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.
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