SCOTUS Watch: Final 2020 Odds and Ends

The end of the year report of the Chief Justice was dropped and logically (with photos comparing a hundred years ago and now) focuses on the Big V. Don't see a reference to RBG dying. We also have more argument dates for 2021. And, a new court reporter.

We also have a few orders, including sending back (with the same 6-3 votes) related cases to the census lawsuit. As of now, Trump has not provided the info in time. And, without comment, a state stay request was denied. Turns out to be an interesting case involving requiring a sex offender to have state id labeling themselves as one.

Also: Jane Against the World: Roe V. Wade and the Fight for Reproductive Rights is a good young adult book that many adults will benefit from as well. The title might confuse since "Jane" here is specifically a collective of women that performed abortions, not Jane Roe. The book is clearly pro-choice, but does provide some material on the other side.

Jets Spoiler, Giants Alive

No bye, so there are some more football games, allowing an extra day of football. (Christmas football was on Friday but there is usually a Thursday game anyway. This time of year amounts to more Saturday games.) The Vikings actually kept up, always a bit behind, with the Saints until mid-4Q. There were also more upsets and the Raiders found another way to lose (missed XP and deep pass/penalty allowing a FG to win it via a drive that took around twenty seconds). Green Bay also had a scenic snow game.

The NFC East went back to form of late though this helped the Giants. Washington needs a win to get in, but without an adequate QB haven't been able to do so. Eagles went back to losing. Giants lost too but are still alive, needing to beat Dallas and hope Washington loses. Dallas hopes that too, but to win too. Jets spoiled again, beating the Browns. Jags lost, so they get the #1 pick, but that alone is of limited concern anyhow. Bills win.

The Other Americans

The holidays continue with Boxing Day (12/6) and Kwanzaa, which is sort of a secular African culture friendly Hanukkah with a menorah of its own. Among the holiday films I watched parts of, I basically watched all of the Katherine Hepburn (very good) and Cary Grant (also matched up in the slapstick Bringing Up Baby) film Holiday, which takes place around this time, but the title refers to Grant's desire to take a "holiday" to figure out things.

A cultural mix is found in the mystery The Other Americans, a mystery told from many points of view by Laila Lalami. I figured a plot twist early on, but overall, I enjoyed the book by the author of a recent non-fiction book about the experience of immigrants.

Merry Christmas!

 

Third Time's Not Quite The Charm

Update: Trump is starting his finale with a bunch of -- nothing novel on principle here really -- corrupt pardons including of war criminals, fellow conspirators in the Mueller Report crimes as well as political corruption by allies. And, Kushner's dad.  His pardons are uniquely corrupt, the few good ones generally favors for celebrity friends.  

The Constitution seems to leave open arbitrariness in the application of pardons, though sound practice would provide an organized approach that also addressed such things as clear conflict of interest and so forth.  Of course, in theory, the impeachment power provides a check.  His usage here, including floating pardons (clearly spelled out in investigations and influencing the responses of people involved) to obstruct investigations. 

But, Republicans didn't give a shit and continued to enable him.  It is yet again not just his responsibility.  

Item: a felon, adherents of the QAnon conspiracy theory, a White House trade adviser and a Russian agent’s former lover

The effort to fight Biden's win continues though at this point (if it ever was different) it is clearly more grift than anything else. Accounts are that this whole effort is ranking up the bucks. It is unclear who actually are true believers, one figures Trump himself somehow believes it (see the book Strongmen where there is a tendency to believe your own b.s. as to how broad your support is), but that is on a basic level of limited importance.

The greater concern is the widespread belief the election was tainted, including this helping support of new burdensome voting restrictions as well as opposition to Biden and his overall plans. We also should be concerned about delaying and even now interfering with the Biden transition, especially in these times. This is a drawn out process that involves a lot of resources and trading of information and access. The harm here might not be clear in a hard and fast way, though examples probably can be cited, but the net burden is real. This is all the case even if (as expected) Trump is gone on January 20th.

None of this is unexpected, but we again have people saying THIS is too much as if it is really shocking, and they might have been able to go along with somewhat less. Let us recall the impeachment. As I said earlier this year: Trump got his free pass. This is from Rep. Val Demings, a House impeachment manager, a former police chief:

[He] ordered his subordinates to lie to investigators, intimidated witnesses, and tried to kneecap the investigation at every opportunity. He ordered White House Counsel Don McGahn to fire the special counsel, and then to lie about it and fabricate evidence to hide his action. Don McGahn refused this illegal order, but as Director Mueller clearly stated today, an attempt to obstruct justice is still a crime, even if refused. The Special Counsel documented at least ten counts of obstruction of justice, a federal crime.

One of the election challenge grifter gang is Sidney Powell, a dead ender on this question. She also became Mike Flynn's attorney, the start of him going (back?) to full wingnut. To show how long these things drag out, this was around two years ago. Flynn is one of those glaring, symbolic fucked up things, a national security advisor in hoc to a foreign power (at least one) and now apaprently full Q conspiracy. One or more of those now in the expanded Republican House caucus. 

The age of resistance will continue on after January 20th.

Football Update: Every Dog Has Its Day

I figured that the Jets would win this season, but a game versus the Rams (9-5 now, so flawed) wasn't really expected. Jags have the #1 pick now but who knows what will happen with the 2 wins (and a tie!) Bengals beating the suddenly struggling Steelers on Monday Night. Bills clinched the division for the first time this century and the Pats were eliminated for the second (back in the day, they lost on a tiebreaker). Jets play them again; will Jags win too and the game matter? Giants lost but each NFC East team still alive with two games left.

Among the graphic novel options was one with a cute cover by Rumiko Takahashi, who turns out to be a long time manga artist in Japan. The library did not have it but did have a volume of her classic Urusei Yatsura (horrible people) series. Amusing, creative and well drawn.

The Invisible Woman

This is an amusing Svengoolie film, well paced and I even was overall amused by the comic relief (it overall is a comedy). Charlies Ruggles as the butler, a familiar face, included. Many of these films, including classics, don't quite do it for me, but there are some good ones. Svengoolie as usual is fun and from what I can tell quite a professional at what he does.

Bonus SCOTUS Content

Since the release of census data is time sensitive, it was suggested that the Supreme Court would address it soon. And, they did via a short per curiam disposing it on standing and ripeness grounds. There seems to be some merit to that, noting (as more than one blog noted) such things are applied arbitrarily. Wrongful actions alone won't get you a decision (but maybe this is an unjust result) though the dissent flags that the government here clearly stated its intentions and in the process will cause unnecessary delay and cost. OTOH, it seems fairly clear that the Trump actions are not final, plus just what they entail is in doubt.

(Some were annoyed that the Supreme Court did not sign the opinion dropped here, but as things go, this is a more appropriate usage of per curiam. That is traditionally used to drop uncontroversial brief opinions that do not substantively address the merits of a claim. [Other special cases arise, such as the author of the opinion leaving the Court.] But, here, there was a strong dissent. So, as a matter of good policy, it probably would be better for it to be signed. Cf. the Texas per curiam which was a dismissive rejection that only had a brief "statement" of two justices adding something to it. This "back of the hand" from the Court very well might have been too brief, but it is the sort of thing that makes sense for the Court as an intitution, so to speak, to "say.")

The liberals via Breyer dissented, going to the merits in an opinion about three times as long, spelling out why Trump's position is stupid. At first blush, interesting Breyer would not accept a punt, especially with the Biden Administration coming in. But, he did partially dissent in a previous census case, and veteran Supreme Court journalist Lyle Denninson entitled his summary "Trump gets big — temporary — win on census." And, the merits after all are pretty obvious, including both on partisan and racist (a theme in the earlier opinion too) grounds. As Breyer noted: “History shows that, all things considered, that approach has served us well. Departing from the text is an open invitation to use discretion to increase an electoral advantage.”

But, we had even more bonus content. Supreme Court reporters on Twitter referenced a new policy of some sort of a bonus order day even without a conference intervening, to fill in the argument slots (good many) still open. If this is a thing, not that they would explain it, or not, they granted a few cases of some note either way. SCOTUSBlog summarized:

The Supreme Court on Wednesday morning added three new cases to its merits docket, agreeing to hear arguments in a pair of consolidated cases in which the justices will decide whether colleges should be able to provide greater compensation to student-athletes, as well as an appeal from the credit-reporting giant TransUnion, which is challenging a class action lawsuit against it.

The student athlete matter touches upon the important issue of the amount of compensation allowed, something that gets some degree of attention. College sports, at least football and basketball in some schools, can be quite profitable. How much students should be compensated, besides something like tuition (not nothing), is debated. 

The other matter has potential, especially with a six person majority, to move the needle on class action law. An amusing thing for me there was the competing summaries of the nature of the harms. The credit reporting company spoke of "an inaccurate credit report hindered his effort to secure credit, caused him embarrassment in front of family, and led him to cancel a vacation." While the other side flagged people being accused of being terrorists or drug dealers. A bit different, huh?

We also had a few orders dealing with the new normal regarding applying the Cuomo religious liberty case to various pending litigation. The rule seems to be that some will be sent back without comment, but (as was flagged by Kagan for the liberals in one case, arguing the case was moot) maybe now and then there will be a split. Why this is not just all treated together as compared to drip drip via often opaque orders via the shadow docket is up to the reader to figure out

Another, this time even less religious institution focused (thus the dissents flagged possible "hybrid" rights or something), was turned down (again in an unsigned order) for time reasons with Alito/Gorsuch dissenting.  Gorsuch again laid it on thick about religious liberty allegedly (no) getting second class treatment. They want to pull back Oregon v. Smith, the religious liberty case setting down the generally applicable law rule. Might get their chance, but not quite yet.

Is this it for 2020? Again, might get some stray order, and these days more would not really surprise.

A Woman Is No Man

Found this online and it was overall a good first novel.

It contains multiple points of view, at different times, which is one thing I like. I would have liked something in Sarah's voice, and her dialogue at times seems too forced, there to send a message. Looking at the author's Wikipedia page and her own, the book is to some degree inspired by her life. The Deya (18) character comes off as herself.

Electoral College Votes For Biden/Harris

Stacey Abrams is met with applause as Georgia electors cast their ballots for Joe Biden & Kamala Harris: pic.twitter.com/BSoo8KxpiJ

— The Recount (@therecount) December 14, 2020

Today is the day when the Electoral College (designated voters meeting) meets and the current rule in each jurisdiction (states and D.C., the latter per amendment; Puerto Rico with more residents than several states etc. lose out) is that the popular vote determines how many electors are picked. The party picks the individual electors, helping to avoid the whole faithless electors problem. By statutory rule, it is the same day, but not the same time. You could track the votes and watch the electors do their thing.  And, then the lists are sent to the "seat of the government" and counted with the President of the Senate presiding.  Jefferson did this even with himself on the ballot. 

And, except for Maine and Nebraska, where each district gets individual votes [resulting in a single Trump and Biden elector this time], it is winner take all. At shortly after 5 P.M. (EST), California pushed Biden/Harris over the top.  No faithless electors though some states do not have laws (deemed acceptable by the Supreme Court) against that.  Hawaii would vote a few hours later without incident. So, 306-232 with no faithless electors, meaning that looking at THAT vote, Biden has two more than Trump.

That is, Kamala Devi Harris:

Kamala Harris’ first name means “lotus” in Sanskrit and is also another name for the Hindu Goddess Lakshmi, who represents wealth and prosperity. Her middle name “Devi” also means “goddess,” and it is the name of the Hindu mother goddess, a nurturing force with a fierce side. Both are deeply revered symbols of South Asian culture. Harris' mother Shyamala told the Los Angeles Times in 2004 that she chose Kamala’s name for an auspicious reason: "A culture that worships goddesses produces strong women."

As Hillary Clinton, a New York elector, said, we really shouldn't have an Electoral College. It might have made some sort of sense, at least as a compromise, given various contingencies in 1787.  Not any more.  But, as long as we have it, the whole ritual of the votes and so on does have some sort of charm. Some fear we will have "faithless electors" that will screw things up.  After 2016, suggesting anything is unlikely will get a "yeah right," but so far so good there. Note, when only a handful was involved, I don't recall any suggestion a few Bush electors should switch in 2000.  

As the electors were about to vote, apparently, the Wisconsin Supreme Court (4-3 with one conservative judge leading the way; the difference very well might have been the new justice elected earlier in the year) pushed aside another Trump lawsuit.  But, the Trump side clearly are in the Animal House "Did it end when the Germans Bombed Pearl Harbor?!" frame of mind.  A New Mexico suit was reported just today.  Stephen Miller on the morning propaganda reports spoke of shadow electors. Later on, Bill Barr (submitting a suck-up letter, including continuing the fraud bullshit) said he is leaving on the 23rd.  

Meanwhile, saw some reports of New York health workers getting the COVID vaccine.  We might have a beginning of the end.  Or, at least, the end of the beginning.  I myself got a COVID test, both the more accurate delayed results one and the antibody test.  The person said it usually is good for six months and I took it in June.  But, balances off fairly well.  

SCOTUS Watch: 2020 Ends?

The SCOTUS dropped a cert. grant on Friday, but the Order List wasn't totally boring (often is a flag it will be boring). A per curiam summarily rejected a habeas claim involving the right to counsel in a death penalty case, the liberals dissenting without opinion. I continue to oppose not explaining oneself in important cases (maybe the case here is weak; either way), but it is notable too since (so Legal Twitter noted), this isn't usually done in 5-4 cases. Barrett might eventually have a deciding vote not in a case involving death.

Other orders involved not taking a cases rejecting an Indiana law against protecting same sex couples being on birth certificates, citzenship id requirements for voting and also a crank challenge against six of the existing justices (quorum is six; no quorum? the lower court by statute holds). Trump Twitter and census claims not decided upon. And, a real original jurisdiction case involving water rights was decided with a partial dissent from Alito.

No more scheduled executions (usual only reason they are compelled to decide something) or conferences scheduled for 2020. Chief Justice's end of the year report the next scheduled thing to look for. Probably see more though.

Jets 0-13 and Giants in Second Place

East v. West with the West winning ... Jets scored a field goal and then was crushed by Seattle, who the Giants beat last time. Cardinals dealt with them, after the Giants defense held them down some early, only giving up a touchdown. Bills dealt with the now two losses in the row Steelers for the night game. Three times for NY teams, one win.

Meanwhile, the NFC East is no longer "the least" as a whole, Dallas, Eagles (over the Saints though they almost blew it) and Washington (now in first place) all winning. Other notable game: Bears had offense and won. Ravens/Browns on Monday Night.

Strongmen: Mussolini to the Present

This well researched book with some biting comments mixed in now and then is surely timely. The book covers ground to around June 2020 and includes Trump in the mix. This includes the changing nature of strongman (rich plutocrats using elections often the deal now), their techniques (violence, virility, corruption etc.) and how the core covered ended their reign. Plus, key things to use to address and prevent, including respect of good institutions, some form of justice and a general positive approach. Strongmen tend not to have empathy.

Happy Hanukkah

 

I talked about the holiday in the past and still want to find a good book about the historical events involved. Among our new things, the Vice President's [elect] husband is Jewish. There are also now a few Jewish themed holiday movies on televison. And, I saw reference elsewhere that some Jews (contra to some talk I saw) find the holiday quite important, in part since provides a balance to Christmas. And, this case involves a menorah.

SCOTUS Rejects Texas Suit But ...

The timing of this opinion brings to mind the 20th anniversary of Bush v. Gore.  The case might have been a somewhat less absurd usage of the courts [Rick Hasen argues the correct lesson should be changing the system to advance non-partisan electoral procedures] -- specific candidates challenging specific state electoral procedures not irregular in a general sense -- but it clearly had its own absurdities.  Tempus fugit.

The tail end of my last post tacked on the latest Supreme Court decisions, including regarding an attempt (joined by a myriad of people, including typo filled briefs by people like one representing "New California" and "New Nevada" as well as Citizens United and a majority of the House Republican caucus led by the minority leader) to overturn the popular vote in four states (the Midwest states turned and Georgia) and toss it to the state legislatures there.  Here is a bit more with links by SCOTUSBlog.  

A founder of the blog in a atypical statement (not totally -- he defended Neal Katyal earlier) strongly argued that the Supreme Court should have wrote a longer (if brief -- five pages or whatever) statement strongly rejecting the lawsuit as an abuse of the courts.  I think he lays it on a bit too thick, including on how useful it would be and how it would be the best hope. The best thing would be a bipartisan coalition in Congress joining together, but guess that is unlikely.  I was open to the idea while others also shared his feelings fairly strongly.  

Others argued that the lawyers involved should be sanctioned or worse. I am supportive of the sentiment as well and fear the alternative will be more of the same.  It is quite important to denounce and not forget what is being done here.  Some will likely see it as all theater, but it is not.  It also is actually taken seriously by probably millions of people in some sense.  I might say tens of millions even.  A majority of the people's House minority -- why not? voters (though they are saying votes in four or more states are tainted, including some they themselves come from) expanded their caucus -- want to overturn the vote (based on bullshit) and let state legislatures assign the electors.  

I share this sentiment:

And this is why I, and many Democrats, were disappointed by the results of this election, Biden/Harris aside. Republicans suffered no consequences for enabling Trump the last four years. They will suffer no consequences for enabling Trump in the current efforts to undermine a democratic process through blatant falsehoods. And they will suffer no consequences  for preventing Biden from appointing cabinet officials, never mind judges. So there are no incentives to get them to stop.

Disappointed/anguished/pissed off .. you know, depending on the moment.  Rick Hasen is happy at judges as a whole (a few did not) rejecting a bunch of really bad lawsuits (might very well be different if it came down to a state or two with somewhat more credible disputes), but still is concerned about the future because they still taint the integrity of our elections long term. Also, it will lead to more efforts to add voting restrictions, defended as necessary to safeguard electoral integrity. And, courts will uphold them on presumption of regularity grounds, mixed (as has been cited in some cases already) some general important state interest for the appearance of integrity. 

(In part: "But the fact that 18 attorneys general and 126 members of Congress, all Republicans, could line up behind this outrageous Texas case is horrible and bodes ill for the country for years to come." Also, "The delegitimization of the Biden presidency by Trump, and of elections generally, will reverberate for years to come. And that’s a real tragedy.")

Anyway, other than one mild win, Trump and Republicans supporting Trump have lost nearly sixty election lawsuits as of this writing. After the election, so far, the Supreme Court only disposed of two, one the other day without comment.  The Supreme Court dealt with one shortly before the election from Pennsylvania that some feared might matter, but it turned out the vote wasn't close enough. It might in some form technically be still active though again it's basically moot.  

OTOH, as with the case tossed today, there is an issue involving state legislatures regulate elections that at least three, maybe more, justices want to take.  It's trouble and would interfere with the power of states to regulate their elections, including judges and other electoral bodies tinkering around the edges in important ways to safeguard election integrity.  The one disposed today basically argued the four states had various electoral irregularities and this somehow (using some perversion of voter dilution or something principles) tainted the rights of Texans, whose "lawful votes" were harmed somehow.  

The alleged irregularities are bullshit and were dealt with in other cases. The overall argument was bullshit. So, the Supreme Court in a per curiam just said they had no Art. III standing.  It added this general rejection: "Texas has not demonstrated a judicially cognizable interest in the manner in which another State  conducts its elections."  Alito and Thomas cited their view on discretion in original actions, but given the explanation, not sure really the relevance.  The others didn't merely reject; basically they held Texas on the merits didn't have standing.  

The per curiam (note that it appears one can't just hold off from joining them silently so Barrett seems to have formally been involved though her not recusing herself didn't really change anything) doesn't spell out why Texas was wrong so it is unclear how much if any this will provide caution to future attempts to do something like this. "This" including in effect ideological partisan stunts (here perhaps to encourage Trump to grant a leader of the effort a pardon) against other states in the courts.  

[I say "apparently" from references on legal Twitter but see here suggesting only a majority is necessary.  Also, note that Alito had a "statement," not a dissenting opinion.  It probably is a partial concurrence. The wording overall for each group was probably carefully crafted though exactly what it means as noted by me is not totally clear.]

The order tossed other motions related to the case as moot. Alito and Thomas vaguely said that they "would not grant other relief, and I express no view on any other issue."  But, what does that mean? Is it a suggestion that they would accept the filing (do they think there is a judicially cognizable interest?) but reject it on the merits?  Or, won't do anything now?  What "other issue"?  A real opinion might have actually been useful in both cases to clarify these issues.

Anyway, as Rick Hasen notes, some more meritless litigation (including one being heard in Wisconsin tomorrow) will continue, maybe even after the electors meet on Monday.  And, then, there likely will be objections of the count in Congress -- House Republicans already said as much and Ted Cruz or someone else will join them in the Senate. It will be rejected and then we will see what else will be made up.  Will someone claim Biden misspoke the oath? Will Harris break a tie and someone challenge her citizenship?  

And, we must continue to speak out against the rejection of democracy and overall bullshit. The resistance will continue.

SCOTUS Update: First Signed Opinions Drop

After without comment ("brief order" is sometimes used but that implies some content) deposing of a stupid Trump post-election lawsuit, the Supreme Court dropped four signed opinions on Thursday.

The theme in the opinions were short opinions that were basically all unanimous though a justice (or whatever Gorsuch is) had something to add at times.  A summary of three can be found here with the fourth involving leaving be a local pharmacy rule as not pre-empted by federal law.  As Sotomayor notes, the matter is of some importance and overall it shows how local discretion involves a range of subjects that might in some instance raise federal law implications.  

As Alito says in his own opinion, there will be reasonable debates, and the Supreme Court has to on balance settle the disputes.  To give credit, his brief opinion in a military capital case was well written, spelling out the details and settling the issue is a calm succinct matter.  The opinion avoids wider debates on the Eighth Amendment.  The same with Thomas' opinion that as a bare minimum allows under RFRA the right to money damages, here related to an alleged wrong involving Muslims and the no fly list matters. And, as Alito notes, many of these disputes can be relatively briefly handled, though judges do love words. 

The RFRA opinion has an interesting brief summary of Oregon v. Smith and what RFRA did:  "RFRA secures Congress’ view of the right to free exercise under  the  First  Amendment,  and  it  provides  a  remedy  to  redress violations of that right."  Just how much power does Congress have the right to a "view" of a constitutional provision that courts interpret?  Also, if RFRA "restores" the previous rule, does it do more as suggested by Hobby Lobby?  Without more, not clear, and future cases probably will at least somewhat modify the application of that old precedent.  

The fourth case was a punt on standing grounds in a potentially divisive dispute involving regulating the number of state judges by party or "major party."  Then, we had the first of two executions scheduled this week, involving someone many saw was a horrible choice to execute even if you support the death penalty in some cases.  This includes members of the jury and the Department of Justice pardon division.  This was for various reasons, including ones that (as three justices, Sotomayor with an opinion, flagged) had constitutional problems.  

He was executed.  We also had reports of past federal executions spreading the Big V.  No shock there.  Execution scheduled by feds later today and three for January.  Today's defendant is probably less sympathetic though does raise intellectual disability claims that can help one look past his crimes to some degree.  

Update: As expected, the Supreme Court rejected without comment those claims with Sotomayor (with Kagan) dissenting, saying there is a case to raise a claim based on statutory barriers to executing the mentally retarded.  No procedural bar in her view.  No comment from Breyer.  

Some wanted a statement of principle rejecting the crazy Texas lawsuit against four states that brought in a lot of comment nationwide. The justices went with barebones rejection, Alito (and Thomas) slightly dissenting since they think there is an obligation to take any such case procedurally. No comment on the merits.  

The Court also granted a securities law case and announced more orders (likely boring) and one or more likely opinions on Monday.

Conditional Citizens

This is short book by a native of Morocco who years ago came here for postgraduate education and staid after falling in love. She later became an American citizen. She covers various grounds on how "other" people are and were treated as second class citizens, particularly immigrants. Interesting read that reminds us of our limitations as a society.

Giants (1st Place) and Jets (No wins) Hold Serve

Figure the Jets will win a game, had a few shots, including today. But, they keep on finding a way to lose -- this time with a few seconds to play vs. the Raiders on a badly defended long pass. Jags, with the #1 pick tiebreaker, holds at one win. OTOH, Giants actually beat Seattle with their back-up, their defense holding Seattle, including in the final drive. Where Seattle often manages to do the job. 5-7 and one step closer to winning the division.

On Monday early and regular night football, Washington (sic) broke Pittsburgh's winning streak and Buffalo went back to the site of the end of the game shocker (Arizona) but this time won (if against SF, there for Big V reasons). And, on Tuesday, Dallas acted like a three win team.

Mary

Today is the day Catholics honors the "immaculate conception," which is not in reference to the birth of Jesus.  It is based on the supposition, not shared by many Christians and probably confusingly understood by some Catholics, that Mary herself was born without original sin.  This to me would cheapen things a bit, since her strength of character is underlined if she was just like the rest of us, inclined from birth to "sin," or act against God's will (actual or symbolically understood).

Her acceptance of destiny also becomes less profound.

The Gospel of Luke notes:

In the sixth month, God sent the angel Gabriel to Nazareth, a town in Galilee, to a virgin pledged to be married to a man named Joseph, a descendant of David. The virgin's name was Mary.  The angel went to her and said, "Greetings, you who are highly favored! The Lord is with you."

 Mary was greatly troubled at his words and wondered what kind of greeting this might be. But the angel said to her, "Do not be afraid, Mary, you have found favor with God.  You will be with child and give birth to a son, and you are to give him the name Jesus.  He will be great and will be called the Son of the Most High. The Lord God will give him the throne of his father David,  and he will reign over the house of Jacob forever; his kingdom will never end."

"How will this be," Mary asked the angel, "since I am a virgin?"

The angel answered, "The Holy Spirit will come upon you, and the power of the Most High will overshadow you. So the holy one to be born will be called[c] the Son of God. Even Elizabeth your relative is going to have a child in her old age, and she who was said to be barren is in her sixth month. For nothing is impossible with God."

"I am the Lord's servant," Mary answered. "May it be to me as you have said." Then the angel left her.

The whole account has a mystical quality that "fulfills" a biblical prophecy that appears to have concerned something else, including a quite normal birth.  Still, it is interesting to examine what is happening here.  For instance, note how Mary, who is about thirteen here, is informed beforehand by a messenger from God.  The matter is not just thrust upon her without warning.  She also consents to her role.  The event here (called the "annunciation" or announcement) can be seen as a symbolic acceptance and/or understanding of her role. The angel can be seen as symbolic -- ultimately, it can be a matter of faith on Mary's part, a personal religious experience.

Only time would tell if it was true or a mistaken confusion of a naive teenager.  The account was written long after the events, even if we take it as fact, based on oral statements perhaps given decades later.  Given the two birth narratives (Matthew and Luke) conflict, as do all the gospels on various details of Jesus' life, the exact details are unclear.  A mistranslation of "virgin" or using one version of the assumed truth so that the prophecy would be fulfilled could lead to an account that did not exactly happen quite that way.  Who is to say that an "illegitimate" pregnancy would not be used for God's purposes?  The Bible has many accounts, including involved assumed ancestors of Jesus, where questionable events (including tricking a father-in-law to conceive a child) furthered God's plan.

A book considered the death penalty by looking at Jesus' own execution,* in part since Jesus said that the least among us (including prisoners) should be treated as one would treat Jesus himself.  Imagine if Mary is seen as the seminal teen mother? Singling her out as having no original sin, like the idea of a perfect God who accepts the state of the world, does not really work for me.  But, what do I know?


I just share a name with St. Joseph, after all. 

---

* Jesus on Death Row: The Trial of Jesus and American Capital Punishment by Mark Osler

SCOTUS Orders

SCOTUS will have a few interesting -- if not getting as much attention as some -- oral arguments this week. The big moment of late was dropping the 5-4 order regarding regulation of religious practices during the time of Big V.

A California case, which the state argues is different than the New York one and accepted this approach, was sent back to be re-examined. A procedurally, according to legal Twitter, novel approach but the no dissents suggests not too controversial. It does show that the other order, even if it had no immediate effects for New York, has advisory bite. The other order last week granted cert in a Medicaid work requirement matter that very well might be made moot under Biden. As expected, that Friday drop foreshadowed a dull Order List.

Some Current Thoughts on Legislative Prayers

I just listened to and read the various decisions of Marsh v. Chambers, the earlier legislative prayer case. Sen. Ernie Chambers (Nebraska) is still around, a hero and character to the end.  Past entries covered this ground, including a later case that somewhat clarified what is required. As with the Scarsdale case just addressed, the discussions stand on their own and they are pretty well worded. So, won't totally re-litigate.

The Brennan dissent is well argued overall as is the briefer Stevens' dissent that is more focused on how the prayers (and one chaplain) advances a specific religious faith.  The opinions below are more concerned with funding (district court) and funding particularly of a solitary chaplain of this nature. The Supreme Court majority argues funding along with the rest is allowed by history.  Funding is a primary concern on the Establishment Clause, but so is sectarianism.  If we have some sort of system of the type here, it should be as broad as possible. This is even somewhat noted by Supreme Court precedent.  A practice that blatantly promotes Christianity in a disparaging way is not allowed.  

One thing noted by the opinions at the Supreme Court level is that even at the beginning there was some dissent on use of chaplains, reasons that are flagged by opponents today.  Brennan's discussion at one point notes how religion is in a special way deemed private here.  This flags how there is a "right of privacy" that involves various constitutional provisions.  Anyway, there is (and not just a "we can't be absolute" way) something curious about a government body starting its official proceedings with chaplains/prayers, which are in some fashion going to be somehow sectarian.  

Finally, there is the usual talk in these cases about how such and such is allowed. This can get tiresome, since lines are drawn.  But, not being a Supreme Court justice or something, I can face up to these things and accept that "God Save This Honorable Court" and so forth are not just words said that has lost all religious meaning. Or, some bland way to "sanctify" (or whatever word is used) public hearings.  It is a lingering official means to reaffirm certain deistic (and as a whole often more) messages.  This doesn't mean all is acceptable.  Even Scalia noted something like "In Jesus Christ We Trust" would be problematic.  

(Scalia did this during the oral argument in Lee v. Weisman, which also has an interesting concurring opinion by Souter that not only provides a textual and originalist analysis but also weighs it with precedent.  His discussion includes a good discussion of Thanksgiving Proclamations, also one of those acknowledgments of religion that repeatedly is tossed off as justifying something not really comparable.)

I actually had to write a mock opinion for this case before the fact and at the time thought it would come out 5-4 the other way. To be fair, apparently, Justice Scalia also was upset.  OTOH, if you listened to the oral argument -- something not readily available at the time -- both Kennedy and O'Connor's votes later on are not really surprising, even if Kennedy hesitated during the opinion writing process.) 

But, again, if we are going to allow that sort of thing, we need to take care.  Truly respect the diversity of beliefs out there, including those who might be labeled "secular humanist" or whatever.  If we have "days of prayer" or the like, respect some do not pray and don't just blatantly promote "Judeo-Christian" values or something.  Don't have appeals to "religious liberty" and just mean conservative religions. 

And, maybe even recognize that even if absolutism (or closer to it) is not possible, something might be lost in the process.  Those long law review articles that show that "ceremonial deism" or whatever in actual practice burdens religious liberty has some bite. 

You Never Forget Your First (George Washington)

I read Alexis Coe's first book, a historical drama that has been made into a movie. This book was ready for me in March, but didn't pick it up in time when the NYPL closed. So, it was sitting on the reserve shelf a few blocks away without me having access.

Finally came in (probably not the same copy) recently. I enjoyed it, including its down to earth (but still serious) style with helpful charts and such summarizing various information. (Sarah Vowell's snark and asides after a while is laid on a bit too thick.) The book intentionally is a reasonable length (around two hundred pages) and at the start suggests it is trying to avoid the traditional "masculine" biographies. Not sure how much a "woman" touch here mattered as compared to not being stereotypically traditional. No photos.

House/POTUS Good News (In a Sense)

A reply to my least favorite Dorf on Law contributor annoyed me, but also flagged something useful. Now, it is unclear how helpful it is to his overall sentiments, which multiple replies suggest are somewhat scattered.  Still useful.  So, maybe I owe the person thanks.  Not too much. No one reads this anyway.

My reply also slipped up and made a silly mistake but it didn't really hurt my case in the long run.  Just a nod that online comments (and more edited fare!) will slip up sometimes.  Take the whole content, not just slip ups.  A last bit --  Michael Dorf (his wife recently nicely thanked me for supporting her work in another entry) argued the reference to gerrymandering was specific.  Comments do at times latch on to something without addressing the specific argument.  But, comments can be addressed as is too. 

Partisan gerrymandering has been a subject at many blogs and overall I think it a bad thing. How does it fall?  Well, given Republicans now control state legislatures as a whole, you would think it would benefit them as a whole at the moment.  Likewise, conservatives on the Supreme Court oppose usage of constitutional arguments against it or use a specific dubious restrictive usage of "state legislature" (see the post) to restrict the power of the people to respond. "Both sides do it" takes you just so far.

I still am not really sure how much net nation-wide partisan gerrymandering is a problem. To get to the point, per the NYT: Democrats received 76,797,776 votes (50.7%) and Republicans received 72,582,488 votes (47.9%). There are four races not decided yet.  Dems by proportion would get 220.5 seats there. They have 222. Republicans would get 208. They now have 209. (again NYT numbers)

(Wikipedia tells me Republicans received 44.8% of the vote in 2018. That means they improved by 3% which is currently the difference between the parties too. That to me comes off as a small number that is quite open to fluctuation.)

Now, why those votes split that way very well can be explained in various ways. It is likely fairly complicated.  So, e.g., in specific states that partisan gerrymandering might have helped one side. The issue there is to determine nation-wise how that balances out.  That would require a complete parsing of the numbers. 

Both parties gerrymander; one party these days seems more open to voting rights legislation to address that and other issues.  But, I don't know.  And, in specific cases, maybe voting id laws and so forth matter.  If they don't, well, why do Republicans support them so much?  If we want to be all cynical (realistic), these things would be motivated in some fashion by pragmatic hard results. 

Anyway, Biden received 51.3% vote. So, he has a slight plus from the House vote, though would appropriately be leader if we had a parliamentary system.  Again, this is all interesting, and somewhat reassuring. Biden won around seven million more popular votes than Trump.  Merely by percentage, his vote total would be in the 270s of the electoral vote.  Is it a "landslide" when you are within a poll margin of error of winning the popular vote?  Seven million is a lot.  It is less when it is a fraction of 155M.  Still, rounding off, we are talking a four percent swing.   

Sounds less than "seven million" in a way.  Anyway, the problem as pointed out by Paul Campos at LGM (see blog roll) is that in the states necessary to avoid an electoral tie (Pennsylvania and Michigan not enough), the popular votes are in the tens of thousands.  Too close, if far enough to match the vast majority (until this century) of times where the winner also got the popular vote.  Again, the recent trend is troubling, and constitutional requirements can make it even more of a problem in upcoming years as population shifts might really unbalance things.

How about the Senate?  I will rest on the other two, especially since the whole Senate isn't elected at once. The balance overall from past information is less likely to be satisfying.  Maybe, not as bad as it might seem, but then the two senator rule inherently is a lot more problematic than what amounts to rounding errors that can be fixed to a large extent by expanding seats. The House, at least, even with problems of small states like Wyoming and existing gerrymandering, does seem again somewhat reassuring.

All the Republican popular votes still to me is rather troubling.