Baseball Update

September ended with more races (Houston and Atlanta) over and the last Mets home game.

It was a win, thanks to more rough Marlins play (it became a laugher when the manager tried to squeeze one more inning out of a long reliever), allowing Rick Hill to finally get a win as a Met. Hill has done his job -- you could basically rely on him to give you five or so innings and giving up at a run or two. But, the team wasn't good enough until now to actually allow him to win. They lost the middle game, so 2-1 series win.

The Braves has gone on a run again, and now swept the Phils (who played just mediocre to come in second), so that final series with the Mets won't mean anything. So, more of a chance of a win or two, perhaps. Red Sox continue to struggle, lost a series to the Orioles, so tied with Seattle with three to go. Yanks about ready to take the first wild card. Giants two ahead of Dodgers, so really only the AL Wild Card race left. Rooting for Seattle.

SCOTUS Watch: Execution & Other Matters

Execution: Rick Rhoades is the fifth execution this year, three of them by very problematic rushed executions by the federal government in January. He is the third executed by Texas. He was sentenced for a double murder thirty years ago. Rhoades (per the article) confessed, but the long delay alone as discussed by Breyer here continues to constitutionally and as a matter of policy very problematic.

The article cites various due process claims raised. The Supreme Court was asked to stay the execution particularly to address a claim that evidence could show that the jury was tainted. The Supreme Court, to me wrongly as a matter of principle, rejected this without comment. Before the Supreme Court makes the final okay of taking a life, a brief statement explaining why the final claims are not worthy of review should be given. 

The sister is cited as unsure about capital punishment, but more secure here because he confessed.  But, putting aside the three decade delay, the system of executions are problematic, even if some lottery system will pick one or the other who particularly are less so.  Rhoades was prosecuted thirty years ago for murdering two brothers as part of a robbery.  This deserved a long prison sentence. Selecting him out for execution to me is a step too far.

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I added another blog, a new one that will address SCOTUS, but not about decision; other matters of interest will be focused upon.  

This article argues Kavanaugh's finances is a misguided subject for left leaning opponents to focus upon. His deep pocked parents are a basic source of his money though he's part of the problem since he is not really upfront about the matter.  He gets away with it because of a loophole in disclosure rules.  I basically agree that I don't think there is a big conspiracy there, though better disclosure could help to address the controversy.  

(I also don't think there is some big conspiracy regarding Kennedy's retirement.  He retired after thirty years, at age eighty, when a Republican got into power able to replace him. His son's financial dealings years earlier involving Trump is latched on to, but the idea it was some sketchy quid pro quo to cover it up is basically silly.  There are simple reasons for Kennedy's decision, which is quite open to criticism given he enabled Trump.) 

Congress will have a hearing on the shadow docket and Prof. Steve Vladeck continues his helpful informing the public function.  The written testimony, btw, includes an explanation of how the Texas abortion is crafted in such a way to keep abortion providers continuously at risk even if a specific lawsuit is won.  To belabor something, one critic of some of the pushback to me skipped over that sort of thing, arguing all you have to do is violate the law and the matter will be decided.  

[ETA: I expanded the last paragraph.  But, more notably, Justice Alito had a speech at Notre Dame Thursday that addressed criticism of the "emergency docket."  At first, it seemed like it would not be accessible to the general public.  This led to complaints, which might have influenced the move to make it available by live audio.  His strong criticisms of the criticisms were themselves criticized.  I appreciate the open audio policy -- this sort of thing should be open to the public to consider.]

Finally, with oral arguments coming up next week, SCOTUS has announced COVID testing rules for advocates for the next three months. A positive test will require phone arguments for the person involved.  Vaccination does not appear to be required.  Limits, including mask requirements, for those who do come to arguments are also cited.  Recall the public is not allowed, but the press with full credentials are.

Addendum: I missed a press release last week referencing a ceremonial investiture ceremony for Barrett this Friday. That is in the final days of the 2020 term, the 2021 term starting next Monday.  I'm unsure why it is taking place now instead of when she was forced on the bench illegitimately last October.  

ETA: The congressional hearing referenced is on the shadow docket and SB8, the Texas anti-abortion bounty law. This is the second congressional hearing on the shadow docket and Sen. Whitehouse has also focused on other Supreme Court related subjects. 

I hope once the presidential commission is done with its work -- perhaps November -- serious effort will be placed to pass legislation. But, this sort of thing is helpful to publicly address the matter. Note too Victoria Nourse's three part discussion of her new Trump impeachment casebook and the importance of Congress in constitutional law. 

Each entry is useful and her comment in the latest that criticizes the amount of attention the courts get respecting "constitutional law" as  if only the courts do that is something I have voiced over the years. Years ago, I wrote a personal view of the Constitution -- a lot has changed over the last fifteen years there -- and my open-ended views was not just meant to apply to what the courts themselves should apply. 

Marijuana use very well can be a constitutional right (restrictions also could interfere with them) but also something legislative action should secure since it is not so clear that the courts should strike down anti-marijuana laws. The Bill of Rights, for example, is not just something for the courts to apply.  It is a statement of principle that guides us.  This was flagged when it was first put forth by James Madison and others.

It still holds true.  One lawyer on another blog was quite critical when I raised constitutional concerns regarding the handling of certain nominees or suggested the impeachment process has constitutional limitations. How silly! It's all political!  As if it is but a policy choice to badly apply constitutional text and principles here.  That is a shallow and on some level dangerous approach.  We need higher standards than that.

She's On First

We recently had what seems like the first woman ref in a NFL game as well as an openly gay player (he even had a key role in the Raiders winning the Ravens game), but no woman players yet. I know of no woman MLB umps even and if the Mets ever have a ballgirl I'm sure Keith Hernandez (a bit behind the times) would have something to say. I would not be surprised if some trans person played at some point.

There were various fictional accounts (not speaking of when women had their own league), including a [decent] short lived television series. This book is from the 1980s (she also has a true story book on women playing baseball) and one charm is that there is a lot of baseball in it. It involves a women shortstop though of course there is some dramatic non-baseball material mixed in. I like the various points of view (owner, scout, reporter, player), but we only indirectly get the sense of her fellow players. That's unfortunate.

I have a charming book about a little leaguer pitcher who pitches a knuckleball. I also read a while back another book that had a woman ballplayer, but other than a bit about a guy being shot in the knees or something so he couldn't break a record, don't much at all of it. Anyway, I re-read this one and enjoyed it once more. My copy is an older version than the link.

Viceroy's House

As noted earlier, I re-watched What's Cooking? (didn't remember most of it, so that's fine), and it turns out it was directed by the woman (British with Indian background born in British Kenya, during the final years of rule) behind Bend It Like Beckham. She also directed Bride and Prejudice, another film I watched. And, many others.

The small sample shows she tends to direct somewhat light hearted films that deal with families involving in a cultural clash of some sort. The last one is a sort of Bollywood version of Jane Austin though don't recall THAT much music/dancing. Viceroy's House (she also later was behind a historical miniseries) is something of a change of pace. It involves the final days of British rule and the partition of India. As whole, I liked it.

The reviews were somewhat mixed and the "white guilt" complaints have something of a point, especially near the end. Recall again a British Indian woman directed this. The film also tosses in a sort of conspiracy theory on the partition being pre-ordained that appears to be of somewhat dubious historical accuracy. But, we should always be wary of taking historical films at face value. The last few minutes of the film, including rather cheesy bit, also probably should have been left out. But, a lot to like.

Congress Back: Dems Struggle to Govern / Republicans Rather Not (FU)

Congress is back and the Democrats -- since the fucking Republicans refuse to govern (and somehow it is sane that they might take control in 2023, like cats would have more credible reason to do so) -- have a lot on their plate including the debt ceiling. Since they have nearly no margin of error, since again every fucking Republican refuses to govern (a few opt outs, like investigating Trump), this is very hard. The fact the people at large support chunks of what is being sought out doesn't matter. Only Dems have agency.

Let's march to the drummer of "Dems in disarray" by all the usual suspects, including those very concerned about voting integrity. Robert Kagan wrote a strong article on the stakes of our republican system in that regard. Wikipedia labels him a "neoconservative," but the piece is largely on the money, except a few noises on giving Republicans "a chance" with a still smaller voting bill. Who among that crew shows any credibility?

Obtacle Course: The Everyday Struggle to Get An Abortion in America

This is a good book, using many personal accounts, to discuss the many obstacles put in place to obtain an abortion. As do I, the book's ideal is to treat abortion as a regular health procedure. The book also views things through a "reproductive justice" lens -- government and society has an obligation to provide and protect comprehensive reproductive autonomy to all.

Finally, the bottom line is the obstacles cause a lot of mental and physical harm, but do not block many abortions. (They must block some, and a few times we hear tell of people not able to obtain one, but the book is not inclined to estimate.)  For instance, the lack of Medicaid coverage in many states puts pressure on private methods, but seems most people* find a way somehow.  

The net result is gratuitous cruelty in the promotion (though this angle is not focused on much) of ideological goals.  And, it is applied selectively, the poor and POC particularly burdened.  Again, some unclear number of people are blocked from getting abortions while the increased burdens of those who still manage are often hidden as well.   

The book is unapologetically pro-choice, which is fine.  For instance, there is no abortion that are a bad idea  unless the person doesn't want to obtain them.  And, are there any problems in abortion care from the clinics' side?  Surely, no one is perfect.  But, this is not the book for that honest critique. 

Obstacles:

[1] Making the Decision -- most people are clear on what they want and  providers carefully screen patients.  Barriers here include: gag rules, reason bans (gender etc.), misinformation ("abortion causes breast cancer"), minor consent/notification laws, crisis pregnancy clinics, and doctors themselves not wanting to refer patients or even hiding key information like how far along.

[2] Few Clinics / getting there

[3] Money (insurance/Medicaid limits) / resulting delays

[4]  Clinic Protestors

(Not surprisingly,  they do not come off well, though the "prayers" might be mostly harmless if something of a nuisance.  I do wonder what the best usage of their time might be.  Nasty yelling can't be too useful. 

"Sidewalk counselors" are liable not to be too successful either.  But, a low key approach would seem to be the best.  For instance, say you are there if people want to talk.  Offer, kindly, an alternative.  And, even if you oppose their decisions, offer a praying hand -- after all, Jesus supports sinners.) 

[5] Biased ("unborn child") or fraudulent "informed consent" including forced ultrasounds / better to use normal informed consent pattered to the patient's needs.  

[6] Waiting periods

[7] Limits on procedure including limits on telemedicine, on types of procedure ("partial birth"), limits on medical abortions, doctor only requirements [physician assistants/nurses very good], unnecessary TRAP laws regarding clinics (admission privileges etc.), and skittish clinics/hospitals who don't do many more controversial procedures

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It is not the focus of the book, though some cases do come up, but the Supreme Court have dealt with these issues over the years.  The original rule was that the second trimester could have rules intended to protect the women while (with a life/health exception) the state could ban post-viability abortions.  The basic first trimester rule was that an abortion might only be allowed to be performed by a physician.  

(Three liberal justices in the 1990s flagged one law that seemed to target a single physician assistant to make it harder to have an abortion.)

A mid-1970s case dealt with some more regulations.  It turns out "may not restrict the decision of the patient and her physician regarding abortion during the first stage of pregnancy" does not mean NO regulations. The case, e.g., allowed in the first trimester record keeping and consent laws specific to abortion as long as they were reasonable.  

Meanwhile, a 1980s case reminded that second trimester rules that departed from acceptable medical practice could easily be found unreasonable barriers to abortion.  Recall too that the trimester scheme in Roe was tied to current medical knowledge.  Viability is basically the same. OTOH, what was unsafe in the 1970s very well might be safe now.  Perhaps, one basic pre-viability rule makes sense.  How "clean" was the trimester scheme applied?

Casey held: "A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."  This opened up more regulations, but  not sure how much different it would be on the ground. Court personnel would be key.  And, the Whole Woman's Health ruling (2016) said any burden had to have benefits.  Some pointless law with minimum burden would still be bad. 

Compare this to the dismissive way the Casey plurality said that clear burdens of waiting periods were not undue in that case.  Other waiting periods (including 72 hours and in states with less clinics) very well might be different, but even beyond the basic principle of second guessing women, this sort of thing surely sounds undue:

The findings of fact by the District Court indicate that because of the distances many women must travel to reach an abortion provider, the practical effect will often be a delay of much more than a day because the waiting period requires that a woman seeking an abortion make at least two visits to the doctor. The District Court also found that in many instances this will increase the exposure of women seeking abortions to "the harassment and hostility of antiabortion protestors demonstrating outside a clinic." 744 F. Supp., at 1351. As a result, the District Court found that for those women who have the fewest financial resources, those who must travel long distances, and those who have difficulty explaining their whereabouts to husbands, employers, or others, the 24-hour waiting period will be "particularly burdensome." Id., at 1352.

As to informed consent, the plurality required it to be "truthful, nonmisleading information," but allows something like "probable gestational age" of the fetus, which might not be appropriate for a given patient.  An early case, which it deemed too restrictive, more carefully limited such information requirements, including something like "the unborn child is a human life from the moment of conception."  

This the earlier opinion said was an illegitimate insertion of "one theory of life" into the "informed consent' portion.  Casey allows the state to do something like that though "the interest in potential life must be calculated to inform the woman's free choice, not hinder it."  Note previous cases allowed the selective denial of Medicaid funds to promote said interest (one brief in the upcoming Mississippi case lists the various thing the state could do to protect life but does not).  I find this to have First Amendment problems, along with the equal protection problems many flag. 

The state is not only forcing ideological messages -- not mere professional speech requirements -- but it has religious sectarian overtones. The matter has not been addressed much by the Supreme Court and the selective application of the rules is seen by the crisis pregnancy case cited below. See also, Hobby Lobby where a  minimum burden on beliefs in a public sphere was seen as problematic while pro-choice burdens are ignored. 

Justice Stevens touched upon the possible Establishment Clause in his Webster opinion and multiple religious liberty amici in the upcoming Dobbs case covered the overall issue of religious freedom issues here. Casey itself spoke of the choice to have an abortion being a matter of "conscience."  Ronald Dworkin, the now deceased liberal law professor, also argued along with euthanasia issues, religious liberty is a big issue here. A major Medicaid funding case avoided the question though the judge below addressed it in detail. 

One other area of dispute that is relevant to the book is free speech cases.  The Supreme Court upheld certain court determined injunctions that set up buffer zones or bubbles, but rejected unanimously when Massachusetts tried to set a buffer zone by law.  I am sympathetic though it is easier to see the law as unnecessary there than in a red state.  

Hill v. Colorado upheld a more limited law that makes it unlawful for any person within 100 feet of a health care facility’s entrance to “knowingly approach” within 8 feet of another person, without that person’s consent, in order to pass “a leaflet or handbill to, display a sign to, or engage in oral protest, education, or counseling with [that] person." [Cleaned up]

(The Roberts Court in the later case -- Roberts wrote the opinion though the other four conservatives at the time concurred separately -- cited Hill without suggesting it is no longer good law.)

Finally, there is the crisis clinics disclosure case that was a travesty.  Of course, abortion law is one big to be continued.  

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* The book was published in 2020 and notes early on the relatively new (from my vantage point) practice of reminding us that everyone that has an abortion do not represent as "women." But, given most are, the book tends to still use "women," though at times "persons."

Mets: Cusp of Elimination [and More Baseball News]

The Mets might have had their final time in the sun by winning the Subway Series, though not exactly in intimidating fashion. The Yanks (who seem a bit better of late) were in the midst of a horrible run.

(The Mets, if they show life, can play spoiler versus the Braves. The Twins have versus the Blue Jays, perhaps; two losses dropped them two back in the wild card race with time running out. It also might have helped save the Yanks.)

The Mets split two high scoring games by one run though they also had a nice 10-3 win, which might also have been Megill's (the nice surprise early on) last moment as well. After a disappointing finish, resulting in a decent but surely not dominating two weeks against the Marlins/Nats, this suggested maybe they might compete against the big boys.

Nah. They won one game (with two left) versus Cards, the Phils (whose playoff chances might turn on their Braves series), Red Sox, and Brewers. The Braves continue to basically win every other day. So, the Mets elimination number is now two, when they really should be eliminated by now. The Cards show how a late run can carry you to the playoffs. The Braves (and other wild card hopefuls until the Cards went on a run) allowed the Mets to stay alive. 

The Mets really didn't have to win too many more games to be still alive at time point, even if (like back in 1999) it would have taken some help and/or sweeping the final series (here the Braves, who then could be forced to make up a Rockies game, if the game mattered).  A team 73-80 shouldn't really be in that position, but again, it shows the mediocrity of the competition.  Until their recent run, the Mets also had the Wild Card route open to them.  The Cards current fourteen game winning streak closed that off.  It also basically put the Padres and Reds out of their misery too.  

The two game elimination number figure is also rather particular.  The Braves have 81 wins and the math is that the Mets can at most get 82. Problem is that the Phils have 80 wins.  And, the Braves and Phils play each other.  So, basically the Braves must win once (Padres - 2, Mets - 3, and Rockies 1 if necessary must all be losses), and it has to be against the Phils while the Phils must win twice (they play Pirates and Marlins too) and only versus the Braves.  

The Mets must win out (Brewers - 2, Marlins - 4, Braves). The math would result in a three way  82-80 tie.  Any other combo is elimination.  Baseball around this time of year is prime for such mathematical gymnastics.  

[ETA: Before the Mets began their game, the Phils won.  The Phils and Braves now have 81 wins.  One will have 83 since they play each other for three games.  So, the Mets are eliminated.

And, after the game (a loss), the Braves won in the tenth. So, they would have been eliminated either way.]  

The basic surprise is the Cards (hovering behind the pack but not that far back) rushing forward.  It looked like Padres/Reds, but both decided to play mediocre again.  Giants/Dodgers for division remains a nailbiter. Again, the Blue Jays (after doing a Cards) must be smacking themselves losing to the Twins.  It's not a lost cause, but the long expected Red Sox/Yanks Wild Card match-up looks likely.  In rather impressive news, Seattle actually has the same record as the Blue Jays now.  Around 90 wins? Who thought?

Anyway, it's "wait to next year ..." again for the Mets. Tiresome. The Mets had a team that was probably good enough to make at least the wild card possible, but then injuries and a lot of underperforming happened. Somewhat amusing, multiple injured pitchers might be available the last week.  It will be like one last look in a television finale or something.   

ETA: Their last game against "the big boys" (the Braves come up after a four game Marlins series though how much they will count for the Braves remains to be seen) put a cherry on top of their embarrassing play. 

Another rough start from "Cookie" (mediocre after he finally got off the DL though providing some decent games), but eventually they were only down 5-4 versus the Brewers.  A couple errors, each helped by Alonso, made it 8-4, which was the final score.  With the Cards never losing going on over two weeks now, the Brewers needed each win to clinch at home (the rest of the season is on the road).  

The Mets obliged.   

The game assured an under .500 record.  The team has problems, but winning ONE game versus the non-Yankees big boys is rather pathetic.  The first of the two misplays alone (the Brewers helped them a bit by questionable baserunning, but the next error scored that run plus another anyway) led Keith Hernandez to go off on how they are a second level team.  The t.v. booth is professional and doesn't like bad baseball. 

Note without giving the Brewers three runs basically (though one was technically earned), the Mets had a decent chance of winning the game.  Maybe. They lost a lot of one run games.  But, the bullpen did their part.  Me?  I was basically screaming that Alonso had to be pulled out of the tame. Dominic Smith was available to play first.  Coming up in a big spot (two guys on), Alonso didn't do anything anyways.  

Leaving Alonso in, though both the pitchers and the manager were pissed, just is an example of how the manager has let the players be. When they were goofing off with imaginary hitting coaches and a stuffed horse, it seemed amusing.  When there was some stupid dig at fans for booing, it looked somewhat less.  But, as a whole, the manager has a role to control the team. Taking out Alonso would have sent a message. 

SCOTUS Watch

Orals: The vet SCOTUS reporter, now retired, who used to cover the news for SCOTUSBlog might not have liked it, but many liked the justices taking turns during oral argument. The big thing for some was that Justice Thomas (who went second) actually asked questions, which he does fairly well actually.

Now that things will be back in person, the old system (with the two minute intro, "generally" without interruption) will return. But, with a twist -- if they want to, in order of seniority, the single questioning will return when the advocate's time expired/they are done arguing. This furthers the Court's already openning for expanding argument times if the judges have more things to ask. It seems a good compromise.

Someone Is Wrong On the Internet: This expert on sentencing law and policy has a side of him that is just annoying. I simply argued that the federal executions were done in a way that violated due process by a packed Court. This -- my sentiment is because he is too busy with his talking points to actually engage with what I am saying -- confused him so much.

Local News

Mets: With ten games left, elimination is approaching, but even now a sub-.500 team not totally being so shows the weakness of the division. The Braves finally won and the Mets lost on the same night. The Braves lost today, so the elimination number holds at 4. That is a combination of Mets losses or Braves wins. Mets can still play spoil, helping Phils.

Food Delivery Reforms: Major legislation helping delivery people, who have been especially important during the days of Big V.

A summary: "City lawmakers are acting to aid workers in the booming multi-billion dollar app-based food delivery industry, scheduling a vote for Thursday on a landmark slate of bills intended to ensure bathroom access, minimum pay and more." It passed.

What's Cooking

A lot of even older films can be expensive on demand (it's ridiculous though yes various films are free and you have so much other stuff to watch), but this one was reasonable ($2.99 or $3.99). It is about four ethnic families (black, Asian, Hispanic, Jewish) celebrating Thanksgiving with various problems going on that mostly work themselves out somehow.

Very good cast, though the Asian family stands out a bit less even with Joan Chen. The director is better known for her English/Indian works (including Bend It Like Beckham and Bride and Prejudice). The Sven film last weekend was the original Dracula. Bela seems less scary and more silly than some vampires and the nemesis more of an old professor type. From what I can tell, great atmosphere. Did not really watch it though saw bits of it.

Supreme Court: People's Court ... and more abortion fictions

And Also: The December calendar of oral arguments was released, as you recall with live audio, and the big one is the Mississippi abortion case.   Some from the look of it  not really notable procedural order by Kavanaugh was also released. It is not really clear why it warranted a posting on the main orders page as compared as just on the case's docket page.  [Update]

Law professor Eric Segall, a nice guy who is right about various things, keeps on saying things like this (per a recent tweet):

Good morning. In 1870 SCOTUS stunned the country by ruling Congress could not make paper money legal tender for prior debts. Huge decision. One year later with 2 new Justices the Court overruled the decision. Changing judges changed the law on a huge case 1 year later. 1870-71.

This is a reference to the Legal Tender Cases, when the Supreme Court first held paper money was unconstitutional and later changed its mind. The first was 5-3 opinion; a change in court personnel (the nominees were picked in part for their different views on the issue) later made it 5-4 the other way.  

The message is that this is a sign that the Supreme Court is not really a "court," that personnel and their values is what basically determines things.  The justices didn't change the law on a range of issues.  On a particular issue, one strongly divided and novel, they did change.  

Because humans, picked by other humans (in our system, politically), are involved.  Nominations provide a key time for the people (indirectly) to affect the path of the law.  The system encourages this.  In some other system, perhaps some nominating board or something, itself regularly appointed by political actors with different views, might be involved.   

President Lincoln in his first inaugural argued the importance of allowing the people to influence the law in this fashion in novel cases.  He was talking about the principles of Dred Scott v. Sandford, and how it was appropriate for Congress and others to push back, to try to convince the Supreme Court it was wrong.  And, one might add, put new judges on the bench that might see things differently.

In practice, this does not result in rapid changes of the law in short period of times.  It can lead to changes in some respects, especially on certain issues that are given special attention.  In this case, it could very well be argued that the two new justices corrected a serious error, one that wrongly handcuffed the discretion of Congress to make fiscal policy.  The system basically worked as it should work.

A person might say, but reading his work, I don't think this is all he is saying, that the Legal Tender Cases is a red flag on the limits of judicial review.  That it is a lesson that it should be used with strong restraint.  That's a valid concern.  But, at times, there will be a quick turnaround, the people's representatives putting on the bench new people who strongly feel that something was wrongly decided.  This should be done with care. The justices surely thought they were doing so.  It is part of the system.

The justices are still acting like a court.  And, sometimes, this will be done in ways that people like me will find very wrong.  But, the law does change. So, we have to take the bitter with the sweet, though it is quite possible the judges are bad for some other reason.  Thus, the talk of how the Trump bunch got there.  The way the system should work, including its hard complexities, only make not being able to respect the legitimacy of new members that much more troubling. 

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Abortion Briefs: The architect of the Texas anti-abortion choice / bounty law is involved in an amicus brief in support of the Mississippi law due to be heard by the Supreme Court.  It's a doozy, including use of scare quotes for "rights," aiming for rights for gays, and arguing women can just not have sex, so why do they really need abortion rights?

We also have a "moderate" originalist argument for abortion rights -- supposedly history shows that quickening is the line and quickening basically happens around fifteen weeks.  My general understanding is that it really comes closer to twenty.  On top of that, though a quick read over doesn't suggest they cover this, even pre-quickening will -- going by history -- justify a lot of other barriers such as for minors.

The level of assurance on the history and what it offers at various points seems a bit too assured.  Also, there were a variety of laws in place in 1868, including bans pre-quickening, if "minor" in nature.  They still were in place.  Originalism by this account would suggest that states had a wide discretion to basically totally ban abortion.  

Finally, this sort of thing underlines the limits of originalism, at least some fairly strict version of it.  Quickening, to remind, is feeling fetal movement. The reason it was used is that the knowledge of the time was such that was the only way to determine the fetus was alive.  Modern science, however, provides technology to do so.  Mere movement in itself does not seem to be independently much of a line.  A brain dead fetus might move. 

The article (retweeted by Segall) is a fairly common example of trying to make firm judgments, often in a way open to criticism, regarding something that doesn't truly offer what is trying to be sold. The article might appeal as a "reasonable" approach, a compromise of sorts. I think that is a sort of fool's game here based on sand.  Not that I think it would work well either.

Sports Update

The Thursday Night Football game was Giants at Washington. The team that was a gimmee for the current Giants QB. And, though the Giants kept on making mistakes, their reliable kicker and a missed field goal at the buzzer looked like another win. If by a hair. Oh. Another penalty. Retry. The back-up QB to injured Fitz wins the game. 0-2 (of 17)

Meanwhile, the Braves (first place in the NL East) are in midst of a four game losing streak. Unfortunately, the Mets are in the midst of a five game losing streak. This is a continuing story of late of a day by day slow water elimination march. The Braves could end the fans' misery by winning a bit more. Do the fans really want the Phils (who I bet have one more screw up left in them) to sneak into the playoffs? After all, Adam W.'s Cardinals just might!

The Jets and Pats play on Sunday [blah], a pair of rookie QBs. And, the Mets play Sunday Night (they also had the Saturday Night FOX game), so no conflict! The Giants are good enough and their division weak enough that you sorta hope there; the Jets you can enjoy more with lower expecations. [But, you want more than you got today].

Some Books

Leaving the local supermarket, I recently saw a bin with a bunch of books outside. One was various works of Nella Larsen. I wrote about a novella that is part of the book, but could not get into the book this time. This has happened a few times with books I have read. Housekeeping was particularly hard going. Just so much color possible.

Another is a book I read some years back -- Fried Green Tomatoes at the Whistle Stop Cafe, which was made into a pretty good film version with various good choices for the characters. An old lady in the 1980s talks to a younger woman about life in Whistle Stop, Alabama back in the day. And, we hear tell of the lives of the characters over the years. I enjoyed reading it again; I remember much of it, but a few parts I did not.

There were lots of young adult books in the mix and took one with charming title, Getting Revenge On Lauren Wood. It was decent enough, but yeah, a counsellor wrote the thing. Soon enough, since the person is good, she feels guilty about things. Spoiler alert, even if she grew to be upset about it, she did get revenge on the girl who betrayed her in eight grade. Too bad she wasn't allowed to enjoy it. Well, it was a learning experience.

Drone Strike Admitted to be "Tragic Mistake."

The Pentagon acknowledged on Friday that the last U.S. drone strike before American troops withdrew from Afghanistan was a tragic mistake that killed 10 civilians, including seven children, after initially saying it had been necessary to prevent an attack on troops.

One thing I have disagreed with some liberals on is the justification of drone strikes. People argue they amount to "assassination," have no restraints, and so on.  I disagree.

Assassination is the unauthorized murder of some political leader. For instance, no matter what is says on his tombstone, Jesse James was not "assassinated."  Killing of a person like Martin Luther King Jr. (civilian leader of a movement) is more appropriately an instance for that term. 

A military leader in an armed conflict is not either in most situations, particularly when they are killed during an authorized conflict (such as one arising from an authorization of military force) in a combat zone.  This also touches upon how drone strikes are part of a process, subject to a variety of rules.  Likewise, deadly force can be legitimate even without court process.

Also, American citizens can be killed without court process. The Civil War is a prime example, but a few American citizens also served in other foreign conflicts, at times being in harm's way.  

Note that though it doesn't cover all drone attacks, the authorization of force covering the Pakistan-Afghanistan region at the very least is a sort of "process" too -- it is a specific authorization.  Some American who went to live with the Taliban or something and became a leader of their military effort very well is fair game in the right situation.  

This does not mean drone strikes are generally a good idea. I don't think they never are justified.  I can imagine how the use of a drone to kill an enemy combatant that is an immediate threat and cannot be obtain by other means could be defensible.  But, like use of force generally, there is a lot of problems.  The news item highlights why.

It also highlights a problem with tough guy talk like President Biden saying that those who committed the attack on the airport or similar suspects have a price on their head.  A certain level of rhetoric pushes the sentiment that use of force for reprisal is necessary.  Closer calls become seen as more of a reasonable risk.  And, it simply is going to be the case that drones will kill innocents.  They aren't that pinpoint, even with the right data.

The article also the NYT itself studied the evidence, questioning the attack. It is unclear how much that led to the official finding, but probably can be said to have put some pressure on the Pentagon.  It seems there is a quick turnaround, the attack happening less than a month ago.  

Drone strikes were used particularly by the Obama Administration, the Bush Administration more concerned with two military invasions of Afghanistan and Iraq.  They seem like a less invasive approach, which they probably are, but they can also fool you.  The U.S. forces rightly left Afghanistan because military attacks and occupation is going to cause "tragic mistakes" too.  War does that.  Drones will do the same while looking "cleaner."  Something can be wrong without be wrong in other ways.

We now are hearing calls for some "accounting" -- was that such a concern in past drone strikes that somehow went wrong?  Do have one. Meanwhile, the children are still dead. As they many were during the invasion.

===

Meanwhile, France removed their diplomatic personnel from the U.S. for instructions (apparently never happened before -- even during the Quasi-War?)  because France thinks the U.S. really screwed them over regarding a military deal with Australia.  I guess Australia is less of a concern for them, or perhaps France-Australian diplomatic relations is less newsworthy here. 

[Guess they are mad at Australia too.]

I find it hard to care too much though it's notable enough to serve as a sort of footnote.  France comparing Biden to Trump surely won't help much to clam things down.  I don't recall the Trump Administration actually managing to do something this productive. I'm sure some of their people might be jealous of such "art of the deal" behavior.

Anyway, it is France after all. The U.S. is not their enemy or something.  And, the French need the U.S. too.  At some point, it is hard to imagine they won't relent, perhaps being paid off somehow. 

===

To toss in one more thing in the news, one of the ten Republicans who voted to impeach Trump (the second time) said he won't run for re-election. Recall that the election is next year, but these days, we probably do have something like continual elections on some level.  His act of "infamy" already got him a primary opponent. He figures he can win, if after a nasty primary, but doesn't want to be part of the current House majority any more.  The need for protection after voting for impeachment doesn't help.

The problem is widespread here.  It is a problem of the Republicans at large.  And, it helps turn off a few, probably more likely to be halfway decent in some sense (the true believer/willing to go along can still thrive), from being part of Congress.  We have heard for a few years now some noise -- at times Democrats too -- finding the situation more unpleasant. 

Many could have agreed that Trump crossed the line.  No.  They either avoided the responsibility or actively agreed with him.  This yet again goes beyond mere party politics to the heart of the matter. 

I was a strong opponent of the Bush43 Administration, repeatedly personally appalled by things they did.  I supported strong opposition, including filibustering judicial nominees (in hindsight, questionable).  But, Republicans have gone further down in my estimation. Down the sewer.

SCOTUS Watch: Members Realize They Are In Trouble

It's late Friday afternoon and there are no new orders or anything. But, by now, we know that we should not assume things will remain the same. Enough late Friday action. I'll post it though and edit if necessary.

Still, let's focus on multiple members of the Supreme Court (Barrett, who I refuse to label "Justice" given I find her appointment tainted, included) are out there defending their institution. The big news -- covered in the past -- is Justice Breyer promoting his overly positive view of judicial review, including on places like Colbert. Now, on some level, I appreciate him going out in the public to discuss his views. These people aren't just ivy tower above the fray sorts. They should engage with the public some more and appreciate some of their efforts.

The problem is with his message and failure to realize it is time to retire. One annoying moment was when Chris Wallace asked him about Garland not being given a hearing. Breyer started with some stupid joke that even he saw didn't go over well. Then, he said that was the "political" side -- as if it had nothing to do with him and the Court -- and if the people opposed it enough, they could change it. 

Not exactly realistic, and he is actively out there trying to sell that there is no reason to do so since the Court is doing its job, and strong opposition to it it a problem.  So, that's sorta bullshit, you know?  Breyer and probably others pine for a day when judicial nominations were bipartisan walks in the park.  So, Garland etc. looks bad.  But, they also don't actually want much change (though Breyer has said term limits seem okay and Colbert suggested only a "majority" opposed cameras), which will temper down any action to get any. 

The fact the members of the Court are at least somewhat worried or annoyed or something is suggested by the fact recently multiple members are out there responding. One red flag is that there is recent polling that suggests public support of the courts have significantly decreased.  Which is warranted given the Trump trio and all that is going on.  

For instance, Barrett is out there -- in a location named after Mitch McConnell -- trying to sell that they aren't all partisan hacks. As noted here, her (and others) attack on the media is bullshit.  If nothing else, you can try A LITTLE and avoid any connected to Mitch McConnell.  

But, as Mark Stern and others noted, each Trump nominee did not follow that rather simple rule.  Some have high bars of ethics, such as a judge not being involved in an ACS event, but there are basic rules of avoiding the appearance of impropriety here.  How about formal ethics rules for Supreme Court justices? I suppose would be basically self-enforcing (though disclosure rules could be included), but seems useful.

Justice Thomas joined the "we aren't all partisan hacks" brigade.  We have this simplistic appeal:

“I think the media makes it sound as though you are just always going right to your personal preference,” the justice lamented during a lecture at the University of Notre Dame. “So if they think you are anti-abortion or something personally, they think that’s the way you always will come out. They think you’re for this or for that. They think you become like a politician."

This is rather simplistic.  As is his comment that national leaders have “lost the capacity” to “not allow others to manipulate our institutions when we don’t get the outcomes that we like."  For instance, their abuse of the shadow docket, doing so selectively in ways that surely do come off as based on ideological factors, is an "outcome I don't like," but sometimes that is a problem.  The way the Trump picks were handled also would have been bad if a Democrat did that.  His framing is simplistic.

It is true that justices are not just politicians in robes.  There is some nuance here.  The truth is in the middle somewhere. Judicial nominations tend in some rough sense, all things being equal, to have some partisan ideological overlap.  And, more so in recent years.  And, judges aren't just automans here.  Moscow Mitch et. al. purposely worked out that certain types of judges got on the bench. It's a lie to pretend otherwise.  

(The honest answer is that personal beliefs factor in and that judicial interpretation will be influenced by them to some extent, especially given our judicial selection process. The judge's duty is to do the best they can. And, to avoid an appearance of impropriety.)  

I don't know how much change in recent years; think this article suggests a bit too much of a shift. Surely, the Warren Court did a lot.  There has been a change, including as a result of changing political winds -- there was more overlap in the past.  We could have a liberal Republican become a justice.  Something similar could be seen c. 1900 when Democrats and Republicans could put people who didn't respect racial equality and support libertarian economic stances.  

There is also the imbalance caused by the 2000 and 2016 elections.  The lower courts have been more flexible over the years.  But, the Supreme Court didn't have a Democratic appointed majority for over fifty years or a Democratic appointed Chief Justice (himself a conservative) since the Truman Administration.  That's going off the rails without the problems with the last three nominations.  

The public and some members of Congress realize something is wrong. They might talk about it somewhat simplistically.  What else is new?  Breyer, Barrett, and Thomas (and Alito in the past), however, aren't really showing themselves to be much better. Perhaps, humility is best here. 

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Note: I added a new website to the blogroll, Balls and Strikes, which aims to provide a progressive view of the courts.  

A major constitutional/legal dispute these days is religious liberty limits to Big V rules. Someone who is generally friendly to religious exemptions (probably too much) argues religious exemptions to vaccine mandates are problematic.  I agree, and to the extent we have had them, in recent years, there have been problems with their usage as well.

Finally, perhaps worthy of a separate entry or something, but the latest attempt to compromise on a federal voting law looks good. Manchin is for it.  Like his support of a filibustered background check years back that 90% or something of the public supported, will this actually come to anything?

Odds and Ends

The Failed Promise: Reconstruction, Frederick Douglass, and the Impeachment of Andrew Johnson by Robert Levine was an interesting account. The beginning was the most notable with some early hints on why Andrew Johnson (Unionist and against slavery later on) seemed not a bad VP option. The book later on, though we got some interesting stuff thru the eyes of Douglas and some other black leaders, covered more familiar ground. But, overall interesting book with a Douglass speech in the appendix.

The Hallmark movie yesterday, Roadhouse Romance, was a low key affair with a basically new woman lead and a more well used male lead. The net effect was charming if a bit rough acting along the edges. Good line - country music is "three chords and the truth." The Sven movie was an Abbott and Costello monster movie that I didn't catch.

Football season began with Buffalo losing to the Steelers and the Jets losing to Carolina (where the old Jets QB went). Jets looked better in the second half. The Giants are playing Denver today, so all the "NY" teams sorta played teams they could beat though we shall see how the Giants do manage. [Not too well.]

9/11: Twenty Years Later

As one ages, it seems that some things shouldn't really be that long ago sometimes, but it is. You watch some film or television show, for instance, and realize that it was on decades ago. Wait, is that the Winnie from Wonder Years as the lead on Hallmark movies? Is Kelly Bundy really almost fifty now? Then, various things happened, and even 2016 seems a long time ago.

9/11/01 does seem a long time ago. I was in mid-town when I first heard about it. One moment that is in my memory is a woman reporter (her sex is not too relevant, and me saying that annoyed someone, except that the voice sticks in my head, not any voice, her voice) with a cry reporting the collapse of the second tower. Passing by a church that repeatedly had funerals also. I did take the subway uptown that afternoon.

I don't think "everything changed" at the moment. Life staid basically the same for me and many others. Yes, the concept of a terrorist attacking us suddenly was real. But, one thing that helped was that it seemed something of an one-off, even though low level acts (bombing mailboxes came to mind, this was before they were altered) seemed fairly easy to do. Some were stopped. Still, we didn't suddenly become Israel or something. 

I am a live-long NYC resident so it bothered me that the attacks were used (abused) to promote some sort of misguided patriotism or that questioning Bush policies or something was seen as almost spitting on the graves of the victims.  I was in midtown; I recall seeing smoke from downtown. Midtown was largely empty of traffic even a day or two later.  When I go to the Union Square subway station, I still can see (if many sadly worn) a wall with the names of the dead.  I can easily go see the WTC site.

So much has happened since then.  The people directly affected obviously have special memories and emotional reactions.  I have limited reactions since even though I lived through it, as something of a local (did not live downtown or something), it still was "out there."  I realize it provided a moment of end of innocence for us.  But, we weren't that innocent and again it felt something of a one-off without follow-ups.  

(This might seem harsh, but compare it to mass shootings, which seem to happen again and again.  A single shooting involving little school children is a special event that you can write off somewhat.  Repeated shootings? Not so much.  Again, those directly involved, including fighting future terrorists, would feel somewhat differently.)

The end of our military presence in Afghanistan is probably well timed, though too late (like the end of World War I, ends of wars should not just be nice dates).  Some then (I was wary but not as strongly against as with Iraq II) and now question our involvement.  Seems hard to double guess when the government was harboring Bin Laden.  

Still, you go there, and it becomes open-ended.  As one person noted, killing Bi Laden provided an opening.  Obama was not Biden though -- he was less sure of himself regarding military judgment calls.  Plus, with Trump signing an agreement, Biden wasn't acting on his own either.  Made it easier.  Not easy -- had to stick to it -- but easier. 

I have no profound thoughts for 9/11 twenty years later.  Other than this entry, I have no special things to do or anything.  Local baseball teams honored it, the Mets stadium serving as a emergency center at the time, and the manager (Bobby Valentine) having an emotional connection.  The "American Pastime" has general symbolic meaning there.

It is still a memory, sort of my JFK assassination, though I think America was a bit more hard-ended by 2001. 

Odds and Ends

Supreme Court: The Order List is one page. For one case, "The motion of petitioner to dispense with printing the joint appendix is granted." Various rehearings were denied. Kagan didn't take part in one involving the U.S., probably her being involved in the case when she was solicitor general.

They will do the "long conference" to deal with a bunch of pending stuff around the end of the month. First Monday in October (beginning of the 2021 Term) is fast approaching. Oh, Breyer is continuing to promote his book and annoying liberals.

Books: I have been adding content on the Teach N Thrive website (see blog panel) for a while now. The web creator is expanding to books, but the website is not up yet. When it is, I will provide basically history book reviews, including a few covered here. 

I read or skimmed a couple books by Peter J. Hotez, a vaccine scientist.  He mentioned Paul Offit, who is in the same field, but has done more media/advocacy (including books about various scams).  I found Bad Advice: Or Why Celebrities, Politicians, and Activists Aren't Your Best Source of Health Information on a library free rack. No one wants to buy it on Ebay yet, but it's an interesting and down to earth book.  While covering the subtitle, you learn something about his life and work. 

(The practice of NYPL to provide a rack or little red kiosk for free books, including those donated or taken out of circulation, is a good idea. It's like Strand Book Store or some other store having a cheap rack, which has a lot of eh stuff but you can find some good stuff there.) 

Sports: NFL is back with a Thursday Night Football game (a Tampa game being over after 11:30 PM seems unnecessary) that was the proverbial "good" (if at times messy, including a key missed XP) game between Dallas and Tampa.  Let's say if Dallas is this good consistently, the Giants should try to find a way to sneak in as a wild card team. 

Pretty Boy won on a final drive, as required. Dallas stopped them repeatedly, one of the scores a result of a turnover, but of course, in the final eighty or so seconds, they couldn't find a way to stop them from scoring the winning field goal.  It's getting a tad old, and I'm sorry, the result is not that "great" when it is same old same old.  

Baseball is still going on.  The Yanks are in the midst of a losing streak, allowing the Blue Jays (long winning streak) to knock at the door. Problem is that is it is hard to sustain that sort of thing and hope the Yanks stay away.  Still, at the moment, the Blue Jays are only a half game away from the Wild Card with the Red Sox and Yanks basically tied up.

The Mets had two weeks of the Marlins and Nats and managed to go 9-5. The Braves had to deal with the West, so that allowed the Mets to gain a bit of ground, but struggling to even win those games (they just went 1-2 vs the Marlins) doesn't bode well for their mid-September real team run.  The Braves didn't make it easier for themselves, but managed eventually to win in the 10th (with a two out hit) to lead the Mets by five games, less so the Phils, who continue to tease.  

There are some races technically open though it might be the only real battle is for the last NL Wild Card slot, which the Reds had for a bit, but now are a bit behind the Padres.  The Padres had a major slide of their own, but I think they somehow will manage it. 

The Giants have a bit of breathing room versus the Dodgers, but it would not surprise if the Dodgers sneak up on them. Since a Wild Card game is a crapshoot in many cases, winning the division there is very important.  

More Baseball: A look at the paper provides some more baseball fodder. So, Mets fans are upset that they were once up for four games and eventually were down by 8.5 (now 5) in the course of August? 

How about this stat from ex-Mets reporter KA:  "On August 27, the Blue Jays were 9.5 games behind the Yankees, they are now just a half-game back (and tied in the loss column) for the second American League Wild Card spot."  Ouchie.  This was after it looked like the Yanks went on a nice run after the break and had a comfortable lead in the Wild Card race.

(But, they still have the lead, if barely. The Mets can factor in a bit with a Subway Series coming up next.) 

[Update: The Yanks played poorly in the first game, but showing how hard it is to catch up, the Blue Jays blew a chance to get a wild card slot by losing to the Orioles.  The Braves won, but the Phils lost, so the Mets are closer to being in second place.]

Meanwhile, after a National pitcher was tossed early for hitting a player, the Nats player who was hit earlier that seems to have led to targeting later basically won the game for them.  Even with the Nats having to go with long relief.  That is probably the best way to send a message.

Texas Abortion Law: Further Developments

A good discussion of the Texas abortion law. This sort of deep dive should regularly be done to help us understand the laws involved in key cases like this. Two people known for their abortion writings (Mary Ziegler and Melissa Murray, a historian and a lawyer) helped.

We also have various op-eds. Linda Greenhouse overall sees the anti-abortion laws as basically a wrongful use of sectarian religion (concur). 

We also have two supporters. One talks about how the science is gaining on the pro-choice side. But, really, what has changed but somewhat more knowledge and fetal surgery? The same basics hold. What makes this particular law, for instance, any less wrong? Viability didn't change much. Forced pregnancy is not so much easier or anything. We know the same basics about the moral, religion, and other factors in decision-making. 

Another from a Southern Baptist (right after Roe, that religious tradition supported leaving it to the individual in many cases) viewpoint appears to try hard to be moderate.  Factoring the various hard questions given nature of the law, including the troubling legal aspects.  Noting how society in various ways helps an abortion taking place.  

But, the op-ed is clearly from a "pro-life Christian" (as that term is usually understood; all these terms can be spun in various ways) point of view.  An "unborn child" is involved (most abortions occur in the first trimester, if not so early to fit under this law, including when many would not use that term).  Each abortion is a "failure" for both the woman (not always a woman; many girls, some trans and non-binary people) and said child.

Really now?  If a woman is raped, is it really a failure to have the abortion?  The implication is that a birth could never be a failure.  But, many do not believe that.  There are various scenarios where an abortion seems to be the appropriate choice.  It need not be considered a failure. Conception sets into place a process.  Some chunk naturally are miscarried.  Is that a failure or just nature taking her (let's say) course?  

She notes that "The highest purpose of human law is the protection of human life, from its beginning to its natural end."  Again, people debate what "human life" in this fashion truly entails.  Also, how do you truly protect human life?  If fifteen year old girl -- to take an easier case -- is not ready to give birth, perhaps human life is best protected via an abortion. 

===

President Biden asked the DOJ and HHS in particular to look into the Texas law and how the Biden Administration should respond.  Today, AG Garland announced a civil suit against Texas to block the law.  For instance, would it not interfere with federal prisons being able to provide health care to its women prisoners?  

[This blog post has some helpful links and summaries.  Note how the "heartbeat" quotation usage. The journalist behind Jost on Justice wondered in a tweet about just that.  Many have noted that at the six week guidepost -- actually weeks earlier given how pregnancy is usually counted -- does not really  have a true heartbeat.  

It is more a blip that is heard on machines.  So, he argues quotations to signify a word is not really being used normally, a sort of scare quotation, would seem to be appropriate. And, I think he makes a good point. 

Maybe, even "six" weeks is appropriate.  It was noted that many men are not aware of how pregnancies are counted.  I think many people are ignorant there.  After all, we are continuously warned about the ignorance that leads to pregnancy, and not just by teens.  (Update)]

After some noises about another approach got some upset, this firm attack impressed various opponents.  They also liked the Administration going after federal workers with a vaccine mandate though the post office and the other two branches would not be included.  It's only eight months in (soon) and the Biden Administration had a lot of activity, huh?  

Anyway, there is obviously a lot of debate over the approach, with various people saying it is sound (but who knows how the Supreme Court will rule).  We will see what happens, including if the Administration will do some more things. 

===

Friday: 5CA decides and does so with a gratuitous anti-trans potshot (at least one of the panel -- though the opinion is unsigned -- is a known anti-trans judge).  Maybe we forgot, but the Supreme Court acted when the 5CA granted an administrative stay (deemed by  various law types as a dubious move) of the district court opinion.  They got around to dropping the opinion to keep it in place on take out the trash day. Coincidence?

The opinion is summarized here. One thing various people flagged was a footnote:

The district court felt moved to “note that people other than those who identify as ‘women’ may also become pregnant and seek abortion services.” Order at 2 n.2. This notion, whatever it might mean, ignores that the law applies only to “an abortion on a pregnant woman.”

One thing some people (to the disdain of this nature of some others) have noted was that "women" aren't the only people who might need an abortion. Trans and non-binary individuals also might.  If the judges here are so confused, that is what that probably means.  As to the last bit, are pregnant girls, transmen and non-binary people not covered or something?

Jackass.  We also have Ivy Tower guy (though granting it unfortunate) says "But, for better or worse, procedurally the court is correct."  One law professor / appellate litigator (far from alone) said he felt the reasoning was "thin."  And, including members of the Supreme Court, others are out there who agree with him at least to some degree.  No comments allowed though.

ITG, like the 5CA, says the way to go is for someone to violate the law.  But, that leaves people open to a lot of liabilities, which is why other ways were found to avoid needing to do that.  The summary says the 5CA will look at once potential party that the district court says has no immunity, but the court holding things in place (continuing harm to those who need abortion services) does not bode that well for that either. 

And, the wheels continue to go round and round. 

SCOTUS (Mexican/U.S.) Watch

Abortion: The first bit of Supreme Court news comes from the Mexican Supreme Court. In timing that seems not totally coincidental, they 10-0 struck down an anti-abortion law.  There is a Spanish language version of the opinion at its website, but have not found an English one yet.  As I understand it, an earlier opinion said abortion could be made legal, but that still left local areas to have the power to block it. 

If one translates (Google Translate) this press release, "As a majority that exceeds eight votes has been reached, the Court's reasons are binding on each and every judge in Mexico; both federal and local." I believe from Gay USA that various other hot button issues were split, so a ruling was not so universal. There are ten judges, so I guess there can only be one dissent. 

[Meanwhile, here, there will be some protests for abortion rights and other things.  Here is a good article on what to and not to look for at protests.]

SCOTUS Orals: Moving to our own Supreme Court, the first three months/sessions of oral argument will be in person, but without non-press (full time credentials) public access. They will continue live audio. No more phone stuff / one at time stuff (one assumes). 

This pleases a lot of legal types. I'm less concerned about a slight delay. If the audio was allowed in the afternoon (when the transcript drops), I would be okay. But, it helps. I would rather have video, since the public (and even some press) won't be able to access the oral arguments of the 2/3 legitimate Court. The building is closed to the public for the time being. 

Death Penalty:  John H. Ramirez accepted his fate -- execution -- but wanted a spiritual advisor to lay his hands on him and pray as Ramirez died.  Texas only would allow the advisor to be in the death chamber, something that has been a matter of dispute in various shadow docket cases in the last couple years.  It might have been useful to take a case for argument to clarify something that repeatedly split them and other judges. 

I don't know if he somehow challenged his execution in the past.  It would seem so, since the summary has him being sentenced almost fifteen years ago.  He murdered someone in gruesome fashion (over twenty stabbings), fled to Mexico, and eventually was caught.  A one-off murder like that does not to me seem like a "worse of the worst" scenario.  He is only 37.  If you accepted your fate here, one might think those who are sentenced to a term of years might be suffering more.  Subjective thing.  

As to his claim, moving past any procedural issues that I have little reason to opine on, the lesser request of prayer probably is the strongest. As a matter of discretion, probably would let the spiritual advisor lay his hands on the guy.  But, as a matter of mandatory requirements, somewhat hard to argue that the state has no interest in avoiding someone not a state official to touch the guy as he dies.  Always a chance of some problem there. 

Mind you, I thought Hobby Lobby supplying their employees birth control coverage could be required too.  To be fair there, prisons generally get to have stronger rules, even with a federal law in place specifically to protect state prisoners.  Again, maybe if the Supreme Court had a full argument on this question -- which came up to them at least three times -- there would be a bit more clarity on the rules in this context.  

Meanwhile, an article about various things people on death row can ask for when they are about to die.  

Supreme Court says ... at around 10 P.M. D.C. local time, an order dropped that GRANTED CERT, which is a tad surprising though given the multiple cases cited above and concern for religious liberty (Alito granted the overall claim of having a spiritual advisor was a credible one) -- not totally ad hoc -- only so much.  

[This article discusses three shadow docket cases; another later was sent back to determine if there was a good reason to deny the request.]

A special proviso was added to schedule it so it would be heard in October or November.  No dissent noted.  Anyway, good move.

Orders: There will be an Order List this Friday.  

ETA: The orders were bland, but we had more late Friday stuff, if only an extended list of questions to address in the death penalty case.  Why it dropped late is unclear, but maybe they just are used to late Friday drops.

A Phone Story

Friday was one of those tedious things. In the morning, I tried to charge my phone. For some reason, it suddenly didn't work. The battery seems to burn more these days, but it's an old phone. Charging? Never had an issue. Suddenly it won't charge?

Okay. So, I go to a local authorized retailer via the website.  This is like a twenty minute walk away, but hey, good exercise and it's a nice day.  The big store is a T-Mobile, but there is a smaller one for my phone. The person just sells phones, but checks it, and suggests the problem is where you plug in the charger. I ask where I can have it checked. 

This confuses him for some reason. His tone suggests I am asking some strange question.  Rule to the wise: try not to make other people seem like they are idiots.  He could have simply checked the website or something.  He is listed as an authorized retailer for my phone. It was not a hard or strange question for me to ask. 

I check the website again, battery bleeding low, and then call the info number. It suggests I check an online test, texting me a link. When I do it on the phone, it says I should use another device to check online. Then, why did you suggest I do it? 

I trudge home and deal with the online agent, who seems to be on a delay, and is also not helpful except for clueing me in on a cheaper rate for my phone service. Not a total loss.

I do what I should have done originally and set up an appointment at a main store, though I need to take a bus there. I dealt with them before when for some reason I was sent an expensive item that I didn't order and they handled things professionally and solved the problem. 

Guy checks the phone and the problem is the charger cord. They don't sell that separately, so need to spend almost $40 on a new allegedly "high speed" [ETA: seemed quick the first time but since then seems about the same length to charge the thing, but otherwise works fine] charger. OTOH, I will work it off in about three months with the reduction on my phone bill.

With travel time and everything (including waiting for my appointment), I was able to get back and eat lunch in the middle of the afternoon. I figured that I deserved something good and turned out to eat too much when a small breakfast-like meal would have been better.  

End scene.  Life is filled with these little annoyances.  The aim is to actually try to accomplish something in the process and you know have other things. 

Saturday Night Update

The Sven film tonight was The War of the Colossal Beast, a sequel to another gigantic man via nuclear power film that Sven can't get rights to yet. It starts with an amusingly cheesy Mexico interlude where the thought dead beast (now with a sister) is found in Mexico.

The latter half is more boring with him in captivity and twice trying to escape (without managing to do much damage other than killing a doctor). The end has him caught in a park with a crowd outside looking on, after people were told to keep away. He appears dead this time. The sister (and some Mexican locals) overall provides the most life in this film.

Meanwhile, the Mets (vs Nats) split a doubleheader (one via a 9th inning extras win, thanks to multiple unearned runs), while the Phils (vs Marlins) and Braves (vs Rockies at home) both lost. Net, the Phils are 2.5 back and the Mets inch closer at 3.5. Lot of mediocre baseball.

Finally, Christmas in early September with the short, but well written and covering most of the bases book, Christmas: A Candid History. Some worker stuff for Labor Day.

More On the Texas Abortion Law

I tacked on comments on the last two entries, but seems useful to provide a new entry to say a bit more about the Texas abortion law and related stuff.

I have criticized this guy (did so without attribution one place [comments] and he felt it necessary to "correct" me without actually fully responding ... thin skin). Note the famous cartoon at the top of the page. The useful thing here is to use such people as a "type" to critique. I felt that way back to my teenage years about op-eds. They provide useful short discussions to play off of.

I confuse two people on that blog to some extent, but one at least has doctrinaire views on such things as freedom of speech (so much I feel darn conservative*) and "departmentalism" (which can be an unrealistic approach where each department of government gets to judge constitutionality) and so forth. He is a symbol of the ivy tower who is too full of their own theories.

[Aside. Some woman lawyer noted she thought use of "people" to reference those who have abortions seemed a bit arch or something.  But, I have seen one or more person remind us that trans and non-binary people have abortions.  Such people do not always feel "woman" tells the whole story.]

Such people regularly are not useless. They are informed individuals, who might be experts in particular things, providing details for the general reader.  And, the professor's discussion of the procedural questions on an academic level is fine on some level.  Take that link I provided to his latest comments.  Yes, the law is not totally free from judicial review.

But, that is a rather weak version of the criticism.  I'm sure you can find someone who says that, but even they probably would admit with mild prompting that they recognize that at some point the law can be subject to judicial review.  Surely, lots of people commenting readily say that. They reference the DELAY as women in Texas can't have an abortion.  

I don't think the discussion, with its talk of "hand-wringing" and so forth seriously addresses this.  AGAIN, sorry to cap lock, it is fine to discuss in detail the legality at hand.  One lawyer helpfully spelled out the issues, including reference to Ex parte Young and all that.  I saved it for my own reference.

It still is quite possible not to ivy tower-like act like it is all theoretical.  Lots of litigation has time lags, but much less has such immediate harms with these stakes. There will be people who won't be able to obtain an abortion -- "able" here is a matter of general human decision making, not pure possibility -- or at best will have to deal with more complicated, costly, dangerous, and for some, morally fraught later in the pregnancy abortions.  This is part of what the "hand wringing" is about.

The person notes that one way for the law to be addressed by the courts substantively is to have someone break it.  Now, even that, might not get you there until someone actually goes after them.  One brief I saw noted various state actors are required to enforce the law.  But, many laws are not actually enforced. Think of sodomy laws back in the day.  

Still, that came to mind for me too. The difficulty of legal liability in the short term at least is why clinics have traditionally went the route of pre-enforcement challenges.  Equity (which is in place in part to clean up the nastiness of strict legal rules) alone warrant a similar approach here, if possible.  The legal liability risks is a "substantial burden" on abortion rights. Planned Parenthood v. Casey specifically blocks that.

The professor earlier said this and it annoyed me. Again, I cite this as an example and avenue for response.  Such comments are not unique, though the specific way they are framed might be different:

Justice Sotomayor offers some judicial supremacy, calling the law "a breathtaking act of defiance--of the Constitution, of this Court's precedents, and of the rights of women seeking abortions throughout Texas." She is 1/3 right--it defies the Court's precedents. But I presume the Texas legislature believed the law was valid under its reading of the Constitution, under which women do not have a right to seek abortions. Agree or disagree with that position, but it is an interpretation of the Constitution that the Texas legislature is entitled to make, if it wants to live with the consequences of being wrong about what the Court will do.

This is wrong for various reasons though it is nice he finally opened comments. (He apparently accidentally opened it one time, a person mildly critiqued him, and he closed them again.) 

Sotomayor did not offer some "judicial supremacy" as the term should fairly be applied. The concept is that the Supreme Court has a somewhat absolute ability to determine what is "constitutional" and other bodies must follow.  The more limited view is that the ruling applies to the case at hand.  

It is unclear to me how this applies here.  She is allowed to herself opine on the constitutionality as much as some other governmental actor, isn't she?  She is responding to why the specific case should have been decided differently.  The claim is an unfair potshot. 

Taking the idea that the Texas legislature can attempt to apply its own view of the Constitution for granted, why is Sotomayor not correct about the "right" view of what the Constitution means?  It is a rather extreme view to argue there is really no "right" view at all.  As if, if Texas was willing to take its chances, Sotomayor cannot say a law that discriminates against Catholics is "unconstitutional."  Again, how is that wrong?

The same thing about the "rights of women."  You might DISAGREE with her -- though it is unclear that he does -- but their rights can reasonably be said to be violated.  Since "1/3" is used, I take it that he is using those three things to determine the fraction.  

What seems to be his problem, I guess, is the "breathtaking act of defiance" part.  That is, his view is that Texas gets to try, so it isn't really that.  Confusingly phrased, if that is the point -- at least, it seems to be given his response that seems largely unresponsive. 

Even there, taking how we actually approach the law, over his possible view of how it should be approached, they are defying the law.  You might think that is a good thing. When the now (at least for the time being!) governor of California as a lower level official went against state policy and married same sex couples, based on his own constitutional views, he was "defying" on some level, but many rooted for him.  

(I saw "some level," since you very well might argue there is some right to challenge a law, hoping to be eventually upheld.  But, especially here, with someone so concerned with proper frames, there are various levels to a word like "defiance," especially when used in a singular quickly written dissenting opinion.  Using my overall policy of fair minded criticism, again, I think his reply is an unfair one.)  

So, why is she only 1/3 right again?  His other critiques basically amount to at least partial disagreements with the assumptions of the dissenters. Fine enough, but as me and many others note, this is all a matter of discretion. And, as Sotomayor noted, the district judge provided an extended argument on why at least someone (even if you don't agree with it all) has standing. 

Again, equity and prudence in general (see Roberts) warrants holding up the application of the law.  One that will harm a lot of women until the courts somehow get around to interpreting it and needing to (unless they are clowns) note it blatantly violates Planned Parenthood v. Casey.

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One particular travesty of this law is its broad reach to those that "aid and abet" abortions. Just what this means is unclear though it seems to go further than merely applying to doctors and immediate medical staff.  

One thing litigation would have to determine is its reach. For instance, in theory, mere advocacy might apply.  At least there, I think even conservative judges would be wary about being too broad in scope.

To note a possibility, partially on the litigation extravaganza possibilities, I received an email from Lyft (the ride people) -- I signed on to them when COVID early on made mass transit seem risky -- strongly opposing it:

We want to be clear: Drivers are never responsible for monitoring where their riders go or why. Imagine being a driver and not knowing if you are breaking the law by giving someone a ride. Similarly, riders never have to justify, or even share, where they are going and why. Imagine being a pregnant woman trying to get to a healthcare appointment and not knowing if your driver will cancel on you for fear of breaking a law. Both are completely unacceptable.

This reminds me of the concern regarding tracking people via third party means (phone calls or car tracking devices) having First and Fourth Amendment implications, such as concern about privacy of personal associations.  There are many moving parts here and "aid and abet" will bring within its ambit a lot of them.  This tends to be the case in many cases. We are a united whole and must join together. 

The email notes it is setting up a driver defense fund and donating a million dollars to Planned Parenthood.  Uber says it will support the former, but the reports I have seen did not say it will donate money.  

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President Biden and VP Harris in separate statements strongly criticized the decision and law overall.  Biden directed the HHS and DOJ in particular to look into the matter and overall promised to find a way to protect the rights of women in Texas.  It is unclear what immediately this would entail though Jen Psaki (press secretary) referenced a national abortion law, which Nancy Pelosi promised will be brought to a vote.  

(I have seen this national statutory abortion protection idea come up before, and there is always some problem, including what it should cover, anti-abortion Dems, the filibuster, and an overall lack of urgency.) 

And, Pelosi is all about only doing that when she has the votes.  A concern there is that the Supreme Court will target such a law, though we don't know yet just what it would say.  But, as Chris Hayes noted on Twitter, that is a problem we face when it comes. After all, we are a far way from the law even passing since we do have the U.S. Senate.  

I agree on some level that Dems got too complaisant about abortion rights on some level.  The writer's overall tone has a lot going for it.  But, he repeatedly is more rhetoric than realistic voice, which is fine on some level -- people have different roles -- if something that still stands out.  

For instance, this "privacy protector" idea (which a bunch of people "yes man!" him on Twitter for) seems overly cute.  As but one person noted, it isn't that easy to get around the Hyde Amendment.  The purpose of the amendment is to not allow the federal government to get involved in the abortion business.  This, which at some point will involve some sort of funds, does the opposite.  Still, think big, man, and continue to amuse us with your daily dealings with your smart aleck/cute sons. 

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Ultimately, I don't know exactly what this law will wrought. Its breadth -- which other states now might follow with the Court letting it stand -- suggests a lot of horrors.  But, the very breadth might require them to temper the blow.  Pandora's box.  

It also might be all a holding action until the Supreme Court decides.  We shall see.   

ETA: One of the second generation, so to speak (Anna S. is now in college and doing things like writing Lawfare pieces), High School SCOTUS contributors (class of '24) wrote a very good summary of the abortion ruling, including lower court developments. 

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* One blog was a strong denunciation against local officials letting the courts handle the question of people putting vulgar (think "Fuck Biden") signs on their front lawns.  He argued this was obviously unconstitutional, citing various Supreme Court precedents.

But, do they really?  A big vulgar sign in front of a home which children might pass daily is not the same as briefly seeing a jacket in the courthouse, sending Snapchats to your friends, sexually themed books and magazines, and a whole slew of other cases.  If "fleeting" obscenity can get you in trouble merely if said on television, why not here?  

The permanent open sign next to your home to me raises novel questions. There was some 1970s case involving a flag put up on someone's home and they decided it on vagueness grounds or something.  Just what is allowed here? Can't stop at "Fuck Biden." Since no one reads this, what about "Pelosi is  C-Word"?  Something about seeing you next Tuesday.  

Political speech, right?  Or even use of the "N" word.  It is not like a "fighting word" in that context, is it?  But, hey, it is just down outrageous for a mayor -- partially for political reasons [hey, they have the right to try, right?!] -- to toss big vulgar signs Dennis the Menace might see on his way to bother Mr. Wilson to the courts to decide.  

There was also a continual blather about limits on speech at public stadiums and so forth (think hateful speech), including not allowing student athletes to bad mouth other teams or something as a violation of sportsmanship rules.  This all was not just problematic, but GLARING on free speech grounds, as it was all so obvious.  I think not.