SCOTUS Commission (and other stuff happens)

As we wait for the final opinions of the term, the Presidential Commission on the Supreme Court of the United States had four sets of panels to dicuss various subjects. Many of them also provided written testimony.

A couple listed didn't show up -- one had a conflict; Charles Fried is listed but that appears to be an error or decided not to take part.  There is a lot of interesting stuff in the written testimony, including providing international perspectives. There was wide support of term limits from multiple participants.  Some were open to things like having a congressional override of the Supreme Court.  None supported expansion from what I can tell.   Some of the material covered was somewhat technical if important.  

I don't know what this all will add, but again, it seems to me to provide a helpful educative function that promotes public conversation and media coverage.  It also reminds that merely citing court expansion (which gets much of the attention) undersells the various issues involved.  

Meanwhile, we have more Biden judicial nominees.

Authorities say John Hummel stabbed his wife, Joy Hummel, more than thirty times in December 2009. He then used a baseball bat to beat to death his daughter, Jodi Hummel, and his 57-year-old father-in-law, Clyde Bedford, who used a wheelchair. He then set their home on fire in Kennedale, a Fort Worth suburb.

We usually have wait on the scheduled day of execution when we wait for the U.S. Supreme Court to decide what to do with final appeals. Sometimes, we get a statement or dissent, often from Justice Sotomayor. And, we get a standard order simply denying the final appeal or appeals, usually without comment. 

This time, the lawyer did not have any final appeals, deciding past appeals covered all the ground.  The execution was scheduled last year but was delayed because of COVID.  Various legal concerns were flagged, including determinations of future dangerousness. But, bottom line, what is the value of execution?  

The article flags a family member/victim says she will not have "closure" from his execution.  Some victims say they will.  It is surely not a consistent thing.  Why single him out from various others who committed horrible crimes?  Public safety -- which might arise in some cases of those dangerous in prison -- seems not to be a major reason. 

The state during the last execution reportedly flubbed notifying the media so that witnesses could be on board. The state promised to not do that again.   And, they executed him.  The second state execution in 2021.

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Another thing legally related is that Bill Cosby's conviction was overturned because of prosecutor abuse.  I have seen legal minds, including those rather sympathetic about the interests of his victims, say the result was correct.  The guy that eventually helped to defend Trump during his second impeachment screwing things up seems quite possible.  And, no, not only rich and powerful types get their judgments overturned.  Others disagree with the result.  But, people I respect do agree with it. 

A basic thing here is to address sexual predators before they are senior citizens.  Some success in the general direction, including #MeToo, is occurring in recent years.  As that occurs, there will be decisions like this that will leave a bad taste in one's mouth.  But, he did not ultimately "get away with it."  He was imprisoned, shunned, and so forth.  This isn't a "he's innocent.

SCOTUS Watch: First the Cases Less People Care About

The voting rights/disclosure cases will be handed down on Thursday. Tomorrow is the Presidential Supreme Court Commission's first substantive session. An execution is also scheduled. But, there were three notable, split, rulings handed down today.  Even if less care about them. 

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Two had the "moderate" conservatives (Roberts and Kavanaugh; Barrett sometimes will fill in here) joining the liberals. Kagan took a patent case. Barrett writing one of two main dissents she had today. The judge who shouldn't be there seemed to spend more passion (multiple footnotes) addressing Alito's dissent, which wanted simply to get rid of the case. 

Kagan writing helped to make the technical issues more readable. And, we are dealing with an important matter: "the  invention  sparking  this  lawsuit  is  a  device  to  treat  abnormal  uterine  bleeding,  a  medical  condition  affecting  many millions of women."  The case split the Court by a vote of 5-4 (4-2 non-tainted) so a basic point here was to find a solution. The outsider should probably look at it that way unless they have some technical interest on the particular patent law issue involved.

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The second 5-4 split of that nature which sometimes will arise involved federal eminent domain power involving pipelines, which also raised sovereign immunity issues.  Roberts wrote the opinion, the dissent focused on the latter constitutional issue.  Using the (for those into this sort of thing) familiar "plan of the constitution" lingo that arises in these case, Roberts explained the federal government had the power there using original understanding.  OTOH, those who care the most on that dissented.  

This case appears somewhat notable since it provides an exception to the expansive state sovereign immunity jurisprudence which in recent years often split by clear ideological lines.  Putting aside that I think the liberals were correct as a whole, we have another exception involving application of the federal eminent domain power.  I'm not really sure why it is clearly different from other powers, such as the Commerce Power, so on some level understand the dissent's sentiments.  Still, you take the limitations of overbroad doctrine when they are available.   

One thing that appears less controversial is that government "authorized the private condemnation of land for public works."  Kelo v. New London upset many since property was seized to give to private groups for a public purpose.  A pipeline is an easier case, but still, this shows that private parties will be involved in takings.  A case involving the contours of Kelo is now being examined by the Supreme Court to see if they want to take it.

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The fear from some is that Alito would have one of the two cases involving election regulations.  We shall see.  He did have an opinion involving the procedures required for the removal of "aliens" with Justice Breyer dissenting for the liberals.  Thomas/Kavanaugh would have simply declared the Supreme Court didn't have jurisdiction.   

Breyer labels the people involved "noncitizens" upfront but then goes back to calling them "aliens" (is this because that is the language of the statute? the Biden Administration has flagged they rather not use "alien").  Breyer notes the issue involved:

The question in this case is whether respondents are en-titled to a bond hearing while immigration authorities engage  in  the  lengthy  process  of  determining  whether  respondents  have  the  legal  right  (because  of  their  fear  of  persecution or torture) to have their removal withheld.

This general issue has arisen in the past and has both statutory and constitutional implications. The broadest argument would be that as "persons," the people here  have due process rights while being detained for a long period of time.  The back-up is that the statutory language leaves open this.  The Roberts Court have shown some concern for the rights of those that fall within the immigration law, but have their limits.  

And More: An amicus was appointed to defend the ruling below in one of the cases taken for review.  

More importantly, only four judges (five need) voted to grant an end of a stay in an important Biden Administration shadow docket affair.  As Kavanaugh, not one of the four noted:

"I  agree  with  the  District  Court  and  the  applicants  that  the  Centers  for  Disease  Control and  Prevention  exceeded its existing statutory  authority  by  issuing  a  nationwide  eviction moratorium."  

But, the Biden Administration said it won't be extended past the end of July.  Kavanaugh (who shouldn't be there) frames this as "only a few weeks" (or a month, you know, framing it differently), so doesn't think intervening now is necessary.  Roberts and the liberals didn't comment.  So, the denial of the stay is 5-4 with a sort of asterisk.  

I have seen some suggestion that unlike some sort of lack of Commerce Clause power or something, the statutory argument is more reasonable. How much is unclear to me.  As a general matter, the longer an emergency of sorts goes on, the stronger an argument that more specific legislation is needed in cases of this sort.  The details are up to debate.

SCOTUS Watch: Order List

The recent practice this term was for the Supreme Court to show after the weekly conference (or at least by Friday) on their calendar if there was going to be opinions the next week.

So, especially with the working term (let's say; the term itself officially ends when the next one begins in October) usually over at the end of June, people looked for when one or more opinion days (there being five opinions and never that many handed down in one day this term) would come.  Is Kavanaugh in charge of the calendar?  (Inside joke)

But, we never did get notice of opinion days last Friday.  No error: Monday morning brought with it only a longer than usual order list.  We have two per curiams, one regarding qualified immunity and the other the procedural rules in a regulatory taking case.  Sotomayor found another criminal case she flags as problematic.  And, Thomas thinks the medicinal marijuana case is even more wrong-minded given recent developments.  

See more here on the criminal justice cases.  As I note there, constitutionally, I do not think the federal government is acting wrongly as a matter of Commerce Clause power and the like on marijuana. On policy, I think states very well should have discretion, and marijuana as a matter of federal should simply be legal for consenting adults.  Constitutional principles factor in there.  But, it is not something the courts should get involved in to the degree of striking down current policy as a whole.  I put aside certain narrower questions such as medical advice etc.

Alito dissented for the High Federalists on one that to some degree loosened qualified immunity though it was technically a narrower procedural issue. QI continues to be something Court watchers are focused on since it is seen as an excessive means to have wrongdoers avoid just desserts.  As a comment suggests, we know that three dissented, but "officially" (Supreme Court reporter Kimberly Robinson recently refused to go along with this) that is all.  Another might have done silently.  

The Supreme Court took a case involving signage (a First Amendment issue that split the Kagan Court various ways) and another immigration case.  It did not (with Alito and Thomas dissenting without comment) take the trans student case (the actual person involved no longer a student for a while now).  So, after years of litigation, that appears to be done.  

I think there is little reason why SCOTUS couldn't tell us the end of last week what opinion days would be scheduled this week.  It isn't earth shattering or anything, but along with not providing audio of opinion announcements and references to justices' public appearances that can be accessed other places (such as a major Biden lecture), it seems a bit of needless arrogance on their part.  (On the latter, see Amy Howe's testimony below.)  

As of early afternoon, no update on next opinion day.  To be cont. 

[For whatever reason, it took until after 5PM at least, but we were informed that we will have an Opinion day tomorrow.  Not the end of the term -- again, not the TOTAL end, which is in early October.] 

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I might say more later, but to preview it, we will have the first substantive public meeting of the presidential commission on the Supreme Court on Wednesday.   I am hopeful this will be an educational process that will in some small way at least influence how things will go forward.  A podcast at High School SCOTUS on the cheerleader case had the teen moderator say basically none of her classmates knew about the case.  

As a general manner, that can be said about the public's understanding on Court matters.  There is general anger and passion (well earned) regarding how Republicans screwed over SCOTUS with the Trump nominations, demands for expanding the Court, or at least term limits.  But, there is a lot involved here, and a lot of ignorance.  

Hopefully, this commission will help, and Wednesday brings forth various testimony that informs. For those interested, there already is a lot of written testimony from various parties, including Amy Howe (SCOTUSBlog) and Kim Scheppele (comparing our constitutional system to other nations).  Maya Sen and others also write things that amount to support for term limits.  This is just a sampling.  Hopefully, there is a way written report to be released that summarizes all these interesting perspectives. 

Time Walker

This week's Svengoolie film was a cheesy 1980s film that was a combo mummy/sci-fi/teenage slasher type affair. It even had a late gratuitous shower scene that had to be censored.

The film starts out okay, if filled with a bunch of stupid college students (thus the actors are more age appropriate) and such "helping" the professor, who found a supposed mummy's tomb but apparently not having the funds for good help. The lead officer from Assault on Precinct 13 is one familiar face (and one of the few intelligent of the bunch). Then, it got tiresome with a lot of teenage hijink time filler before the final scenes. "To be continued." Nope.

It had a certain stupid charm, perhaps, as you waited for things to happen. And, we still have to wait to see who won the NYC mayoral race until all the votes come in for the ranked choice process to take place. Eric Adams is ahead by ten or something, but only has the low 30s. The hope is the minor libs will nearly all go to Wiley to make it much closer. Then, it is where Garcia and Yang (around 30%) votes go. Can't merely divide equally or something.

Various Thoughts

Biden and the Democrats had some real accomplishments though there is a lot more to address. One thing is infrastructure, which has been part of an extended back/forth with Republicans. As noted earlier, five agreed to part of it, to the degree that mattered. Biden said he still wants the rest. This resulted in drama. His response comes off as intelligent.

The Mets are in first place, but for a different reason than the Big V "baseball is back" thing, I'm basically depressed. There is so much bad baseball out there. The Mets can't hit and are still in first place in significant part for that reason. Yanks not doomed for that reason too. The Phils blew three saves (won one of the games) in a row. Watch the whole game and perhaps mistake laden finale overrides the rest? I'm not into it. I'm tired of bad baseball.

It is also somewhat amazing -- not really; after a while repeat affairs are not amazing -- that the same various things stress me. Like people not being able to reason things out that well. It's just human nature on some level. It still bothers me, including wrongful sarcasm. But, again, it's part of human nature. If you want to opine online, it's part of the deal.

SCOTUS Watch: 3/3

These three [of eight left] (SCOTUSBlog summaries) were covered on Friday with Thomas joining the liberals in the standing cases and the liberals splitting in the other two:

[1] In TransUnion, LLC v. Ramirez, the justices held 5-4 that only a plaintiff concretely harmed by a defendant’s violation of the Fair Credit Reporting Act has Article III standing to seek damages against that private defendant in federal court.  

Comment: Kavanaugh wrote this one and it has potential to restrain access to the federal courts. Like the administrative law type appointment/removal etc. questions, if somewhat more "judicial," it is troublesome Congress' power to set discretionary policy as they deem the needs require is being interfered with here. And, in a way that is likely to set up various confusions.  Like in the Takings Clause case, things like "concretely" is rather subjective.  Standing law is infamously arbitrary.

Thomas has a strong and blunt dissent that is straightforward and joined by the liberals except in a minor way.  Kagan basically finds yet again something precedent requires, but notes that the point of disagreement shouldn't matter much.  Thomas notes that the majority opinion in the long run might not be too helpful for the credit agency since it leaves open state lawsuits though the judges are concerned with their own power here.  

This is one of these cases where people who are intuitive notice that even if abortion rights still exist and such, the Barrett Court (to use Stevens' approach of labeling it with the latest confirmation) has moved things significantly.  It is a "limited" movement if you assume the Court was really going to move really far.  But, that's spinning things.

[2] In HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Association, the justices held 6-3 that under the Renewable Fuel Program’s fuel blending requirements for domestic refineries, a small refinery that previously received a hardship exemption may obtain an “extension” even if the refinery did not seek a hardship exemption every year after initially doing so. 

Comment:  The notable thing on some level here is that it is not only Barrett's first written dissent, but the guys are going against the girls. Both are somewhat trivial, of course, but also Breyer can at times be more "conservative" or otherwise stand out from Sotomayor and Kagan.  How that applies here is unclear, but you can see divisions there. I won't pretend to know who is right here; it is basic use of judicial power to provide clear answers among reasonable options.  But, both Trump appointees (Gorsuch wrote the majority) was sure textual analysis was clear one way or the other.  As usual, as noted in Strict Scrutiny Podcast, not really.

[3] In Yellen v. Confederated Tribes of the Chehalis Reservation, the justices held 6-3 that Alaska Native Corporations are “Indian tribe[s]” under the Indian Self-Determination and Education Assistance Act and thus eligible for funding available to “Tribal governments” under Title V of the Coronavirus Aid, Relief, and Economic Security Act. 

Comment:  Sotomayor, Happy Birthday, wrote the majority here, tossing in a fish related example (SSP really hated it) that both the majority and dissent went with. Gorsuch dissented, which might have miffed him given his role as the "tribal judge," but the issue here was how to allot funds between various tribes.  So, even though Native American issues is one area where Gorsuch stands out some -- putting aside certain cases without much ideological heat -- it is not a straightforward issue. 

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Five cases left, including a major voting rights case (or two; there is a disclosure case too). On that front, there is also action outside the courts as seen by the filibustering of debate on a major voting rights bill. Also, the Garland Justice Department Friday morning announced they will sue Georgia, alleging their new voting restriction law is discriminatory.  

Thursday was the last scheduled conference until the "long" conference in September preps for the new term in October.  

We then (people who keep an eye on these things) waited for the Supreme Court to schedule the next opinion day. And, waited.  Day ended with nothing.

Biden and Dems Keep Busy

They might at some point have a break -- at least for the July 4th weekend -- but Biden and the Democrats have kept busy. My final SCOTUS post for this week will reference voting rights. It has also been noted that (if a small sample, but good start) they have been quick out of the box to confirm federal judges.

The ideal, as I noted in the past, was to have a bipartisan 1/6 Commission. But, Republican senators filibustered that. So, Pelosi announced there will be a select committee. Note that with the 50/50 Senate, the rules limit unilateral subpoena power on that end. The select committee will be focused attempt to answer questions and provide roads forward.

After a huge Big V relief law that by itself could be a BFD, the next big thing was an infrastructure bill. This has been a long tedious process and five Republicans (to the degree that matters) at least signed on to part of the goal. Allowing Republicans (and Manchin/Sinema) to claim some success. But, Dems and Biden (with Manchin/Sinema apparently okay with it) say it will only be part of the deal with the rest by reconciliation (avoiding the filibuster). Various Republicans whined. Will the first part hold?

SCOTUS: Part 2 of Three (Constitutional Concerns)

SCOTUSBlog provides these thumbnail summaries of the four Supreme Court cases handed down today (SCOTUS itself has enhanced links to the decision -- if you wave the cursor over the opinion, you get a thumbnail summary):

In Mahanoy Area School District v. B.L., the justices held 8-1 that the school district’s decision to suspend student Brandi Levy from the cheerleading team for posting vulgar language and gestures critical of the school to social media (outside of school hours and away from campus) violates the First Amendment.

In Cedar Point Nursery v. Hassid, the justices held 6-3 that a California regulation granting labor organizations a “right to take access” to an agricultural employer’s property to solicit support for unionization constitutes a per se physical taking.

In Lange v. California, the justices held that, under the Fourth Amendment, pursuit of a fleeing misdemeanor suspect does not always or categorically qualify as an exigent circumstance justifying a warrantless entry into a home.

In Collins v. Yellen, the justices held 7-2 that the Housing and Economic Recovery Act of 2008’s structure, which restricts the president’s power to remove the Federal Housing Finance Agency Director, violates the separation of powers.

There are various splits if more limited full dissents (liberals dissent in Hassid, Thomas dissents in the Case of the Cursing Cheerleader, no one dissents (though three don't go along on certain things) in the 4A case; the Yellen case has a more fractured nature with Sotomayor (with Breyer) with the strongest dissent energy ... and even there finds something to join too.

Fuck that: During the oral argument, Breyer really hoped that the cheerleader case would not try to change the law much. He got the opinion and wrote around eleven pages to not do much. Off campus speech is less likely to be something schools should address, but that isn't some complete statement; here, however, the school's interest was not strong enough. Alito (with Gorsuch) had a longer concurrence that was basically temperate. Thomas' dissent was not surprising (not a big fan of students' rights) but was even shorter than Breyer's opinion.

I'm supportive of the general principle of the majority opinion on both ends -- don't do much here and off campus speech is generally less something public schools should address. But, it was too dismissive (about a paragraph) in saying her little rant had no real effect on team morale. And, that is all the school addressed here -- she wasn't expelled. The school was concerned about the specific effect of her actions on the team. If she was suspended from the team for a few weeks, e.g., I don't think the Supreme Court should intervened. But, in principle, why not given the opinion? It wasn't as simple as all that.

Fourth Amendment: A minor noise related crime allegation served as an opening for the police to get into someone's home and find evidence of a much more serious offense. Kagan for six said that merely addressing a "fleeing suspect" type concern was not enough to do that in the case of a minor crime. As a blanket rule. She spent some time to defend this. Thomas concurred separately. Roberts (with Alito) spent some time saying it should be, but again concurs. So, the difference is unclear.

Takings Stupidity: Each opinion today has a constitutional component as compared to statutory interpretation. Roberts took a takings case involving a state requirement that union organizers get access. The liberals dissented. Kavanaugh concurred but noted they could have went with his desired more limited approach. If the union lost, yes, that is how it should have went down. He still went fully along with Roberts.

The government requires a range of things that involves regulations that bring forth unwanted visitors to employer's work places and property. This should have been seen as a suitable example. Roberts went another way with a strong Takings Clause rule. And, he added (with no actual discussion) that health regulations or such were different since that either was for the public welfare or was a trade-off employers had to accept. Bullshit. Unions are in place for public labor peace, including for the employer.

Separation of Powers: The Roberts Court had various opinions regarding the proper rules for appointment, removal, and reach of power of people in the administrative state. We just had one involving patent judges. The last case dealt with this general area, with over eighty pages of opinions, and again had a dubious result.

Kagan went along this time more than the other two liberals for the sake of stare decisis but thought it went too far. Sotomayor joined part of it but was more open to saying the constitutional result was wrong. Biden said "okay ... I'm going to use it to replace the guy!" I still am generally with Sotomayor that this whole conservative enterprise is dubious.

The case is also about a more limited issue which Alito for the Court felt was too limited to leave it at that. There are now eight opinions left, so let's just say Friday won't be the last opinion day. 

ETA: I noted in the last part that SCOTUS edited one opinion and apparently it was part of an editing check -- others were edited too, including Sotomayor's statement on not taking the draft case.  Again, one of the additions in recent terms is the Court flags edits of their opinions, which tend to be typo sort of things, but not quite cool that they used to not actually show when they changed something.  They also have online links to add on that page.

NYC Primary Day

His strong showing reflected a broad, old-school political coalition that united Black and Latino voters, unions and a broad swath of the city outside Manhattan.

Eric Adams, who I ranked fifth (something new under the sun), currently holds the plurality (if in the 30s) in the NYC mayoral race. Maya Wiley is in second with Kathyrn Garcia third. Yang, who had no business being made out as a credible choice, conceded. Various others, including someone like Scott Stringer -- who early on in theory had a decent shot -- basically could/should with no real chance. 

Eric Adams has various things going for him. He has a power base in populous Brooklyn, with long experience in NYC government.  Adams (though one Talking Points Memo piece in my view dubiously at best labeled him as "the moderate choice" -- that's Garcia) has various Reaganite Democrat / conservative vibes, including pro-police comments (with enough reform comments to CYA).  

I see by that article he has union support.  And, he has a lot of black support, including from those that are okay with a more conservative tough on crime sentiment.  He is basically the old school machine choice.  New York City is framed as some liberal bastion, but there is a reason why for years it also had Republican / conservative in various ways even while Democratic or not full fledged progressive mayors.  I have basically lived with it, but there has been a sort of depressing limit present there.  

Ranked choice voting means that we won't find out how various races will work out to maybe early July (or the end of June at least) since absentee votes have to factor in when the ranking process is put into motion.  This means unless a candidate has a dominating lead -- Curtis Sliwa, the Republican mayoral candidate is an example -- races are not decided yet.  Some might lean a certain way.  Election Day -- shades of Biden -- suddenly becomes a tad less final.  

I have a something "inside" part here -- well kinda -- since for the last few cycles, I served as a poll worker. When you go to the table to check in and get your ballots, I was there now three times.  It's charming really to be inside the system.  When I was a census worker, trying to find out about people who didn't fill out the census, it was a rather tedious/depressing enterprise much of the time. Next door neighbors claimed not to know anything about their neighbors. Here is it a bit less that. 

A few people still don't understand that concept of primaries -- well, at least ones not "open" -- if you are not registered as a Democrat or Republican (though there are some major city-wide races, and there is a conservative party office a few blocks away -- so even the city council race might in theory be competitive there) the only primary in my district was for mayor here) you don't get a chance to vote.  

There was flagged to be some good results (it wasn't just a NYC primary day), including a good chance for the AOC endorsed comptroller.  Likewise, if Adams wins (blah), the City Council looks to be more progressive, and perhaps (again, I don't pay enough attention to local politics) that will provide a way to balance any conservative excesses he has.  And, especially since police stuff doesn't affect me personally and such (not belittling it; just being honest), Adams very well might not come off as that bad.  He is a vegan.  Still, I rather Wiley or Garcia.  

And, I'm not ready to concede.  As to other races, my city council choice (Marjorie Velázquez) has been declared the winner.  A candidate has to have over 50% to win and two Bronx borough candidates (not my assembly woman and second choice) are in the 30s.  Comptroller is leaning. Since there was really one candidate, public advocate also was decided.  I'm not going to even try right now to look up the results of the race for delegates to the local judicial convention.  

What about ranked choice voting, beyond how it will delay the final results?  In the mayoral race, if there was a 40% floor, we might have had a run-off.  A few people at the polling place probably were a bit confused about it, even with the colorful information cards that included (for whatever reason) a pigeon with a mask on.  I think as a whole it is a good idea though five choices probably is a bit much.  

Late ETA: The next week brought preliminary official results, mixed with a flub by the NYC Board of Elections that got them a lot of scorn. But, ranked choice means the final results are still pending, though Eric Adams has a slight lead now.  

Ranked choice doesn't apply to one big (state) race: Manhattan DA.  Alvin Bragg seems to have won that if by a small plurality. No run-off election.  That is questionable in the end.  Still, a career prosecutor with white collar crime experience is a good person to take over the Trump Organization prosecution, now that the organization and a top executive are indicted. With more perhaps to come.  

Bragg would be the first black Manhattan DA and has some progressive bona fides mixed with some middle of the road ones. 

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We also had the true opening U.S. Senate salvo regarding the For the People Act happening yesterday -- the move to start debate. Let me repeat. DEBATE, after Manchin found a compromise he was okay with.  

Not a SINGLE FUCKING REPUBLICAN voted to do that.  NOT ONE.  Note that under the rules -- which on debate at least should change (you don't need to "nuke" the filibuster to change it significantly) -- sixty would be needed. So, if Lisa M. (who supported Manchin to some extent) said "okay, I'm okay with mere debate") it would basically be symbolic.  Thus, again, FUCK YOU.  Can we please focus are fire on them?  Not just the usual suspects either.  Enough with "the Democrats ..."

The link suggests that maybe, seems hopeless, but maybe, there is still some light left.  Like hoping RBG wouldn't die, what more can one say there?  Admitting it's bad can be useful in deciding how to act, but simply assuming defeat a few months after you gain power remains not where I am at as a general matter in Biden/Democratic Congress positioning.

I do realize the pessimism.  Unless they actually do something -- why, why can't they at least change the filibuster rules for mere debate, for instance? what harm does that give you even if you are a Manchin or Sinema?  -- all of this outrage seems largely hot air.  Not totally -- (1) it's valid to be pissed off (2) there are battles to be won and united outrage etc. can help there.  

But, yes, you have to actually DO SOMETHING.  The Biden Administration does have some power to enforce the current voting rights laws, which in certain cases is more exciting than let's say the usual along the edges gun regulation deal (which to be fair is not merely a trivial saying the right things enterprise).  With the breadth of the problem, like police reform, an activist Justice Department can do some real good.

Still, if voting is so very important, if Republicans as a unit are FUCKING HORRIBLE (the caps and bold are to underline the point ... at some point, some line is crossed ... Trump was one such line ... this is as well), mere outrage is not enough.  And, yes, merely screaming "DO SOMETHING!" can be immature. 

But, it can also be justified. 

SCOTUS Watch: Part 1 of At Least Three

Orders: The order list was not notable.  After I first posted a form of this entry (so, you know, this will be edited some over the day probably), for whatever reason, they dropped an additional order that formally nixes challenge to Trump-era "remain in Mexico" policy after Biden administration abandons the policy.  Without dissent, it is declared moot.  We are left to guess, but this has a feel of them saying this order is a bit more notable, which is why it is separate. 

Student Athletes: So, moving to opinions, the most newsworthy one [typos later found] is not too surprising -- NCAA can not deny student athletes the ability to get certain types of compensation. Gorsuch adds a bit on how they only were judges, so the opinion only goes so far.  Blah blah.  Yes, I appreciate that sentiment up to a point, but not sure how much I believe it coming from some people.

I was somewhat more sympathetic to non-profit rules, but it seems even there the rules were applied in an unreasonable way. Congress can always fix this.  A bit more -- Kavanaugh had brief concurrence that is getting support saying that the athletes have a strong case.  Not the first time his interest in sports got some attention.  But, college athletes is complicated.  For instance, tuition, training, experience, and a chance to be pick for a professional league all provide some sort of "compensation" that is not going to be treated the same way as some other businesses. 

Appointments: Maybe, the judges should have took that judicial restraint mood to heart in another case involving the rules for appointing patent judges. Roberts for a fractured Court with Thomas joined (in part) by the liberals dissenting on the merits. [Barrett majority alert.]The Roberts Courts have been active in finding rules for agency removal and appointments that don't quite seem to be there. Like we don't need MORE petty confirmations.  And, even if that is not specifically at issue, the administrative state had various types of positions where some flexibility is both allowed and warranted.  Unless clearly compelled, Congress should have a lot of flexibility here to set forth the rules. 

And Also: The other case regarded rules for class actions. Separately, Sotomayor and the High Federalists didn't go along all the way with Barrett's opinion. She shouldn't be there. In a just world, it would be dealt with somehow. Anyway, this term, her vote mattered for the shadow docket. More here on why her vote in the the patents case was important.  Twelve cases left.

Odds and Ends

Book: Years back, I read the book and saw the film (at least one; I recall the leads of the film and a couple scenes of the story) version of Monsignor Quixote. A later work of Graham Greene, it is an amusing and somewhat bittersweet homage to the classical work. I enjoyed the re-reading (I recall the cover too; believe I once had the book).

Champ Biden: The older German Shephard of President Biden, obtained as a sort of victory when he became vice president, Champ Biden has died at thirteen. The President had a touching tweet about it, including a bit about who he will miss him. The leader of Taiwan and many other dog lovers gave their condolences.

Also: Alicia Witt has a good new music video. She has some good ones. When doing certain announcements, Jen Psaki is the "White House Spokesperson" and not the "Press Secretary." Didn't get into this week's Svengoolie. And, a preview: yes, let's not speak of this SCOTUS term as TOO satisfactory. A sort of chill wind blows.

The Cold Case Act

I already addressed Juneteenth, but a look at the White House nominations had a somewhat related tidbit. (It is nice to see who is being appointed. Also, again, I wish VP Harris had her own page with her current schedule and so forth. All I see is a bio page.)

Reference is made a "Civil Rights Cold Case Records Review Board." This was a project of something signed into law over two years ago, a Sen. Doug Jones baby (with others; yes, Ted Cruz too). Not too suprisingly (though somewhat stupidly; it would have been an easy bone to throw) Trump didn't get around to fill the board, which would help "collect and release documents detailing the unsolved killings of the civil rights era."

President Biden, whose administration early on put racism (along with the Big V, climate change, and the economy) as his four primary agenda items. And, each has been addressed. This would be a suitable part that addresses history, like the Tulsa massarcre and Juneteenth. The fact high school students played a key part in bringing the whole thing into existence just adds more. It is about time the positions are filled.

We Play Ourselves

This might be the sort of thing known as "meta" or something. A playwright gets an award and a chance to produce her play. Bad review and she reacts badly. Runs away to LA and gets involved with a movie-maker who is let's say a bitch. Cass (who everyone thinks is "Cath") seems a step behind realizing how fake what is supposedly a "documentary" of some sort is. Things get more absurd (her play was supposed to be absurd theater) when she goes back home and it all ends up with a twisted Easter puppet show.

It all escalates with various absurd events that on some level seems so absurd to be intentionally amusing (an abused playwright who is successful with absurd stuff is but one thing). Cass' dealing with the filmmaker goes on a bit too long, but it's all readable and so forth to keep my interest. The author has experience in plays and television, so has authority on some of the stuff she writes about. For some reason, her website is being blocked by my virus software. But, this is her first full length novel, and it covers a lot of ground.

I don't read much fiction, so it's part by chance that I found and read it thru. Check it out.

Other Stuff Happens

With so much SCOTUS stuff, feel there should be a "Meanwhile" standard as in Stephen Colbert's show, but less lame. Sadly, that segment never seems to work, with each individual bit not funny and at times not even timed that well. I'm not sure if that's just me, but it doesn't work for me.

Juneteenth: On June 19, 1865, the official Union control of Texas was declared for the purposes of the Emancipation Proclamation, meaning the end of slavery in that state.  This was honored for its specific events, but also its wider implications about freedom and so on. Thus, "Juneteenth" was born, and eventually every state (Hawaii in the process) but the Dakotas in some fashion declared it an official holiday. 

It was not the end of slavery -- that took the ratification of the Thirteenth Amendment in December, the EP not applicable to areas not under the Confederacy at the time of its proclamation at the beginning of 1863 (like Kentucky, though it was actually declared part of the Confederacy by the "country" itself along with Missouri). But, again, the day has wider implications. And, the same applies to the now federal holiday. 

“Juneteenth National Independence Day Act,” designates Juneteenth National Independence Day as a legal public holiday.  It was held up by Sen. Ron Johnson (sure) in part allegedly because he didn't want  another federal holiday, cost-wise and all. One article (won't even link; who knows) says he was even willing to trade Columbus Day (why not?) money-wise.  Anyway, in the end only fourteen Republicans voted against it, even some reprobates went along.  It's cost!  It's confusion with Independence Day!  (mildly see the point there --- why not Freedom Day -- but it was Independence for slaves) It's critical race theory!  

Yeah sure.  This is prime Biden/Harris material and sure enough that slavery very well deserves its own day.  It being close to Independence Day makes some disagree of sense too.  You can even talk about Father's Day, including black fathers, and the timing might be notable.  

Voting: I referenced Sen. Manchin's last proposed compromised on voting yesterday.  I wasn't the only one who supported it, even if the usual Twitter suspects talked about "crumbs."  Stacey Abrams supported it.  Queen.  And, Sen. Blunt, who at times seems serious, basically suggested now the whole thing should just be named after her.  

It was part of the final blow, suggesting not even the gentle lady from Alaska (who Joe latched onto as the ONE Republican supportive, hey bipartisan!) would vote to more things forward.  At first, it just looked like Mitch and other assholes.  But, then others who are of course assholes too, if somewhat less blunt (ha ha) about it, came out too.  Still, I saw that Schumer started the process to call a major voting rights case to a vote.

Attorney General Garland, as noted before, had a big speech talking about the historical effects to fight for voting rights.  And, that his office will hire a lot more people to do so.  There are things they can do now, but various people who are in the know as do others more average like myself think a lot more needs to be done.  The question is if actual legislation can be passed.  We are at a key moment and we will have to see.  

It's easy just to be pessimistic, since it doesn't get your hopes up. Shades of a  too cool for school teen who doesn't want to show they care.  But, a lot of water is under the bridge now, and things like Mitch saying he won't even confirm justices in 2023 if given the chance (showing the importance of line drawing in 2016), really show how blatant the situation is.  They already rejected the 1/6 Commission.  And, what will happen to move the needle might not even happen in June.  So, it is painful, of course.

AUMF 2002: One other thing that should not be ignored is the House, by an actual bipartisan vote (almost fifty Republicans voted for it), overturned the authorization of military force tied to the invasion of Iraq. The authorization is laying there, while the executive uses it along with other reasoning (self-defense or whatever) to deal with a very different situation.  

The power of Congress over war and peace here has been for a long time to a significant degree -- not totally mind you -- delegated to the executive. And, the power of a unitary executive was recognized from the Founding anyway.  It is therefore significant if Congress can change gears here, especially since at least in a broad sense the Biden Administration is on board.  The tough part is what to use next.  

But, like  border issues, you have to bite the bullet and try to change a situation that has issues.  The Senate here is a question mark for me. Various Republicans hate that Biden said he will pull out of Afghanistan.  Still, foreign policy like this has less ability to be a "can't touch this" and you can imagine it is possible enough Republicans to join at least ending the 2002 AUMF (not having any replacement is dubious, but it is not impossible -- the executive can still fill in basic rules to deal with use of force to fill in a gap).  

And, that would be a real step forward.

SCOTUS Watch: Two Biggies, More Punting

And she understands something else: that on today’s Supreme Court, she is fated to be on the losing side of many of the issues she cares most about. So her project, it seems to me, is to make legible, for these times and in times to come, the context for the court’s decisions and the consequences likely to flow from them. Winners should do this, too, of course, but these days they often don’t. Losers need to, if they want to contribute something that matters to events they can’t control. Justice Sotomayor’s contribution is to tell us what she knows. Our obligation is to pay attention.

Linda Greenhouse's column today was about Justice Sotomayor, who had a separate opinion today for the liberals making sure to say "whoa there" concerning how far an "aliens torts" statute should go. Thomas for everyone but Alito (who did not have a great day) said the claim here should be rejected, since it did not have enough of a connection to domestic (U.S.) activity. She also nose counts to five regarding its protection to corporations.  

[Personally, I'm sympathetic in this case regarding applying a statute from 1790 or something to the current world narrowly at least category-wise  -- Congress should update it. ]

The Alien Torts Statute has been used by some human rights clients in the last view decades, but the Supreme Court consistently has defined it narrowly.  Liberal justices  pushed to leave more open, so it basically has been a fight to see what's left.  The ruling to my understanding is not really a surprise though the Sotomayor nose counting might be notable.  So, it was for most the least important of today's trio.  Fifteen left.  

===

The latest, and most stupid (even supporters of the past ones thought so), challenge to ACA that reached SCOTUS came first.  Last time, Roberts dealt with it and basically said "stop it; we aren't going to knock it down."  The idea was that maybe he would do it again, but toss in something like saying the "mandate" (even without a tax in place) was unconstitutional or something.  Breyer had the opinion instead and just said "no standing."  Thomas went along, even if he wasn't THAT happy about it.  Only Alito (with Gorsuch) dissent.   ACA  holds.  BFD long term.

(A stickler with loose standing principles might argue that there is enough here for standing, but the rules are so inconsistently applied, it's hard to carp too much.  Yes, the merits are easy, but a few judges -- each of the tainted people I don't want to call "justices" were court of appeals judges so that seems valid -- disagree. So, partially since the litigants didn't make a clear showing, even if possibly they could, Breyer's opinion is valid.)  

===

The last case, to quote Amy Howe, held that "Philadelphia violated the First Amendment’s free exercise clause when the city stopped working with a Catholic organization that refused to certify same-sex couples as potential foster parents."  The result is not surprising. The fact it was unanimous with no liberal justice at all (not even Sotomayor) writing separately is not.   The whole thing is under twenty pages. So why is the .pdf over 100?  Well, Alito wrote a really long concurrence.  

The concurrences are suggestive. The High Federalists (Alito, Gorsuch and Thomas) basically want to overturn Oregon v. Smith. Thomas wasn't around when Smith was handed down, but did not seem to have an issue with it when Boerne was handed down and O'Connor, Souter and Breyer were willing to re-examine it.  We saw with the Big V cases what this might entail -- special rules benefiting religious exercise in the name of avoiding "discrimination."   And, allowing it in another way.

Barrett and Kavanaugh was open to changing the law, but didn't quite know how.  So, since it wasn't deemed necessary here, they went along with Roberts. Avoiding a paragraph questioning Smith, Breyer joined Barrett's short concurrence.  Let me add to her questioning of the Free Exercise Clause being merely an anti-discrimination clause.  Sure.  But, what does that mean?  Ministerial exemptions?  Allowance but not requiring religious exemptions? No coercion?  Hybrid rights like raising children in a faith? I agree it isn't just discrimination, but how?

The Roberts opinion, like the Masterpiece Cakeshop opinion, seems to be a negotiated punt job to let a specific plaintiff win without doing too much.  But, as there for a somewhat different reason, the whole exercise is not too convincing.  A basic part is saying foster care isn't really a public accommodation, and as applied here, the anti-discrimination concern was limited.  If so, how limited is the opinion to the facts as suggested by another part of the opinion?  Best you can get can be not that good.

If some locality has a law without exemptions (this one does and this was damning for nuanced reasons), could they do the same thing as Philadelphia?  Could Philadelphia itself just re-write things?  And, what about a bit about how private companies are key for foster care.  Is that really true?  Can't it just be public?  And, the opinion notes the law burdens free exercise, which puts the government on some notice.  The law recall resists the government reaching out to bring in certain religious institutions in.  Smith seemed to cabin the unemployment exemption cases; recent cases seem to say government services broadly have to include religious actors, even when trying to avoid government funding of religion or to resist discrimination.

I am wary of the result and wish -- like last time -- separate opinions could have at the very least underline that what Philadelphia was trying to do was important and could be done if in another way. The majority opinion barely said the first and it's again unclear how limited it really is regarding the second.  And, the breadth of its doctrine on religious liberty will largely rely on three tainted seats, part of a Republican packing job.  But, it's okay when Republicans do it!

The thinly argued majority opinion again makes me concerned here.  The Law, Rights and Religion Project, for instance provides a bit more clarity on why there are exemptions in place in the foster care law: "this exception was created to allow contracting agencies to sometimes take the race or disability status of a potential parent into account when making a child placement." So, a racist might not make a good fit.  (To cite an email update I received.)  How this matters here is unclear, but is used as a sort of gotcha to in a "minimalist" way strike down this law.  

Bit More: One account noted that there are many providers for foster care so children will get placed and not go to Catholic groups anyway.  This sounds a bit like the "there are enough wedding bakers around" argument or something. 

The basic principle here is for the state not to be involved in discrimination, giving it aid and comfort.  Trying to apply a "not enough of a burden" or "enough alternatives" test is hard to apply along margins and violates the basic principle in general.  Anyway, as Gorsuch notes -- asshole has a point -- the overall reasoning is just garbled or just unconvincing.

A few spoke of Roberts "wizardry," but besides noting he has already been in dissent this term, I am not particularly impressed. The liberals are an easy sell as a defensive mechanism (though some argue in the long run, this sort of thing can be counterproductive) while Barrett/Kavanaugh (already Roberts-focused and open to cushioning the blow strategies) can easily be sold on the fact that a new rule is hard, plus do they really want to do it in a case where they might look like bigots?  

This sort of avoidance mechanism in practice helps religious plaintiffs, especially with friendly judges, while they have plenty of time.  And, I'm not sure how much is lost here -- again, results suggest net avoiding big wins in these cases still helps religious liberty claims. So, my position is still "calm down on that wizard" stuff. Plus, the opinion is blah. 

 ==

Seems a lot of opinions left with a week and half (including the very end of the month) of June.  There is a major voting case mixed in there, while Congress (especially the Senate) works on voting rights.  Sen. Manchin submitted a memo that provided a pretty good list, if leaving out some things.  But, it still would need Republican support to reach sixty, or Democratic support (with any Republicans?) to change the filibuster.  

And, of course, there's Breyer.  Will today's opinions be deemed "optimistic" by him, leading him to stay on?  Past discussion, including Mitch McConnell saying Republican control would make filling the seat even in 2003 dubious, underlines that will be fucking stupid.  We are left to wait.  That includes to the 2021 Term, which promises to be a bit more eventful than this sort of "wait and see" exercise. 

===

Supreme Court has scheduled three more opinion days -- Monday, Wednesday, Friday with another Order Day the following Monday.  Each Monday has orders; the second is per previous practice likely a "clean-up" order day to finish off the term.  Fifteen opinions in three days is five each, after they continuously had one or two day opinions.  Sigh.  

There was going to be two executions in South Carolina this month, but the state court said a state law requires actual procedures in place to allow for a firing squad option.  So not yet. Again, that has bad optics, but for the actual prisoner, it might be a better call than electrocution and lethal injection.  Lethal injection also raises medical ethics problems.  Or, we can just not have executions, like that state avoided for around a decade. 

Big V Restrictions Loosening Some More

Red state vaccine numbers might be too low, but things continue ever so slowly gone back to normal. My local library (Morris Park) is now open. When I went to give blood today, I wasn't asked to get a temperature check first like in the past (did wear mask). Colbert is back in front of a live (vaccinated) audience. The Mets will soon have full attendance. Been a few weeks or so with full attendance at White House press briefings (though Biden is in Europe so Psaki not doing them now). Still wearing masks inside in public places, but time marches on.

SCOTUS Watch: Sotomayor Concurs In Part

Orders: The big news is that SCOTUS asked the Biden Administration for its opinion in a big affirmative action case, delaying a final decision regarding them taking it in a term already with a big abortion and guns case.

Opinions: Kavanaugh and Thomas wrote criminal justice statutory opinions that everyone but Sotomayor (in part) joined. Sotomayor flagged one case was limited while in the other challenged the majority's history on the crack-to-powder cocaine law. She also said the result is illogical (if fixable) but compelled by the text. Not that the Administration, its sponsors and others thought so. Maybe, not so obvious?

Other: Good interview by High School SCOTUS of Melissa Murray, who would be a great federal judge. The Progressive Constitution thing is well worth checking out too. Meanwhile, Graveyard Mitch says if Republicans gain control even filling judicial seats in 2023 is dubious. Hey, Breyer ... He's rubbing our faces it now. Come on, Dems!

SCOTUS Watch: Waiting for Monday

Timbs: A blog flagged what appears to be the end of a case from 2019 that incorporated the Excessive Fines Clause. This seemed to have been done some time back (at least in dicta) and even the state tried to win on narrow grounds.  The obvious nature of the whole thing was suggested by dealing with the whole question in around ten pages with only Thomas (citing his Privileges or Immunity Clause energy) showing any real disagreement.

What was not decided was if the seizure of an expensive Land Rover was excessive, which the state court now did.  As I spelled out in a comment at the link, I found this dubious.  This is one of those cases where libertarian talk makes me feel a tad bit conservative.  Unlike the partial dissent there, I'm not going start talking about the evils of heroin.  But, this guy did repeatedly buy it, using his vehicle in the process. Forfeiture cases have resulted in various injustices.  This doesn't really seem to be one of them.

But, if the multi-factor test used here can result in justice in more sympathetic cases, fine enough.  This case also shows that the Supreme Court ruling often is not the end of the line.  There regularly is more things to decide as here.  Also, state law questions can still be open, which results sometimes relief for a defendant that loses in the U.S. Supreme Court. 

Kagan v. Kavanaugh: Kagan "owning" Kavanaugh in the ACCA case that dropped has received some commentary (including the latest Strict Scrutiny Podcast, Leah Litman particularly amused -- she enjoys that sort of thing PLUS she loves ACCA anyway and the defendant won to boot).  Kagan in general is a good writer (Roberts is too; Breyer and Sotomayor often are mechanical though Sotomayor can shine separately).  She also from early on had the snark, at times perhaps a bit much.  YMMV.

I do wonder how other nations view some of our court opinions. They can be somewhat personal, especially as they spar with each other.  Sometimes, that gets a bit much, even if you like the results.  A liberal dissent can be over the top, even counterproductive, suggesting the majority means more than it does.  And, just lashing out at it.  It also might come off as just hopeless, a woeful voice that cries from the wilderness.  Brennan had that quality at times.  

This comes off worse if the dissent is just wrong.  But, personally, it is not great even if it is right.  There is a sort of cheap thrill that might lead you to feel bad about yourself in the morning.  Did Kagan go too far?  Who is to say?  One thing that is flagged by the article -- though the guy is usually pessimistic anyway -- is the idea that it's a sign Kagan is done trying to satisfy Kavanaugh.  I'm sure that will be a continuing effort, some cases left where she can help craft a five person majority (at least).  Maybe not so much in the big cases remaining.  We shall see.

One area that Kagan has joined the remaining liberals more often are death penalty cases.  She often did not do so particularly in the denial of cert. or stay type cases.  Now, she is even starting to do so there.  The federal execution cases and a few particularly blatant cases where you might have had a five justice majority of Kennedy and the liberals in one or more cases have arisen there where she dissented.  She as the article notes has brought the bite in more than one full court opinion/dissent too.  

The sixth vote of the currently tainted Court changes the dynamic here, and there are also signs that it will show more teeth in the 2021 Term.  And, the same with the liberals.  A final note is that the Kagan opinion in the ACCA case was a plurality with Gorsuch joining in while Thomas concurred separately.  This seemed to bother Kavanaugh too, which is not really surprising since hey, Thomas is a conservative.  And, Thomas in a brief concurrence basically took a pragmatic approach (like who is he? Breyer?), admitting a precedent was in his view wrongly decided, but basically for now ruling another way would make things too hard for the lower courts.

No wonder Kavanaugh was miffed.  Kagan also could bring the snark since she only had to keep four on board, and Gorsuch likes to have some fun anyways.  (He at times seems to be having a ball ... why shouldn't he? He stole it fair and square apparently and he's not going anywhere.)  Maybe, she would have toned it down if Roberts or someone else was on board.  This sort of guesswork is something of a parlor game, fun it might be.  

On that level, I'll end this preview of the start of the final sprint -- over twenty opinions in less than that many days (it would be novel for them to linger into July) -- with a reminder that it's fun and interesting to hypothesize about court politics, but it's best to do so with a grain of salt. People often lay it on a bit too thick.  On that front, I like Kate Shaw on Strict Scrutiny -- she's surely liberal and all (hey, she's the wife of Chris Hayes), but is somewhat more restrained than her partners. 

----

New York Court of Appeals:  It isn't as important as the U.S. Supreme Court, and fourteen years is not life tenure, but Gov. "fuck this guy never is going to be impeached, let's just fucking admit it" Cuomo pissed off liberals some more with his choices to fill some vacancies to the highest state court (the "Supreme Court" is the lowest).  I noted the voters' job of choosing Delegates to the Judicial Convention 80th Assembly District. Whatever they do.  But, Cuomo has a lot of power here.

The two latest nominees received pushback, especially the prosecutor. The New York legislature had some end of term business.  Perhaps, wanting to get things done, the criticized prosecutor was quickly processed with my own Sen. Biaggi from what I can tell being the only one who voted against her in committee.  The nominee resisted actually talking about her record, deeming policy questions not appropriate for nomination hearings. Sounds familiar.  She criticized people for calling her out for being a prosecutor, though these days there are progressive prosecutors. It is her type.

[An article suggests only one of the two got pushback but one of those links came out against both.  The prosecutor did get more opposition though the Democrats in the legislature -- including someone running for Manhattan borough president (Brad Holyman) -- were weak willed in providing much opposition.  Gov. Cuomo nominating her late helped.

If the article is right in basically calling out BH for trying to have it both ways in a key battle, it's a rather dubious move in a race with various candidates.  One criminal justice advocate was upset she voted for him absentee when she found out how he acted.  We should be able to expect more of NY Dems in these cases.]

I rely on others here to judge the quality of these nominees, including the former prosecutor.  I trust Biaggi's judgment as a whole there as well as other criminal justice warriors who are critical.  It is clear to me at least that it was appropriate to get the opinions of the nominees, the artificial division of judge and other officer here fictional.  And, recent years particularly has shown the importance of local and state government in these areas. But, it's true in general too.

I have rarely had much of an occasion to deal with New York courts -- one exception were same sex marriage matters -- but as with the pending Manhattan DA race, they are clearly important.  And, these nominees underline, especially with full Democratic control of the state legislature, the limitations of the current governor. 

Various Tidbits

Mets: They are handling a bunch of injuries and troubles with their back-end starters rather well with even Joey L. starting to give them something. They are assisted by the rest of the division being at best mediocre (do wish for better competition myself), but not the Mets' problem. They already won four of six games versus the Padres, not having a bad game yet.

Svengoolie: How to Make A Monster was the movie this week and it was okay. I was only half watching, but it wasn't as bad as one movie guide said. It actually was about a makeup artist finding a way to get revenge by using two "monsters" he created against his enemies. He wind up being a bit unhinged himself. It sort of was an interesting twist on things.

Garland: We continue to have stuff coming out about the Trump Administration and concerns that not enough will be done by the Garland Justice Department and others. For instance, it is continuing to defend the idea a libel trial arising from a woman who accused him of rape should be dismissed since Trump was acting as a federal employee when he said it. Many felt this was dubious. Ditto. Garland's voting enforcement speech felt more promising. I don't know net how much to be depressed; guess a bit too early to tell. Tick tock.

Early Voting: Primary Edition

Our real President is taking a European trip -- I assume Joe Biden has been dreaming of this for over thirty years -- and we are voting here in New York City.  

2021 had important elections right away with two Senate run-offs.  And, there are multiple important races, especially since the city has term limits.  So, we will have a new mayor as well as comptroller, public advocate (second in command mayor-wise and a type of ombudsman), Bronx borough president, and district attorney (Manhattan).  Plus, city council, the guy who resigned his assembly slot to get a better paid local gig not running again since he figures no one would vote for him. 

If Georgia had ranked choice voting like New York City races (so not for a state race even though a borough prosecutor comes off as a "city" one), we would probably have at least a 51-49 (R) Senate right now.  But, the concept as a whole seems reasonable, especially if the alternative (as might be the case with at least one key prosecutor race) is the winner having thirty something percent of the vote or unnecessary expensive run-off is the alternative (which only happens for mayor and I don't know what else).  

There are a lot of mayoral candidates, thus this quiz is a helpful way to get a sense of where you fit.  It told me Art Chang, an also ran, would be someone in my top five.  So, I tossed him in.  Scott Stringer came up on top for me, and on the issues (and city experience), he is a good choice. But, he had that problem with a sexual harassment accusation (and how he handled it).  Plus, darn he seems boring.  I also want a woman and/or person of color to be mayor.  Finally, various people I trust have endorsed Maya Wiley.  So, she was first.  Stringer poll-wise isn't doing well either.  I tossed him in as fourth. 

Yes, I early voted today, being the first day of early voting with a closer polling place (there are not the same number as on Election Day) this time.  Last time, it was at a school.  This time at "St. Martha's" -- not the actual church, but I still find that a bit dubious on separation of church and state grounds (back in the day, I went to Knights of Columbus).  I received my early voting guide in the mail yesterday. And, one of the episodes of Petticoat Junction this early Saturday was when Uncle Joe runs for mayor (the winner turns out to be his Indian statute, which makes sense in context).  

Back to my choices.  I was going to rank Dianne Morales, the most liberal candidate, either first or second.  She was my personal ideological choice, basically having no chance of winning.  But, Morales ran such a poor campaign, including having labor problems, and that is just damning. I ranked Kathryn Garcia, my compromise choice who has some chance of winning, second.  If Wiley doesn't win, I think she would make a good choice, even though she probably is too conservative on certain issues. And, even there, she might be open to some movement left.

Eric Adams was fifth, simply as a safety if it was him vs. Yang, who simply should not be mayor.  Some argue he is actually more likely than Adams to do the right thing, but after 2016, we have to have some basic standards.  If I cared about someone else, I wouldn't have ranked Stringer either probably.  Like I don't see it being Stringer over Adams at the end of the day over Garcia or something.  He also has enough going for him that I guess he deserves to be ranked on my ballot.  

Comptroller is an important position and I basically relied on endorsements.  Brad Lander got the progressive vote (AOC, Liz Warren etc.), so he was first.  My assemblywoman and some others favored Brian Benjamin.  So, two.  I tossed in Reshma Patel, someone who I saw interviewed and seems to have a good life story and professional background.  David Weprin by one of the papers was cited as a credible option.  And, I tossed in term limited and late comer to the race, City Council Speaker Corey Johnson, who very well might win.  But, comes off as an also ran and rather someone else win.  If he wins, shrugs.

Public advocate was the incumbent and two nobodies who don't even offer much in "eh why not" in my opinion.  I voted for the incumbent and wrote in a member of my family.  My assemblywoman is running for Bronx Borough President, but someone a little older with more experience and some good endorsements (including my former councilman) is also a woman person of color.  So, I put Vanessa Gibson first there.  The others are also rans, and one is cited on Wikipedia to be anti-choice. So, I wrote in a family member for third place.  

Oh let's not forget "Delegates to the Judicial Convention 80th Assembly District," not even cited in my voter guide except for ("there might be other races").  This is one of those asinine things where people don't know anything about the people.  You pick ten.  I picked the first eight, another one, and wrote in a tenth.  The particularly annoying this (besides needing to fill in ten ovals) is that it is a separate ballot and not ranked choice.  So, it's one big pain in the ass [plus for poll workers, who have enough paperwork]  in general.  

One last race as part of my voting experience (plus a stylus pen, sticker, and early voting armband) was City Council District 13.  Someone gave me a campaign card (nice looking) but it was for another candidate of the actual polling place (again, you don't go to your usual local polling place for early voting , and need not go to the closest early voting location either; you can go to any early voting location*) so I had a reason to think "who is this person?"  The choices for mine were Marjorie Velazquez, second place last time, and also rans.  Only one even submitted information to the voter's guide -- so I ranked her second -- Monique Johnson.  Again, I filled in someone's name for third (you get one write-in option for the ranked choice options).  

I wish there was a bit more attention given to the races though that's partially my focus more on national issues.  Still, it really seems to me that even as late as a month before, a whole lot of people did not pay attention to the mayoral race.  This basically (though he has been dropping) helped Andrew "hey, he's new and seems nice" Yang and Eric "from Brooklyn and seems like the somewhat less liberal / pro-cop choice" Adams.  Adams is now in the lead, but it's like twenty percent or something, so who knows.

Again, there are other races -- the biggie is Manhattan District Attorney.  There are Republicans running for mayor, including Mr. Guardian Angel. And, Wikipedia tells me there are three Republicans in the New York City Council, so hey, at least there, some Republicans actually will win in November, without determining if they have any competitive primaries now.  In 2020, there were no Republican primary for my polling location; now there would be.  I also am not aware of any third party primaries.  

Voting continues to be a basic part of our system, including giving the individual citizen a chance to take part.  Elections also give non-voters, and even non-citizens, a chance to be informed and in some fashion take part about the government and issues out there.  Many in New York City are non-competitive, but we have a few actual races this time.  I voted.  

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*  My local polling place is a school a few blocks away.  Once there, you have to go a certain "election district" table, which there are around five or so at my polling location.  A table might have more than one "ED." You cannot vote (except by affidavit) if you are assigned another polling place.  But, early voting is different, and you don't have "election districts" to worry about.  

You also don't need id, though are assigned a card that helps the process.  You do sign the book, now electronically, and it is supposed to look somewhat like the signature on record.  That also helps to prevent repeat voting -- one signature locks you in and you can't vote again.  I assume it is also checked against any paper ballot.  More reason "voter fraud" is not a thing.

You can now get an absentee ballot (more broadly than before because of COVID; a full change requires a change of the state constitution, which is tedious but explains why it couldn't simply be done legislatively) ahead of time and drop it in a box as well. 

SCOTUS: Opinion and Books

Opinion: SCOTUS continues the winding road of Armed Career Criminal Act cases with a 5-4 Kagan v. Kavanaugh affair with Gorsuch (silent) and Thomas (concurring in judgment, resulting in a bit of "who assigned" mystery) splitting from the conservatives. Kagan got some kudos for clarity (and Kavanaugh schooling). Only opinion of day (this happened over 10 times this term!); twenty one left. Monday/Thursday again next week.

Books: The Fight for Free Speech: Ten Cases That Define Our First Amendment Freedoms is well written, if a bit lacking in providing the other side at times.

Another book is more history based, but it has some court/constiutional material too. Until Justice Be Done: America's First Civil Rights Movement, From the Revolution to Reconstruction covers some ground I'm familiar with, but adds some additional detail too. Also shows you can write good history for an educated audience (let's say; basically it's a honors high school/college type book) with clarity. (Various reviews here.)

SCOTUS Watch: Opinion Day #1

Orders: The usual standard stuff, if a few odds and ends that might confuse a tad. Two notables. One, a "relisted" (per the SCOTUSBlog column) case in which a lower court found a limited exception to the troubling state secrets privilege was granted.

Second, the relisted case involving a challenge to the male only draft registration was rejected. Sotomayor (with Breyer and Kavanaugh) flagged it is a serious matter but that Congress was studying it. A sort of cushioning the blow judicial restraint sentiment in various ways is not surprisingly joined by those two. Sotomayor is more likely to show her hand a bit while also saying (spinning?) why restraint is reasonable.

Opinion: More backloading with ONE unanimous case, another brief opinion in a case argued in April, in which Kagan to my eyes blandly explained how a federal statute warranted immigrants losing in the specific way at hand. Meanwhile, Biden flagged that though a policy involving Puerto Rico was unfair, and should be changed, the Administration would defend it per policy to defend federal laws. The limited "except when it simply isn't defendable" exception not addressed, which bothered a few people.

Books and Film

Books: Lincoln In Private: What His Most Personal Reflections Tell Us About Our Greatest President was relatively painless. That is, among multiple books that I couldn't get into to, it was smooth sailing.  It's basically one of those light snack/meals sort of books that one can breeze through. 

The book is only around 165 pages along with an appendix with the private fragments/notes of Lincoln, the book focusing on twelve.  The pages have a lot of photos and background material.  There is not too much focus specifically on analyzing the material.  I'm not really sure how much it all adds though it's an interesting idea.  Given all the Lincoln books, that's something.  

One thing about Lincoln. Some call him out as a racist or something, but the key thing for him was to call out the basic evil of slavery.  That seemed to be the particularly horrible thing for him about the Kansas-Nebraska Act.  And, Douglas' "don't care" position on slavery.   Realistically, slavery would not be spread much after that law, but the problem was the message sent.  It was sort of a new beginning on some level for slavery.  Lincoln also said he was concerned about slavery going national.  But, the evils of slavery itself is what stands out.  And, that was a big deal. 

Paul: After that, I skimmed through a short book that argues Paul is a positive figure, using Greek and Roman sources to compare his message to the existing culture.  It's by Sarah Ruden, the translator of various works, including a new translation of the gospels.  

I think it's a good approach though the Greek and Roman sources got tiresome after a while.  Plus, she assumes Acts of Apostles is truly bibliographical without the degree of grain of salt that warrants.  Finally, since I was skimming a collection of early Christian fathers writings (Didache included), her saying there was no good evidence of her getting to Spain without commenting on the implication of the early Clement (c. 95) suggesting that annoyed. She's not really a biblical scholar though.

And, the author does a half-way good job to show Paul is better than his reputation, basically coming off as reformer.  One way to go about this is to show the evils he was addressing and using the Greek to mean something narrower than the translations often seem to cover.  So, "fornication" is more like "sex with prostitutes," who are regularly abused.  The verses on homosexuality is abusive anal rape.  He wasn't against parties, to cite one words, but reckless revels.  And, he had a pretty evenhanded view of marriage.  Plus, his Christianity has a positive redemptive view.  

I think Ruden over does it some.  She notes "fornication" is really too broad, but then basically shows that Paul actually does speak against all sex outside of marriage.  He rather people remain celibate really.  Not just giving people a choice, which she highlights as a positive given the stress of a fixed view of marriage responsibility.  It's marriage or celibacy.  And, yes, you can separate if the marriage doesn't work out.  But, you can't re-marry.  That isn't that idea.  

Finally, I'm not sure how limited (putting aside a realistic view of homosexuality in that age) all those prohibitions truly are overall.  They are rather absolute sounding.  Ruden cites a Paul verse about following the government's will and suggests he is specifically concerned about the military, which she spins as basically the best part of the government.  This is the sort of trying hard.  Paul's one epistle about a slave does comes off well, but really it's just one letter.  The book as a whole in less than two hundred pages and a lot of Greek/Roman citations.  Incomplete.  

(I have since the NYPL re-opened later last year have only picked up reserves. Limited browsing began in May.  There was a small new book collection near the reserves and I picked one up.  This is the first time I did that since March, 2020. The small library right near me is still closed.)

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Television: I continue to watch some Friends, including some of the 10th season, which I have criticized.  Still don't like some of the plot material, but there are some nice moments.   It is the one DVD set, aside from one season with a documentary, where we actually hear from the cast.  It would have been nice if "Ross," who directed something like ten episodes provided commentary to at least one of them.  Be interesting.  

Note: Below is an extended soft porn review. Maybe, it will get some hits.

Late Nite:  Swipe Right for Sex is a new entry among the "After Hours" entries on demand for Showtime.  It actually starts with a bit of plot -- a couple breaks up when the guy is upset that his girlfriend wants to move in.  Each tries the dating app, which starts with the guy's friend writing his profile for him with information that doesn't match. The woman is a better fit for him, leading to some causal sex.  

This is again dealt with at least a minimal degree of actual acting/writing.  The main woman and the first actress for sex also are not fake looking types, and from what I can tell the hook-up is not filled with tattoos like is common these days.  Obviously, they are still porn actresses, but as with a minimal amount of plot/credible dialogue, I personally like them to not look totally fake (boobs, tattoos, seriously tanned etc.)  

Thee second match-up had a creepy looking bald headed dude with tattoos and the lead's slutty friend, who still looked pretty normal if somewhat more tanned.  The third match-up had a more fake looking big boobed "model" -- see below -- who was completely tanned but she was okay basically without tattoos.  Both had some dialogue lead-ins, including bad dates for the woman and a more intellectual date this time for the guy.  The film offers a bit of comic relief -- I appreciate it making a bit of an effort.

With a few minutes of pre-sex stuff each time, the first three sex scenes took until post an hour into the movie. We are talking long if not showing much, this being soft porn.  A lot of woman moaning.  A lot of focus on the boobs and chest.  The first one had a lot of pounding noises, so one wonders if (as there sometimes is) there is a harder cut.  A little of the sex goes a long way, though creativity in these movies isn't that often seen. 

(One threesome in the "Double Booked" film was pretty creative there as was some scenes in a film involving a sex story based radio show set-up.  The "Sex Life Crisis" lesbian one also had a bit of creativity in a scene or two.  Others probably can come to mind. But, the current batch of Showtime films here don't really.) 

Plus, the film started with a long disclaimer, which was both interesting and a bit amusing.  First, it contains adult language and content.  Well, that's a surprise.  It is not suitable for anyone under 18. Hey, now.  No absolutes.  It may not be suitable even for all adults.  All "models" (is that the term now?) are over 18 and consented.  It is a "visual production" that is fantasy and not to be taken seriously.  So, not a serious work of art?  

All references to family relationships are purely fictional. That was interesting.  And, "there is no actual relation of any kind between performers in this film."  That's a curious phrasing.  Plus, It is meant for fantasy purposes only.   Long disclaimer!  I have checked out various of these films, at least to watch a bit, and most don't have a disclaimer. In the past, a few might have a brief one about people being over 18 or something. Nothing like that.  

(The only reference to a family relationship in this cut at least is an early reference to the lead woman's friend having sex with two members of the same family.  It was a brief reference and no actual visual.  Maybe, the disclaimer is a standard one for the films of this production company.)  

Back to the plot.  Turns out the guy was too into the sex and agreed in the heat of the moment when the woman said they should move in together.  Plot twist!  And, it turns out the woman is a tad unhinged (is the Fatal Attraction allusion something people these days would catch? but again, I appreciate the attempt).  Would be the one with the most fake looking tits and everything. Ha.  So, the guy goes to hide out in his ex's place, she noting the irony about the guy not wanting to move in doing that.

Soon they are having sex.  She's big boobed but again free of tattoos and is the lightest of the bunch skin tone-wise.  There seems to be a bit more kissing but then the standard things.  Moaning.  There is eventually among some of the rubbing (it's somewhat unclear where the penetration is supposed to be in some of these scenes) an fairly extended show of some pubic hair. Which for me personally is appreciated.  

I think the first and last sex scenes are the best, each women attractive in their own ways.  The first has one sorta blah tattoo on her arm but nice long black hair and cute little tits.  Some long shots showed she was a bit too skinny but her arms suggests she works out some.  The last had tits a bit too big but again her skin tone, lack of visual tattoos, pubic hair, long dirty blonde hair and cute voice all were draws. The last sex scene is somewhat more interesting.  It too could have been shorter.  

The movie ends with the woman saying he can keep his toothbrush in the guest bathroom.  One wonders what happens to the slightly unhinged woman who we last saw at his place.  Maybe, like the first woman, he will pass her off to his friend.  Anyway, decent movie.  Not too much, but some plot.  Credible acting.  Mixture of women, not providing an overdose of boobs and tattoos.  LONG if somewhat boring sex scenes.  

[I found some video of the film online and like other films there are more explicit cuts with penetration.  The soft porn cuts of these films are sorta boring and of course don't show penis.  I found one video online with about thirty minutes of the film and there was penetration with use of a condom.]

Other Films: I saw (on DVD) the Alfred Hitchcock film 39 Steps, with an actor in multiple films I have seen (he was also the lead in Goodbye, Mr. Chips).  It was an enjoyable film as a whole with a neat reveal (if not too surprising).  Good pacing and some very good scenes, including with supporting players such as a young wife of an older cynical evangelical farmer.  

It is somewhat unbelievable someone who apparently is just some innocent every man was able to hold his own so much, but dramatic license and all that.  Also, an early use of a helicopter or something; not quite the crop plane in the Cary Grant movie, but some might have thought about that. But, this was a mid-1930s film, so long before that.  

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I saw the beginning of The Phantom President (1932), also on DVD, which had a "look alike" plot involving a too serious presidential candidate being replaced with a look alike medicine man (we see his show, including a bit involving him in black face); both are played by the showman George Cohan.  

He's a logical age as a candidate, but is rather old for his love interest played by Claudette Colbert (about twenty years younger, made more apparent since Cohan looks like a stolid 50s business man).  Jimmy Durante plays the showman's partner.  The beginning has some charm and good wordplay, but got a bit bored with it so turned it off once the campaign began.  

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The Svengoolie film tonight is Curse of the Cobra, which I liked ("fun") when I saw it five years ago.