly can be enforced.

Anyway, with the Barrett Court, I look for a case to be taken to clarify religious displays, and not just longstanding ones.  The status of a newly established holiday display very well might be clarified at some point.  I still find the separatist approach sound, even if only Sotomayor is left that might hold true with Breyer and Kagan going along at times as seen in Town of Greece invocation case. Let's see how much of a mess develops.

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* I am sympathetic to the dissent in the peyote case, especially taking everything into consideration.  Religious practice very well includes acts that sometimes might be regulated in some fashion and religious liberty respects that we do not officially wrongly favor some in the process. 

Given the range of religions, this can be very tricky if honestly and consistently done.  Problem is that this often s not done, including by those who proclaim RELIGIOUS LIBERTY AT RISK. A good approach in these cases is to try to avoid a major decision, a sort of in between approach. Not reach out like the Supreme Court did (then and now).  This very well, to be honest about it, probably includes some things that I rather not authorize.  Or, at least, as I have said, recognize there are degrees. "In God We Trust" very well is problematic.  But, it isn't the same as crafting a full prayer.

The state court treated Oregon v. Smith as an unemployment benefit case and that is really what it was.  Oregon did not enforce its peyote laws.  The general applicable law very well made it sensible to give the state some more discretion, but taking everything into consideration, including the fact that a core religious function (sacrament) was at stake, the result was easier than Yoder.  And, RFRA (and more?) was the (over)reaction.

Cannery Row

I have a few books waiting for me at the library, including a non-fiction one by John Steinbeck growing from his travels with the guy that inspired "Doc" in Cannery Row and its sequel Sweet Tuesday.  Read at least the first one years back, maybe connected to watching the film.  Tortilla Flat, based on earlier novel, was television some weeks back.  I checked out novel and soon grew tired of the "lovable losers" that the book were about. Cannery Row has a gang of them (led by Mack), but only as part of the mix. 

My copy looked like it was from the 1945, a small cheap looking fragile thing and earlier on its one hundred and thirty or so pages was fairly easy going, but seemed to take me a while to read. Like there was enough for a vignette, but reading the book (with shades of color and character bits that reminded a bit of Justice William Douglas' writings about nature and people he knew, but then there were sorta of the same era and locale -- Douglas growing up in Washington State, this taking place in California) would be a bit much.  Still, the second half went down fairly well. 

The whole book had a somewhat bittersweet feel to it (Roger Ebert says the film was rather fake and the characters come off as too saccharine, but don't recall it much)  though the author has respect for its characters.  The frog hunt was a well done vignette, including Mack (logically played by M. Emmet Walsh in the film, though Ebert doesn't even reference one of his favorite character actors) laying on the charm/con when the gang (shades of an older Bowery Boys -- the first novel takes place in the 1930s) meets up with a local with his dog.  Then, there were a few rather dark moments, including a boy being taunted to talk about his father's suicide.  Think it could make a could limited series. 

Just started to read the second, longer novel and wonder if it will be too much -- the book might not really be double the length of the first, since it is a more sturdy copy with bigger font. The sequel explains the name of the new madam (Ebert, not liking the movie much, did his thing where he takes potshots like "She goes to work in the local cathouse, where the madam is named Fauna, maybe because Flora was already taken."  If he likes a movie better, he lets that stuff go more often.)   In the movie, the actress that played Mrs. Roper plays the madam, another bit of casting that fits one's mental image of the character.  

(Got tired of the book -- doesn't look like I will read most of the sequel, which is longer with more vignettes.) 

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The leads in the Hallmark film Christmas by Starlight (a pun on a cafe which plays a role) recently were also in Wedding Every Weekend, which I liked better.  Both tossed in some gay friendly stuff, the first having an assistant being a gay married (his husband pops up) and the second including a lesbian wedding.  Both leads were in other Hallmark fare (e.g., she pops up in the Nine Lives of Christmas, which is aired repeatedly over the years), but Paul Campbell in particular pops up repeatedly.  

Those familiar (like me) probably amused his future father-in-law (not a fan, at first) in Surprised by Love now played his father, if a similar sort of character.  The film itself had shades of Two Weeks Notice (itself pleasant enough though Alicia Witt was kinda too nice as the alternative love interest*), where a liberal minded lawyer winds up counseling a rich boy business person who she would naturally scorn, but soon becoming quite good at it.  Here a liberal minded lawyer works as a sort of temporary babysitter/advisor of the Paul Campbell character, who is not taking his job at his dad's firm seriously enough.  The firm plans to seize the family business as part of a business deal and he promises to help if she pretends to be his watcher. 

But, it's Paul Campbell -- he always plays a down to earth reliable sort (deep down), and his true nature comes out soon enough.  So, when complications seem to be ready to come out (and not very smoothly) with over a half hour left it, I turned it off.  It was pleasant enough but didn't quite have enough content to fill two hours.  At least, with so many of these films and all, there has to be a certain mix for it to be enjoyable.   Their last film had more story and the multiple weddings to ease things along.  

Nice they tossed in the gay couple. The Kristen Stewart film also had an interracial couple. 

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 * The movie, like various light-hearted fare  over the years, has a reference (here a cameo) to Trump.  From now on, each time that comes up, including Chandler and Monica's Trump sighting in a charming episode where them both seeing him helps Joey figure out they are a couple, it leaves a bad taste in my mouth. 

Trump Court Arrives (and Mike Flynn)

My Thanksgiving dinner went decent enough though the political talk was depressing. We had the older Fox News person (though even that person accepted it was over and thought Trump should concede), potshots at AOC, someone laughing at some woman being so tearful after Trump won the first time, people not voting (or taking part in the census) etc.  And, this from people who on balance are reasonable on various issues.  Up to a point.  The person who staid silent did do the census.  

Let's move back to much earlier in the day.  Not for the first time, my belief that nothing more would come from the Supreme Court was premature. After announcing they would follow protocols and so on, will have another telephonic session in January, well, it's worth quoting at length:

The Supreme Court will hear all oral arguments scheduled for the January session by telephone conference, following the same format used for the previous teleconference arguments. In keeping with public health guidance in response to COVID-19, the Justices and counsel will all participate remotely. The Court building remains open for official business only and closed to the public until further notice. The Court will continue to closely monitor public health guidance in determining plans for the February argument session.

That was in the morning (or early afternoon).  Twelve hours later -- note the ridiculous post time of this summary -- Super Spreader Barrett was the deciding vote in her first case, one that couldn't be more fitting (her first vote in a substantive order, probably -- since only the liberals voted on record, which again to me is stupid and silence should imply consent -- to uphold an execution also is a tad appropriate given her co-writing an article about Catholic judges perhaps having trouble in such cases).  

I woke up in the middle of the night and checked Twitter as one does before dozing back off and saw the news, summarized at SCOTUSBlog as "Justices lift New York’s COVID-related attendance limits on worship services."  The opinion was basically advisory (see below) and in that fashion it truly was as much as a decision as a symbol of the future, including from some analysis if you parse its language.  It was unsigned though Gorsuch and Kavanaugh, one preachy/the other "look! I'm reasonable," showing their different styles.  Chance the third Trump pick wrote the per curiam.  

[An additional thing -- the opinion notes that the request for relief was sent to Justice Breyer, who was assigned the 2nd Circuit -- the matter arising in Brooklyn -- after RBG died.  This just adds to the fitting nature of the whole affair since the new membership was key to the result. Again, Sotomayor now has the 2nd Circuit.  Sonia from the Bronx did good.]

Roberts followed his trend of not wanting to intervene in any COVID-related case and dissented.  He noted that the rule seemed extreme, but it wasn't even really being applied since the changing nature of outbreaks (a basic reason he wants to have a hands off approach) made that matter moot for the people involved.  Breyer and Sotomayor (more strongly ... Kagan again joining) argued it was reasonable.  Roberts wouldn't go that far but was annoyed Gorsuch did a Gorsuch and ranted about how unreasonable* the other side was being, including himself actually.  

Sotomayor throwing the Muslim ban case back on the majority that suddenly is concerned about religious liberty was a nice touch.  The reference in the opinion about constitutional rights being around in these times wasn't as much a concern when prison conditions, voting rights or federal executions were involved either.  The gratuitous ruling, dropped late in the evening the day before Thanksgiving (why not at least flag the result at a more sane hour and then drop the reasoning later?), was not only bothersome given Amy Coney Barrett (thanks to Senate more concerned about the courts than our health) but thinking about how city schools were closed for Big V concerns.  

One can disagree with the policy here, but that still doesn't make the result much easier to take for a variety of reasons.  Dated Thanksgiving, we then had the POPE dropping a COVID related op-ed that included this bit:

With some exceptions, governments have made great efforts to put the well-being of their people first, acting decisively to protect health and to save lives. The exceptions have been some governments that shrugged off the painful evidence of mounting deaths, with inevitable, grievous consequences. But most governments acted responsibly, imposing strict measures to contain the outbreak.

Yet some groups protested, refusing to keep their distance, marching against travel restrictions — as if measures that governments must impose for the good of their people constitute some kind of political assault on autonomy or personal freedom! Looking to the common good is much more than the sum of what is good for individuals. It means having a regard for all citizens and seeking to respond effectively to the needs of the least fortunate.

Note that the opinion and votes also applied to a Jewish religious services related case.  Anyway, I was truly pissed at this ruling, in part out of rage and feeling of hopelessness (often a combo) related to the Supreme Court pick. We will have years of this and dreams of court expansion -- which always was something that I was pessimistic about -- no longer very realistic.  The best you can hope for is 50-50 and  Biden's judicial picks getting a decent hearing.  And, this is a hope, even though BOTH Georgia senators have been caught in inside trading like allegations.  Putting aside their other issues.  

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In far from surprising, but still also anger inducing news, Trump pardoned Michael Flynn.  This whole clusterf to me was a basic symbol of where were are.  This guy was supposed to be Trump's national security advisor but then Trump fired him (this is almost four years ago) and then had a plea deal with Robert Mueller.  And, from all that I can tell, he was likely to get at most a few months in prison. But, then he got a new wingnut lawyer and took it back. And, the damn thing dragged on and on. THEN, the Justice Department got involved, going so far, that it pissed off the judge. And, THAT was a long dragged out affair that was not over yet.  

The whole thing has so many moving parts that it boggles the mind, including just how bad Flynn's actions are, how the Justice Department eventually basically broke the sanctity of the independence of the Mueller investigation and so on.  Here's the official statement, which again is on the White House page (this was a theme before), not just some Fox News rant.  But, on some level, given pardons can be idiosyncratic affairs, it is better than abusing the Justice Department for the guy.  

We already had Roger Stone being pardoned.  Trump basically got away with his involvement in 2016 election skullduggery, including obstruction of justice arising from it.  This really bothers me on a basic level.  Susan Hennessey on Twitter strongly criticized the pardon here, but then went on an "on the other hand" run that pissed me off.  For instance, she said the election "cured" the problems in the Justice Department.  Did it now?  The department will be tainted for years, including more ammo for people basically cynically nihilistic about the government overall. 

This is from someone who supported impeachment.  Did the election "cure" that too?  Elections are for policy differences, basically, though we are talking some serious things here too (and not just those, yes).  But, impeachment etc. requires more than that.  They involve a special violation of norms and basic principles of how the government should be run that should not be up for a vote, with each side on some level deemed legitimate, if one side having a better case.  And, she basically watered down both his crimes and Flynn's failure to support the investigation (as part of the original plea deal).  Shades of Marty Lederman earlier handwaving the need to prosecute, you know, this isn't some drug case where we need to worry about that as long as the principle was upheld. 

 (Looking at the specifics, the pardon looks rather broad.) 

Is it January 20th yet?  

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* Roberts:  To be clear, I do not regard my dissenting colleagues as “cutting the Constitution loose during a pandemic,” yielding to  “a  particular  judicial  impulse  to  stay  out  of  the  way  in times of crisis,” or “shelter[ing] in place when the Constitution is under attack.” Ante, at 3, 5–6 (opinion of GORSUCH, J.).   They  simply  view  the  matter  differently  after  careful  study and analysis reflecting their best efforts to fulfill their responsibility under the Constitution.

This is one of the times when Roberts comes out on top, looking to be a reasonable sort, but you know dude, got to take the bitter with the sweet if you want to vote with this crew.  The last sentence is one I kept on saying over the years when some conservatives railed about how liberals (or "the Left") make shit up while they are principled types.  I sometimes even say it about conservatives in response to comments by liberals.  Still generally feel that way, but "best efforts" can be dead wrong. 

ETA: I like Mike Dorf and Eric Segall (Love Story was on last night; he isn't the author -- that is Erich Segal) of Dorf on Law and Dorf's wife too (Sherry Colb) though she doesn't blog much these days.  Dorf with his old writing partner (co-wrote a book) has an op-ed on the New York case that overall says things well.  This is well put:

The risk of coronaviral spread is not merely a function of the number of people at a venue; it increases dramatically as they linger in a stationary position, especially when they speak or sing.

So, no, even if you spend a long time at the Shop & Stop on Sundays [as I sometimes did], it isn't the same as a church.  

Also, even if you support the result, it is a bad decision. The basic message is that they had to decide since we simply don't know when the alleged overreaching will apply again. But, that time has not come yet.  Why not have accelerated argument on the question?  I realize that might be harder given the complexities of the time, including the justices sheltered in place.  Still, full argument would give a more respectful, complete hearing to all.  The end result very well still might have been wrong. 

But, better than this. 

Lesbians and Daffy Duck (In Different Things)

I referenced television holiday movies along with a recent attempt to add gay/lesbian (trans yet?) diversity in a comment elsewhere and someone flagged Happiest Season, a Hulu entry that came out for Thanksgiving. It was a romantic comedy (with serious themes) involving a woman taking her girlfriend home to meet the family, letting her know on the way there that she isn't "out" yet. 

The plot interested me as much as the cast and figured it was worth a trial month at Hulu. And, it was pretty good though at times it did have some television movie like vibes. The cast particularly helped papered over some slower spots and it had a good overall message.  Now that I have the month, perhaps I will watch a few other things, getting a little taste of all that extra content that requires paying for some additional platforms. 

Among some free books left outside my local NYPL branch (still not reopened), I saw Daffy For President, an amusing and actually educational book that was given out back in the day to go along with some Bugs Bunny stamps. A few years later, a cartoon version was made, mostly loyal if a bit different. The book might be of some benefit for some of the new crew in Congress and so on. 

ETA: NY Daily News printed a letter of mine referencing the book!

Half Moon Street (and other Odds and Ends)

I never saw this movie (which the hosts liked for the performances not as much as the plot while in my Leonard Maltin guide it was panned) but checked it out in Half Moon Street, which combines two novellas.  The second has another "Doctor" (though it also had another title separately) and "two lives" sort of plot line, if in a shorter and different fashion.  That one was decent enough in its own way.   It was about the right length.

The movie per the review and Wikipedia changes a few things and looks interesting. The book is fairly interesting though even for a short work it probably goes on too long and then tacks on a thriller-like bit and not too surprising twist ending.  The movie has Michael Caine playing a somewhat younger (though if it was filmed later, Caine was still around) version of a character apparently given a somewhat larger role there and the thriller aspect might have been a bit more developed.  In both cases, the character aspects probably are more worthwhile than the thriller ones.  

Mr. Trump exercised his pardon power during a Rose Garden event, granting the turkey named Corn a full pardon. The other turkey, Cob, will live, too.

Whenever the pardon aspect of this stupidity began, this still continues to be ... stupid.  As the less fake President on West Wing noted, they have no power to pardon fowl. At least, as far as I know -- do turkeys have some conceivable liability under federal law that might apply to the pardon power?  These birds did not commit a crime -- the bit is that they won't be used for dinner, but that wasn't some penalty for a federal or state crime.  I am a vegetarian (and ideally a vegan), but even if I was not, talking about pardoning turkeys would be something stupid. Ditto if one wants to look at it from the perspective of the woefully underused pardon power, generally used by Trump for trolling purposes.  

===

After a unremarkable order list, the Supreme Court now released the January argument list along with a notice that they will continue their live telephonic oral arguments.  One reporter also flagged that a case recently granted cert involves an opinion that retired Justice Souter took part in as part of his court of appeals work.  O'Connor did that until she fully retired while I don't think Stevens ever did (he was in his 90s) while I have not seen notice of Justice Kennedy doing so either.  Nice to see him still active. 

===

Happy Thanksgiving, or as I see it, time to start listening to holiday display oral arguments. 

Lower Court Conservative Follies

A 6th Circuit Court of Appeals panel granted today a request from the state of Tennessee, letting part of a law take effect that prohibits abortion based on a patient’s reason, including a potential Down syndrome diagnosis or the sex or race of the fetus.

Online sources provide a continual onslaught that tosses more and more stuff at you, at times providing only an incomplete snapshot.  This is so especially when you "doomscroll"  on Twitter or some place else.  So, some news item requires looking into or only reports something that is not final or whatever.  Or, you have some bad thing, since bad things happen, especially with the current control of various governmental bodies.  This includes a slew of lawsuits, some of which will result in bad results such as a conversion therapy ban that applies to licensed therapists counseling minors being struck down.   

[One thing to note here is that what the ruling underlines is that there will be a continuing triage, these rulings being burdensome, but leaving open some room to pass sane rules and so on.  The challengers argued the law was overbroad.  It does not appear to have been but so it goes.  That leaves open some room for a partial ban even under that ruling. OTOH, even if the case went the other way, the law did not cover unlicensed therapists or information about them.  The law did not mean a church could not counsel someone's child not to be break anti-gay doctrine.]  

One generally sane somewhat libertarian leaning legal person on Twitter summarized it and criticized those who would say this came out of left field (so to speak) or was unreasonable.  That isn't what I saw.  It is quite understandable, including with recent free speech jurisprudence that applies to economic and professional speech.  This is especially the case with the horrible Supreme Court case from a few years back that struck down a reasonable limited disclosure law involving crisis pregnancy clinics while somehow differentiating informed consent rules for family planning clinics.  Breyer angrily flagged the double standard.  

The problem is with the result and that the Supreme Court opened it up as a reasonable (if not compelled) one.  A mix of the qualifiers I referenced above is in place for the lower court abortion ruling that leads off this entry.   Such a "reason" ban was struck down by another lower court some time in the before times but the Supreme Court avoided deciding the issue with Thomas tossing in a well reported concurrence suggesting such a thing is in effect an eugenics ban.  It very well is a sort of bait now that the Supreme Court is 1/3 infected with tainted Trump judges.  

On the merits, it is unconstitutional -- why a person aborts or marries or has friends or various other things is a personal decision, even if the decision might be deemed a bad one.  It is even an ironical matter of inequality -- why those factors?  Why that specific disability?  I am willing to directly face up to the substance of the matter, at any rate, though it might be satisfactory to note things like sex specific abortions just aren't a thing in this country.  Take the race thing too.  What if the reason is the person was raped but they do not specifically want to a child that blatantly doesn't look like them to raise questions? Or, they had an affair and the spouse is willing to forgive, but not again if the child makes it obvious?  

The specific reason the court of appeals left the law in operation during the appeal, however, did not hit to the substance of the law. The parties did raise a substantive claim, but the lower court only ruled on the other one -- a vagueness claim particularly focused on the provider knowingly performing the procedure for those reasons. As the dissent noted here, that claim does sound strong, and is made stronger since doubt here would interfere with professional speech and free patient disclosure.  Go back to the above -- a decision often is made for various reasons.

The majority disagreed without addressing the other claim so the challengers went back to the district court to press that.  If anything, though procedural holdings are often seen as less strenuous. let us say, than substantive ones on the merits so more advisable for judges to rest on (when possible, you do not go with a frontal attack of a democratically passed law), the one here is if anything stronger.  

Planned Parenthood v. Casey protects the choice to have an abortion before viability.  The recent ruling went to how strongly a law burdened that right and Roberts was the deciding vote with a weaker test.  Roberts, however, granted the underlining right even if he might not later.  That is the rub though -- these cases are in effect test cases.  So, avoiding a full frontal attack would be in the interests of the pro-choice side.  

Thus, though the result here is not as strong as both sides understood it to be from some of the comments I saw, the result still is troubling. It is also one of those bits and pieces that will continue to be thrown out at you, interesting but something that one should not try to be overwhelmed by.

Orlando Hall Executed

Update: This has been flagged, so good to cite this on top -- the Supreme Court has updated its circuit assignments as necessary with RBG (second circuit) dying.  Sotomayor took RBG's circuit, leaving open her previous circuits to others and so on.  Barrett got her old circuit. Sotomayor's old circuits might gave her more criminal cases to flag but it's nice she's my circuit justice. 

Also, there were a few other orders, including granting two criminal cases and accepting the House's request to remove the Mueller Report redaction case since they hope Biden will be sane about it. So, guess the next order list will be dull? [Yes.]

Someone flagged an article (attn: Breyer and Sotomayor, the first who includes discussions of the extended times it take to litigate as a major concern and the second in particular who voiced support of litigation to protect due process, including versus claims of abuse from other justices)  he wrote arguing defendants themselves aren't really to blame for back-ending litigation ("There is a widely held belief that, in order to delay executions, American death-row prisoners strategically defer litigation until the eleventh hour.")

Timely, because as the focus was on the post-election b.s., we had another federal execution. Number eight this year.  This is rather notable that since the death penalty's constitutionality was affirmed by the Supreme Court in the mid-1970s (marking the modern era of executions), three federal executions occurred. Three.  Many more were sentenced to death, especially after more grounds were added by federal statute, but through years of some rather conservative presidents (including the Sessions Justice Department), only three were executed. Timothy McVeigh, someone involved in a drug kingpin type crime and some heinous rape/murder involving the military.  That is it.   

The executions are not even for the whole year -- the eight executions, including one late last night (reports of the Supreme Court ruling, without opinions, came out around 11 p.m., which has not been too atypical this year -- multiple after eight p.m. announcements)  came July on.  In the last year of the Trump Administration, the Biden Administration not likely to execute anyone soon.  Been over a hundred years that an execution was performed in a lame duck period (two more are scheduled if one currently on hold; talk of possibly more to be scheduled) too.   

A sound judicial process, even if you think each one of these executions are well warranted with talk about their heinous crimes (see, e.g., the analysis of Orlando Hall, which includes his crimes), would carefully address the issues before authorizing such a influx of executions.  (And, I would not concede each of these are "worst of the worst" though some very well are reasonably so labeled. The upcoming execution of a woman, e.g., seems to involve a mentally ill person.  Others problem cases can be cited.)  If they deemed it necessary, the Supreme Court could have accelerated the process, normal litigation speed perhaps running out the clock to 2021.  I guess they only do that for Trump financials. 

The litigation as usual had a range of issues but there have also been three general concerns. First, the continuing concern that the lethal injection protocol is not secure enough to avoid unconstitutional pain and suffering. Second, specific federal statutory rules the appropriate application of which has split lower court judges so far in various ways.  Third, COVID related concerns regarding both lawyers and people who want to observe the execution.  The one odd case the Supreme Court held up involved a state dispute involving applying rules allowing religious figures in the execution chamber.  

The liberals, at times not all dissenting on the record, continually flagged problems down to last night when all three (notable when Kagan dissents from orders) did so, if without opinion.  This includes in the first wave in July when there was a concern for rushing things along, the lower courts merely asking for accelerated review.  The Supreme Court, again without comment, overruled the lower court stay last night.  Supreme Court Blog summarizes the multiple issues involved.  Better if the Supreme Court did so and explained why all the appeals for federal execution -- the federal government a specific appropriate concern for them -- should be rejected.  

With hundreds of thousands of people dying from COVID and all the rest from Trump, the execution of eight heinous criminals can surely be lost in the field of things. But, this is outrageous, including the Supreme Court (Amy "let me write an article about how Catholic judges can have difficulty with the death penalty" Coney Barrett included) rushing things along, often without comment. I am annoyed that the liberal justices did not discuss their dissent -- and non-dissent on certain matters -- but at least they have consistently flagged the problems from Sotomayor and RBG back in June or whatever wanting to hear a case on the federal statutory rules for executions.  

Two more (though if the ONE case blocked is the one woman, a woman with clear mental health issues, the reason it is being held "based on the denial of meaningful access to clemency and the abandonment by counsel resulting from counsel’s contracting COVID-19," it would not surprise me) ... so far ... left.  Will they execute any in January?  (Yes. Two so far.) 

Robinson Cano Cheats ... No One Really Surprised

After an exciting OT win recently on Sunday night, this time Arizona could not quite come back -- they gave it a ride but was stopped at the Seattle 27 -- on Thursday night. 

But, the big news this week -- if far from shocking -- is that Mets player who already caught cheating was found again. Cano will be out for the whole season (well 162 games) without pay.  Howie Rose, the radio guy, noted this was shameful but first noted the various ways it is positive for the team. 

And, let's be blunt, it is. He had a good offensive year in the short season (wonder why), but really now -- he is likely to be injured and is basically a temporary player/DH now.  The team has more than one person to play the position every day and saving over 20M to use for someone else is a good deal too.  Howie thinks Cano might have played his last game as a Met, the likely thing being a buyout later on.  Sounds about right.

Cespedes was an albatross for years.  Cano was not really that sort of problem, but having his heavy contract for years would be a drag, though in the short term he still gave you something, including respect of younger players (maybe sending a message to them that cheating is wrong is a good thing too) and from what I can tell being a good team guy. 

Well, other than the whole cheating business.

The Queen's Gambit

I don't like e-books, but by accident really obtained a copy of The Queen's Gambit (no wonder it was so cheap) that way.  Don't have a portable e-book device except for my smartphone, which is a bit too small to enjoy reading.  So, used my laptop, which limits reading time some.  It was okay though -- not too long so good to read in small chunks.

It's one of the new "in" series, but it is also based on a 1980s novel by a guy, who also wrote The Hustler and some other stuff. The book is about a girl orphan who becomes a chess wiz while dealing with alcohol and pill addiction among other things. Don't play chess, so all those details really go over my head, but overall I liked the book. It had the easy to read style that appeals to me though at times (like when she had to handle alcohol) could have used a bit more depth. Possible expansion for a series.

SCOTUS: As we wait for more Trump related stuff (including another census case), an order dropped rejecting an appeal involving prison conditions in an elderly unit down in Texas.  Sotomayor dissented (joined by Kagan alone -- notable since she often doesn't join these dissents, at least unless it is a joint liberal effort).  She flagged how the district court's findings should be accepted, there being a strong assumption there, but not doing so has repeatedly occurred in these "shadow docket" situations. 

The court of appeals noted a prison grievance procedure and other technical reasons that Sotomayor rejected.  As usual, I'm wary to try to second guess the technicals though usually relying on her is a safe bet. The original dissent had a few typo like problems so there is a corrected version now. 

Sunday Odds and Ends

Sports: The Jets had a shot at a Monday Night Football win/upset but as usual found a way to lose at the end of the game by three. It would have been a nice moment, if with the back-up, in a bad season. The Giants did manage to win against their usual whipping boys (Daniel Jones won once when not winning against them), Washington.  This was followed by a bye for the Jets and a win -- when it looked like it would be another Fourth Quarter nail-biter -- for the Giants versus the Eagles. Only one game back and with the Eagles still looking bad and the others just bad really, who knows?  

The big news for the Mets is that they have new ownership, and with Sandy Alderson back (apparently having beaten cancer), the GM and various others are gone. The young manager is apparently due to return though his first year was not exactly great.  The new owner hopes for a World Series win in 3-5 years.  To help things along in the short term, helped by the Big V and not playing in 2020 as much as liking the team, Marcus Stroman actually took the 18.5M qualifying offer. The talk I saw was that it was figured he would not, but makes sense he did.  Nice chunk of change but hey it's only for a year and now my money, right? With Thor likely out at the beginning and so on, they still need another arm. 

Book: I was hoping for a bit more out of We the Women: The Unstoppable Mothers of the Equal Rights Amendment though it was okay.  James Madison is the "Father" of the Constitution, so the title is evenhanded though it seemed at times to focus too much on the motherhood aspect in a literal sense. That is, the needs of mothers.  The book is largely historical with the final chapters focused on the last three states that putatively "ratified" (an open question) the ERA.  It has an overall gung ho tone that was somewhat annoying, feeling too that it was aimed at young adults or something.

It does not really go in depth into the full legal consequences, basically hand-waving complicated questions like its effects on abortion rights.  Just what the somewhat differently worded ("abridged" etc.) amendment would add to the Equal Protection Clause remains to be seen.  It basically assumes that it is just to ratify forty years later without re-submission, ignoring (figure it wasn't too late) RBG herself suggested not doing so would be iffy at this point.  This is so even if she did back in the late 1970s, a long time ago, supporting extending the deadline.  Not really deep enough for me though it covers the history generally.  

Election: The results are not going to be fully official for a few weeks, and then we have the electoral college stuff, but things have settled.  Biden/Harris has not only won the necessary Midwest three (Michigan getting the most improvement), but also Arizona and Georgia. Thus, with more popular votes than Clinton as well, we basically have a switcheroo in the Electoral College, Biden likely to get two more official than Trump in 2016 because we won't have a faithless electors issue.  Heck, maybe one or more Trump electors in some other state will want to vote for Biden!  So, that's good.

It is supposedly stupid not to rest on that, but the bother is a result of our side being reasonable sorts. It is bothersome that Trump got more votes than last time and Biden did not do even better. The Trump states were generally not close except for Florida (always a tease) and North Carolina.  There is a chance that North Carolina at least is a possible get in 2024.  The bother really is the Senate though in hindsight talk of 53 votes (I really figured 51 quite possible) was a bit much. We are talking 50 now if we get both seats from Georgia. And, the Dems lost a few of the conservative leaning seats they picked up in 2018. This with Trump's handling of the Big V and everything else. 

Why in the hell shouldn't we be upset? It's a travesty really.  That is what should be the bottom line from objective sane types regarding a party that aids and abets Trump barely being harmed at the polls. They lost a non-elected seat to an astronaut whose wife is popular in the state and in blue Colorado. With Georgia pending in January.  Mark Kelly will come in early to make it 52-48 with Alabama trading Doug Jones with some embarrassment.  So, it will be 51-48 (one Georgia seat running out, the special election seat not) when the new term starts in January, Kamala Harris at some point also resigning and being replaced by a temporary pick too.  The more rabid House caucus is LARGER. FUCK YOU! 

We move on, taking things as they come. Happy Diwali!

SCOTUS Watch: Alito's Tears Edition

Book Review:  First off, a book somewhat related to the general content. The Promises of Liberty: The History and Contemporary Relevance of the Thirteenth Amendment is a collection of entries starting with the ratification (not much on the legislative history), then post-ratification slippage, its application to labor in the early 20th Century (interesting),  various applications (immigration, abortion, racial profiling) and a bit on modern day congressional enforcement. One thing not covered is Confederate flags and the like.  A somewhat mixed bag, but some interesting stuff. 

===

It has not just been a thing when his wing controls, but Alito's latest speech in front of the Federalist Society was the "highlight" of the week here and well criticized.  Senator Whitehouse, whose brief in a 2A case was cited, was part of the "yeah, see that was what I was talking about" brigade here. Saw some critic assuring that he also criticized RBG for her partisan remarks. Fine. But, you know, she's dead. And, replaced by Balcony Judge.

The week started with an Order List that was most notable as one that Judge Barrett (she is consistently called that at the SCOTUS website, not "Coney Barrett") took part in.  This appears to be her first official involvement though maybe some previous action had her taking part, putting aside oral arguments.  Nothing particularly special happened though among the cases not taken is a challenge to "so help me god" in the citizenship oath.  

The big oral argument this week was the latest asinine (with extra stupid) PPACA case, the oral argument including Roberts basically calling out Republicans for wanting the Supreme Court to do their dirty work for them and Kavanaugh flagging he finds the claim bad too.  The debate seems to be how it will lose and maybe what the High Federalists will do (concur in judgment? dissent?).  Again, Roberts ended the King v. Burwell opinion basically saying: "live with it, it's the law and don't expect us to kill it if there is any rational way not to do so."  Do fear they will uphold it with some sort of poison pill that will be a problem in the future.

It is not always done, but often before a Monday Order List there will be a stand alone order regarding taking a case.  This occurred today -- a Taking Clause case involving the right of unions to go to a job site (sounds stupid, but you figure the union will have an uphill battle ... requiring union reps to be allowed on the work place is some sort of "easement" now?).  

The Court is still 1/3 tainted. Alito is like, me too! 

(After writing this, I was perusing the website and noticed this COVID-19 update regarding filing.  Also, now that I have seen the Monday Order List, this is one of the times when a grant or such on Friday flags a boring list.) 

Election Update: Still Tired

[Pennsylvania was called as I wrote this, thus clinching it for Biden/Harris.]  

The results in the local elections were as expected though a quick search did not show the winners of the judicial races. So stupid.  

John Cummings, whose name at least I see around [which is notable; the local city council member papered his name around in a a multi-member race] did not beat AOC. Shocker.  The election over, Alessandra Biaggi (my state senator) can return (per the rules) send email updates about the Big V and so forth. Her BFF, Yuh-Line Niou, Twitter Queen, ran unopposed in the assembly.  BTW, I also received a confirmation online that you did not have to wear a mask to go to the polls in New York. Most did. But, the badmouthing of let's say the governor of Texas should be used by some with a bit of humility.  

We knew that stuff back on Tuesday night.  The networks -- though the Decision Desk called Pennsylvania and the election -- early Friday still have not announced Biden/Harris won.  At 4:20 in the morning, someone tweeted Biden went ahead in Georgia (which would do it if Arizona held up, which it should) and then John Legend sung that Georgia was on his mind.  It looked like shortly after 9AM that the numbers in Pennsylvania were strong enough that it would be called. This basically clarified what was fairly sure on Tuesday and more so by Thursday.

No.  On the front, over 1700 ballots were found in state post offices per a sweep mandated by a federal judge, and he later ordered the same done in various other areas. This might not matter for Biden specifically, but still might in some other race. Plus, there is the basic principle of counting the votes of each citizen here (and non-citizen in cases where they might have the ability to vote for other offices).  We even had a bit of Supreme Court news though the order from Justice Alito didn't really do anything. OTOH, "The legal gambits appear aimed at sowing confusion and uncertainty around the election that at this point appears to be tilting heavily towards former Vice President Joe Biden." (Will update as necessary.)

How about my original depression and so forth? Saw some saying we should not be negative there, should focus on that fact we won.  On that front, at least regarding Biden, I guess there is something to that up to a point.  If the numbers hold, Biden will have not only won a notably bigger (over four million and counting at the moment) popular vote margin, but fittingly the same electoral votes as Trump (really two more given faithless electors).  And, winning Georgia (RIP John Lewis) -- where let us recall he basically clinched the nomination -- and Arizona is no hand-wave.  One rather it not be so damn close and that he would win some place else (toss in the Trump Three, Michigan especially shifting big to Biden), but it the only reason it is a "nail-biter" is the Electoral College in the age of the Big V.

Still, it simply is horrible all the same that so many people have voted for Trump.  The Senate remains the poison pill.  People had big dreams, not just related to the Supreme Court. Without a Democratic Senate, even a major voting rights bill -- which fucking damn it is basic American principle or should be -- will be at most a watered down deal.  Think again about D.C. or Puerto Rico (which actually had a referendum and by a small margin supported it) statehood.  Moscow Mitch (to toss in more news, rumors Putin is ill, maybe Parkinson's, and is being pressured to resign) can still fucking screw with the courts by blocking nominees.  Oh. Amy Coney Barrett was still a major act of illegitimacy.  I sent the liberals (and John Roberts) a letter noting just that.

Where are these 53 senators people talked about? That would allow a hard loss or two -- the hardest to me being Susan Collins. Damn concern trolling Trump supporter, who now Biden et. al. will have to kowtow since she will do the bare minimum like voting for average Cabinet members and the like. Lindsey Graham, a blot on the Senate, winning is hard to take, but one honestly is not surprised. But, so many assured us Collins would lose.  If Georgia (unless Alaska is an upset, which one is best not to rely on, the Senate will turn on two run-offs as the new Congress starts in January) was no lock, was this more 2016 overoptimism?  Some stupid sex thing apparently factored into the North Carolina race, which is basically done, but state results are being delayed.  Plus, it is North Carolina. It's still conservative, if less so than the likes of South Carolina.  

The inability of voters to care about Republicans enabling Trump -- why shouldn't we be depressed at that -- is seen even in the House of Representatives.  This is getting less attention and is understandable to the degree that 2018 pick-ups came from more conservative areas.  So, some representative blamed abolish the police type rhetoric for losses.  The bothersome thing here still is that if anything Republicans there are even more blatantly all in for Trump.  But, though the results are still coming in, it looks like the Dems could lose ten seats or something, resulting in a thinner majority even there.  

But, Biden/Harris did win.  The Senate isn't quite lost just yet.  And, we shall just have to continue to fight.  The "resistance" is not over, but then, John Lewis told us that, didn't he?  One more thing. The nerdy Steve Kornacki, the numbers guy on MSNBC, is beloved by many.  He sort of annoys me, parsing numbers as we waited for the damn thing etc.  But, I get the love.  And, yeah, just found out -- he came out years ago -- he is gay.  Guess my "gaydar" is questionable.

Thus, see opening comment, we reach the end of the beginning. Or something. Total results not in and then it's on to Georgia.  

ETA: I'm not a great fan of oratory -- it's important but tends to be exaggerated -- but the evening victory speeches were nice.  There was a good "we won!" vibe plus reassurance the good people won at that. People we have a right to trust running the government.  I also really wanted a woman President.  Well, a POC vice president is a start. And, yes, Biden is the guys for the times. To defend myself some, primaries are more about what you want, over what you need. But, yeah, Biden is the right one. 

Tom Paine's Bridge

Tom Paine's Iron Bridge: Building a United States addresses a lesser known aspect of Thomas Paine's (Common Sense)  career.  The wider economic aspects of Paine's career was touched upon by Eric Foner's work (1970s, with a later edition with a new introduction), including his support of the Bank of North America.  The book here argues that Paine saw his iron bridge as a necessary means to unite the nation. 

The story of his bridge efforts, which in the end failed though his model influenced a British effort, is fairly interesting.  This effort, however, suggests that there is not really enough for a full book, even a book that is only two hundred pages long.  The book is really a Paine biography with the bridge stuff mixed in.  Which is basically fine, though early on the writing to me was a bit of a drudge, but it comes off like those repackaged compilation tapes with less new content that meets the eye.  

Plus, there is the basic point that the whole thing doesn't come to much.  After the Revolutionary War, Paine played around with his bridge idea in the mid-1780s.  Failing to get Pennsylvania to sign him on, he took his model to France and Britain, first to get France to bless the technical and then England to help him build and promote the thing.  Then, he got mixed in with the French Revolution. He tried to go back to the whole thing in the late 1790s, and then in the U.S. after the turn of the century, to no avail.  He then died in obscurity.

While he was in France, an iron bridge apparently based on his model was built, but having been convicted of seditious libel and all, defending his patent didn't work out.  And, the book argues that the United States early on didn't really need to use an iron bridge, having enough wood (unlike let's say British Jamaica) and being a young and impatient sort of place that was willing to rely on short lived models. Iron bridges -- unclear how much like his version -- would come later on.  

===

To go back to Eric Foner (best known, perhaps, for his book on the Reconstruction of the American South, after the Civil War).  One interesting discussion in his book is on the usage of terminology, which is getting a bit of attention of late with Sen. Mike Lee saying we live in a "republic, not a democracy," something basically used to justify our shoddy Senate and Electoral College and the like.  To show how language changed, up to newspaper wars during the Revolutionary War, even "republican" or "republic" was used in a negative fashion.

The term "democracy" was particularly used negatively:

In the political language of the eighteenth century, "democracy" had not yet acquired its modern meanings -- it applied only to those states in which the entire people participated directly in the conduct of government, and it implied anarchy and perpetual turbulence.

As Foner noted: groups in time "redefined the meaning of the word 'democracy,' using it simply as a synonym for republicanism, a government based on the will of the people."  Democracy was not anarchic rule of the entire people and representative government was preferable to direct democracy only because it was more convenient.  We see, therefore, that even in the late 18th Century that the terms have a mixed meaning, often overlapping.  This is suggested by the usage of the "Democratic-Republican Party" in various sources.

Election Day: I'm So Tired of This Shit

I was a part of the election worker team that staffed the local polling place in my NYC neighborhood. No surprises in AOC land. Elsewhere, it will be a while but still optimistic look at Biden/Harris. Though other than Arizona (maybe Georgia), no big changes besides a better outlook in the Trump Midwest. Much less so in the Senate, with Susan Collins (Trump enabling concern troll) -- which even seemed unclear Wednesday morning -- winning making Democrat control an uphill battle akin to those end of the season tie breaker scenarios. 

I'm tired.  Can this country get less shitty?  Why do people over and over again enable horrible sociopaths and their enablers?  In the mix, various referendum can be cited to make us feel better.  But, fighting over and over again for every inch is so tiresome.  Like some punch happy Mets fan, we are left with (not quite yet) another "wait until next time" (hey! the 2022 Senate map looks good!).  And, spin that things are good since (so it seems) Trump appears to be gone.  

A horrible sociopath is gone? Well, what more can we even ask for!

SCOTUS Order List

YES! I trained and practiced pediatric cardiology at Columbia University Medical Center in New York City for 15 years. Currently, I see patients in the Bronx at Montefiore Hospital.

Yes, the author of Water in May is well qualified to write a book on a teenager with a fetus/baby with a heart condition.  The author of another book (this time providing a male/female point of view) referenced earlier, this book starts with a very good sense of the character's experiences, including a "you are there" account of a night out.  The mixed race girl has a lot of family problems but has some support, including a young male doctor who is strongly on her side. Well written, realistic account.  

 ===

"It gives me great pleasure on behalf of myself and my colleagues to welcome Justice Barrett to the Court." - Chief Justice, kicking off today's #SCOTUS arguments.

Anger/puke emoji. After, again only via public information officer accounts, not a statement on the website/actual order list for the general public to see, Barrett (her predecessor's dying wish was her not to be there, but what can you do, huh?)  said she was not taking part in the orders, focusing on this week's oral arguments.  

After Friday's conference, there were a few notable things in today's orders.  They finally found a qualified immunity holding that was deemed too extreme, and in another case that has received some attention, sent it back for clarity on state law. Thomas, quiet in the election cases too, dissented without opinion.  Alito grumpily said the QI case really isn't cert worthy (perhaps true, but doubt he's consistent there), but went along.  Kavanaugh had a statement in another case to remind people not taking the case doesn't mean the Court is taking a stance.  

Technical oral arguments today, but a bigger religious liberty / GLBT case later on.  Election cases too? Shall see. 

ETA: According to Strict Scrutiny podcast, Vermont still not satisfied after Kavanaugh provided a limited correction. 

The circuit court assignments have not been updated; RBG still listed for the 2nd Circuit. Breyer has the thinly populated 1st Cir so would think he is a logical person to fill in until things are updated.  And, to update a bit further a fact I have not seen anyone bring up, actually that is correct as a matter of rule.