Frankenstein Meets the Spacemonster

This week's Sven movie is a ridiculous one that is pretty fun with decent pacing that makes it also painless too. "Frankenstein" here is actually a human robot that is injured by invading aliens, one who sounds just like Jon Lovitz (1960s, so not him).

The set-up is decently done, if with corny aliens, but then it gets pretty low rent with a lot of stock footage. The actual final battle is brief and covered with smoke. One of our heroes going to some stand in Puerto Rico, asking for a phone, and calling in an alien invasion to some lone soldier is prime drama. The movie sort of just sputters out.

This Is Your Mind On Plants

Michael Pollan is a well known writer on food and other matters.

This book is more limited in scope than his most well known books, basically three essays on opium, caffeine, and mescaline with a specific concern with his own personal experiences.

The first chapter covers his own personal experience growing opium in a more anti-drug era, when OxyContin would turn out to be the true menace. This was for me the best chapter.  It had something to say about opium while the reader follow along his own growing experience.  Pollan left out a section discussing how he brewed some opium tea, putting it in here since he no longer would have to worry about criminal liability.

The chapter on how caffeine revolutionized history to me seemed somewhat incomplete and I didn't quite buy it. And, regarding his own personal experience cutting out caffeine was also both incomplete and a bit unbelievable.  Pollan barely referenced decaffeinated coffee.  He notes caffeine doesn't really add to taste.  So, the ceremony and taste of coffee very well might be in place without the caffeine.  

And, his hyper response to having caffeine again seems a bit much. I'm not a big caffeine drinker, but regularly had a large cup brewed at home from espresso coffee.  I at times took a break with decaffeinated coffee or some coffee substitute.  I did not have some grave effects.  The book could have at least talked about coffee substitutes some more.

The mescaline chapter had some charms, but it also was incomplete and had a personal flavor that did not do it for me.  The discussion of Native Americans and peyote use was interesting, including his interview with various people.  But, he alluded to other sources without citation of what they had to say about Native American experiences. 

The Supreme Court cases concerning peyote (briefing covered) and ayahuasca (the drug is cited; not clear if he is even aware of the case) could have been discussed more.  One theme of the chapter is the concern of Native Americans that non-Natives usage of psychedelics was a threat.  The peyote case involved a non-Native American (though it is often forgotten about).  Also, the case opens up a chance to learn about Native American experiences, which the author says he could only so far obtain.

Pollan has written about his experience with mind altering drugs (or whatever one wants to call them) before.  His joy as an grower of plants here is about matched by his experiences taking them.  He talks about his use of opium and mescaline, the latter including some sort of ceremony with his wife and a few others.  It was some sort of spiritual experience.

He used a lot more words.  To me, admittedly I didn't experience it, it came off as somewhat pretentious.  The drugs alter your consciousness, changing your senses.  As part of a wider ceremonial practice -- the peyote ritual -- on some level I can respect what is involved here.  It is a community matter, combined with a basic connection with nature.  

Pollan's experience seems more some sort of mind bending exercise. There probably is some fascination there, but after a few paragraphs, it seems to this reader as not too fascinating.  Again, he wrote more about this elsewhere, including how the substances involved can have value for mental health and so forth.  It's an interesting thing to examine on that level. Mind altering drugs are after all the point of many antidepressants.

Anyway, mixed rating for me.  The first chapter -- good.  The second -- tiresome after a while.  The third -- ditto, though like the second, it has some interesting aspects.  The third is broken down into parts, so it is easier to read and skip over the boring. 

A final thought. The last chapter took place during the Big V (COVID).  It is somewhat a matter of my own experiences, but I continue to think there is some exaggeration regarding how isolated we all are.  We are not literal prisoners in our own homes.  People can go out and so forth.  There is more limited movement, including for chance of travel and doing certain events (especially entertainment related).  

But, the author is a well off person in his sixties, a writer with his wife.  Just how much did his life really change?  

ETA: Checking on television ... again, why can't there be more recognition regarding COVID?  Hallmark movies are somewhat understandable, since they are fantasy enterprises, but is really hard to show people wearing masks or something? 

SCOTUS Watch: Botched Execution & Other Matters

We have new SCOTUS related post at the "real blog."

There was no conference last Friday, but some action this week all the same. First, they worked out a bit more how the oral arguments will go in the Texas abortion cases (earlier they pushed back arguments scheduled that day to make room). Basically, the most notable thing, the state and private parties will have separate argument time, at least in one of the cases.

The next order seems to tee up an arbitration case to replace one that was dropped. See here for the details. The order itself merely grants a stay, but I think cert. ultimately would make sense. 

===

Oklahoma was due on Thursday to re-start their executions, having multiple executions scheduled over the next few months. The lower court held it up, there being challenges involving the lethal injection protocols. Yes, even after they spent years examining the question on their own. 

(The docket page of the Supreme Court case can provide access to briefs from both sides. One thing that is a tad ironic is the claim  with religious liberty connotations.  It just goes to show how open ended that sort of thing might be.) 

There are, as usual, various issues involved in the cases, including a claim of racism in the jury process.  The first person up for execution was waved forward by the state pardon and parole board by a 3-2 vote.  Okay. This shows that even a case where the details seem less iffy (murder in prison) has question marks.  Moving past that the crime happened over twenty years ago.  Same issues with executions so long after the crime again. 

The Supreme Court -- without any explanation on either end -- overruled the lower court, 5-3  (Gorsuch did not take part, probably being involved in the proceedings in the past).  The order itself only posted on the Order Page some time Friday afternoon.  Various reporters posted a preliminary link right away -- that happens sometimes; the posting delay was longer here. 

(The docket page for each case is an "inside baseball" thing that many will not be aware of, but it provides helpful breakdown of developments as well as briefing that helps clarify the arguments on both sides.  

SCOTUSBlog has a page for each case the Supreme Court accepts for argument as well as some that are pending.  These too are helpful resources.  For instance, when SCOTUS grants a case, I usually can insert the case name in a search engine and the SCOTUS page for it pops up.  This allows me a quick way to determine what the case is about.) 

The execution took place later that afternoon.  It did not seem to go well: "He began convulsing and vomited. Medical team wiped his face. He was still breathing. Convulsed and vomited more."  The reporter referenced compared it to the Lockett execution. Which was botched.  

The dissenting court of appeals judge and state referenced how long this is taking and so forth.  What's the argument?  "Hey, we could have messed this up years ago!"  Oklahoma authorized nitrogen gas -- the latest "this will be great!" method -- a few years back.  But, it couldn't figure out a way to formulate a way to do it.*  (I sort of figured there was some problems likely involved.)  The firing squad is available but last used in 1915.  

If the particular drugs they have available can't do the job, they should use another method of execution or punishment. There were two other executions recently without this sort of thing happening.  It is not like the state wasn't on notice the drugs could cause problems. The last two executions each had problems.  

Scalia/Thomas argued a specific intent is necessary to prove an 8th Amendment violation.  At some point, even that seems to have be met here.  Indifference of clear possible harms at some point is enough of a red flag.  The current rule assumes the state has some "right" to execute so the defendant has to show the availability of an alternative when alleging the method is illegal. This somewhat perverse rule was argued by the court below to have been met.  

Either way, this result shows the problems with it.  Some theoretical ancient cruelty akin to an actual burning at the stake should not be required to stop this from happening.  [This seems to be in theory left open in the recent Supreme Court opinions that handwaved that being present here and/or resting on other grounds, basically rejecting proof of danger being present.]

The usual responses were made on Twitter as well. Tiresomely.  It is not total hypocrisy to support execution in a few cases while opposing abortion, especially given the number of abortions.  Catholics come in all shapes and sizes.  The person executed committed a horrible crime. The 8A does not have a "horrible guy" exception.  It doesn't take a philosophy or legal degree to realize these things.  I assume many know this.

Again, if the state is allowed -- contra to the decision of the lower court, which placed a stay to allow the factual issues to be determined -- to execute someone, the Supreme Court should SAY WHY!  If they should not, the three justices who think that should SAY WHY!  I know Sotomayor is tired of representing and Breyer is tired from his happy-go-lucky book tour and all, but they still should have wrote a dissent.  

Oklahoma does not have some "right" to constantly fuck up executing people, even if executions are currently constitutional.  Well, functionally, they do.  

---

The Biden Administration might have split on who they wanted -- talk of a California judge who some might want to have Kagan-prepped to be a justice, but she didn't want the job -- but the acting solicitor general was confirmed to have the job permanently.  Years back, did Miss Idaho (really) know how far she would go?  

Solicitor General Kagan began with the re-argument of Citizens United, the big campaign case.  H/t Amy Howe (and others), we now have confirmation that the new SG will also start things off with a major case: "For petitioner: Elizabeth B. Prelogar, Solicitor General, Department of Justice, Washington, D. C." 

===

There was a Friday conference and an order was dropped granting some cases for review.  Two major issues.  To quote two reporters, "agrees to consider limiting EPA's authority to curb greenhouse gases from power plants, will hear appeals from coal-mining companies and Republican-led states" and "Red States' bid to reinstate Trump-era immigration rule known as the public charge rule."  The latter regarding their right to bring a suit to defend the rule once the U.S. stops defending it. 

I will post this now. If anything else happens -- see below; there has been enough -- I will update.  

Update:  Yeah.  They, decided to drop a late in the day bit.  The High Federalists wanted to block Maine's vaccination mandate for not being properly respectful of religious liberty.  In their view.

Barrett/Kavanaugh thinks this would be a misuse of the "emergency docket."  Prof. Shadow Docket flags they seem to be applying a "when it feels right to us" rule.  Which is iffy if honest.  The others just reject it.  

Just how much of a threat it is to religious liberty is debated.

===

A final comment.  It can overwhelm you if you are not careful, but this post alone shows the about of information at our fingertips these days. As someone is being executed, you can have a running commentary.  Before, you can access the ongoing legal battle, reading a lot of opinions about it both in briefs, court opinions, and elsewhere. And, after, you can read more, including someone like Prof. Lain on Twitter, an expert on executions, who expressed how pissed off she was.  

Just one thing.  Again, it is a bit overwhelming. Still, it's pretty amazing and useful.  Like food in a supermarket, what you do with it is up to you. And, those who report on it should be aware of the resources available, and try to help readers with links and so forth to better understand what is going on. It's a complicated thing to do right, but hey, there are people skilled at that sort of thing.  

---

* One of these days, we will have use of nitrogen gas, and it surprises me somewhat it has not happened yet.  To be clear, this is not cyanide gas.  

I think inertia is delaying this, assisted by there being so few executions in the last few years.  The federal execution by statute follow local practice, so all of them used lethal injection.  Once nitrogen is used and it seems okay, others might follow.  Lethal injection surely has enough hardships.

Like I doubt there is a shortage of nitrogen or anything.  We shall see, including if it will work without a hitch.  Its lethal nature in non-execution contexts is only so comparable. 

Justice Department Addresses Violent Threats Against School Officials

Teaching students about structural racism has become a political flashpoint across the country. Here's my interview with one of Virginia's leading activists, Patti Hidalgo Menders -- a mother of six who's fighting the state's equity and inclusion curriculum. Via @Sho_theCircus: pic.twitter.com/qQlopoYd3j

— alexwagner (@alexwagner) October 26, 2021

I have written about critical race theory (the last part is by the teacher who runs the website). Some applications, including some distrust about the good faith of those in power and results that burden others, very well might warrant push back at times.  At least, a reasonable argument. But, this woman is all over the place. She has more of a shall we say "ethos."

But, she speaks for many, and many Republicans (including the person running for governor of Virginia; he is also "stop the steal" curious) are loathe to challenge them.  We saw this when Attorney General Garland was in front of the Senate and Republicans kept on harping on a legal memorandum concerned about an uptick on harassment of school officials. 

Sen. Sasse suggested the main concern was some offensive "yokels." Repeated attempts were made to suggest it would threaten mere criticism at school board meetings.  That is was an offensive invasion of local control. Some ideological / partisan takeover of the Justice Department.  They laid on it real thick, including Sen. Kennedy who was more offensive than usual (he usually does a Mr. Haney from Green Acres shtick).

The NYT article touched upon what is involved here:

But news accounts over the past year have detailed physical fights, arrests, charges of disorderly conduct and threats made against board members, faculty and administrators stemming from arguments over topics that have animated the right, such as mask mandates, gender issues and curriculum that deals with racism.

And, Sen. Cory Booker (who is so doggone earnest) also eventually [the first rounds basically covered various Democratic concerns, though one Twitter thread flagged the newbie from Georgia as usual was diligent with oversight type questions] flagged the real concerns involved. 

The press release (linked with the memo cited) explains what is involved and references how the Justice Department will ensure that threats are "communicated to the appropriate authorities."  The memorandum itself is entitled a "partnership" with local and federal authorities. It starts reaffirming "spirited debate" is protected.  Meetings are sought out to determine the proper path.  If localities do not want the federal government's help here -- there is all the same a whole Department of Education for these purposes -- they need not accept it.   

The level of offense, hysteria, and partisan attacks by Republicans regarding a serious issue is very offensive.  I speak both as a citizen who cares about these issues and someone with a sister and niece who are teachers.  I don't like to personalize things -- that seems the road to subjectivity -- but hey, I linked my CRT piece and the teacher who runs the website at one point outs me as her brother.  I commend her for her honesty.

The high dudgeon that the memorandum is proof positive that the Justice Department has been taken over by partisan forces is a tad much from the Trump Party.  But, we can move past that.  I do not know the level of uptick here, but it would not be surprising. There has been an increase of heat in recent years by those who feel left out, having the world pass them by.  It is both a bit ironic and understandable they call others "LOSERS" so often.

The bottom line is the need to safeguard basic civic institutions, including schools, voting, and the courts.  Sen. Sasse, who puts himself out as a civics minded type, especially comes off badly here.  Not that I have a high opinion of him by now, even if he voted to convict in the second impeachment trial.  And, again, it is just a legal memorandum with caveats and ultimately proposing meetings!  

One side is coming off as totally unserious here.  And, we are supposed to block basic things like voting rights to protect bipartisanship with them?  As I said in the past, that at the very least requires a level of willingness to be credible partners that is not being shown.   

ETA: This bit of hysteria was cited by Senator Cotton.  

A more general thing about Attorney General Garland.  People are upset about how the Justice Department is handling investigations of Trump and other matters.  I do not know how that will turn out yet though it is reasonable to think it will not go as far as warranted.  If you are upset, however, it probably goes to the top.  This roughly matches the wishes of President Biden.  He chose Garland advisedly.  

While discussing this, people still bring out his nomination to fill the Scalia seat.  People are still critical of the nomination.  I still find that rather misguided.  It still bothers me when people flag it.  Given the full reality of the situation, including the fact the Republican controlled Senate was not going to even provide a hearing to anyone (even someone as mild as Garland), opposing his nomination is even more asinine.  

In general, re-litigating things tends to be tiresome, especially when the same arguments are made, in the same confused way.

Biden / Rachel Held Evans' New Book

We stand in defense of religious freedom not only as an expression of our deepest values but also because it is a vital national security priority. The United States will continue to rally the globe to protect and promote the right of freedom of religion or belief, including through multilateral coalitions such as the International Religious Freedom or Belief Alliance.

While the details (not as much as desired) of the reconciliation bill is negotiated, I saw something cited as a central promise of the Biden Campaign. Eh. Biden promised a range of things (his ultimate four issues were COVID, race, climate, and the economy/workers) and two basic things -- being decent and being basically a qualified experienced person. You know, not-Trump. Talk about some "key" promise otherwise is somewhat bullshit.

Biden's decency and empathy -- however a bit laid on thick it might seem at times -- are likely his biggest draws. And, I do think it is on a basic level real. As is his religious faith. One person flagged that he has an asshole side. I think so -- it comes out at times when he finds some critics or something being clueless or worse. That too really is appealing. 

===

Rachel Held Evans continues to publish books, so to speak, even though she died two years ago. Her death, under 40 with two young children, was very hard for many people in the religious community who saw her as a positive, but questioning Christian voice, one that also spoke with a feminist tenor. One book she was working on was a children's book:

In the book co-authored with Matthew Paul Turner, Held Evans encourages children to “think about what makes you feel safe, what makes you feel loved, and what makes you feel brave. That’s what God is like.”

I think of religion in large part a form of poetry. I think "God" is best seen as a form of metaphor, a symbolism of something that humans need to personalize. Some people ridicule that sort of thing. I think that is unfair. A person might have a confused or even cruel view of God. But, one like that is not of that nature. The article also notes:

“The God I have come to believe in is not some stern grandpa in the sky, waiting for me to slip up,” she writes. “Instead, I’ve come to see God through the things that God has done... That God is the architect of creation, the engineer of love, and the master craftsman who came up with the idea of the heart.”

This reminds me somewhat of the God of Thomas Paine, a God he argued is shown through the universe. Evans' blog and writings are worthwhile and are particularly important to her fellow Christian believers. One was a bit silly attempt to follow biblical rules. One was a creative look at the Bible through different means. I liked it the most. Two were more geared to her experiences during her faith journey. You can also find many videos of her online.

“I’m agnostic. I think God is unlikely. I don’t believe prayer heals. If it did, sick people prayed for would be healed more often than those who aren’t,” he wrote. “But if I ever believe again, it will be in the God Rachel understood. I hope for the God of “What Is God Like?”

I don't know if her husband was an agostic before her own death. I would understand if that was the reason he was pushed into that. But, since sick people always were around, I hope not. I also think prayer can help, can "heal" without going all the way. It is like a medicine that tempers the pain. I speak in general, not as someone who uses prayer. But, when someone says "pray for me" or something, is it not a request for empathy? Is that not a positive thing? Does it not help in some fashion?

Her new book is coming out soon and is scheduled to be at the NYPL eventually. When it does, I will probably write more. 

[The History focused book review page I contribute to now has a few reviews, including three by a Muslim author.]

NFL Update

The Bills have a bye, but you can see former Jets (and Giants) quarterbacks this week.

One along with his team down in Carolina had no offense (three early points; it was 5-3 for a while, but the Giants eventually scored a TD, tacked on, and won 25-3) while Geno Smith is filling in at Seattle. The Jets (beaten and then beaten some more by the Pats) will need a back-up too. Their QB will be out for a few weeks at least.

There were many uncompetitive games over the weekend, including Kansas City being beaten 27-3 (by the Titans, who have beaten the Bills, while being beaten by the Jets). The Sunday Night game (in the rain) was competitive until late. The Monday Night Game has a couple of major teams (Saints/Seattle) with iffy QBs. One more week of action this year!

Braves v. Astros

Sports is in part an emotional thing. People find a reason to root for one side, even if objectively there is no real reason to be so passionate. In the case of the Astros (a sort of forgotten about very good team with only five less wins than the 100 win Rays, with two good divisional opponents) -- the 2021 World Series home team -- somewhat less so.

I did not pay much attention to the Astros cheating scandal, though Carlos Beltran's role did eventually affect the Mets. After their GM and manager was fired, they still managed to almost make it in the 2020 series. They also got a fine (5M? uh huh) and lost some draft picks. Their players were not penalized. They didn't have to give up their World Series trophy, aided by cheating. Yeah, it seems not enough.

The Braves only got over .500 mid-summer and still had a mediocre run in them. But, the division was worse. And, they had the luck of a weak hitting Brewers team and apparently a Dodgers team finally spent. The bullpen game strategy also seems to have helped, including overuse of Scherzer, which burnt them this series. Still, the Dodgers had second and third with no outs with the score 4-2 in the seventh. Three strike outs. Impressive.

More On Previous Subjects (Voting/ERA)

I briefly referenced voting and the ERA. I will discuss it some more here.

Today was the beginning of early voting in New York. In the past, I was wary of the concept, perhaps largely out of sentiment.  Years back, I wrote something about saying heck with tradition, but I have some desires in that direction.  I should not be too full of myself.  Still, I think there is some value to a single special day (make it a national holiday) to vote.  But, that ignores the inconvenience involved.  So, yeah, more days is helpful.  

Early voting was one of the reforms that full Democratic control of the state brought (so it came in 2019).  I first had to walk about a half hour away to the public high school I would have went to if my parents didn't send me to a Catholic high school to avoid it.  My sister now is a teacher there, having gone there herself years back.  For the primary this year, there was a closer spot.  Now, there is a spot about five minutes away.

This year we have local races, including a new mayor.  Eric Adams won a close primary and is running against the Guardian Angels / talk show host guy who likes cats.  Curtis Sliwa is not a serious candidate really, but since the Republican candidate would be a thankless role anyway, perhaps the party can do much worse.  I'm not too gung ho for Adams, but he should do okay.  I'm glad Marjorie Velázquez will be my city council person, after she lost to a more conservative guy who resigned his assemblyman slot to get the job.  The comptroller will be a progressive who AOC likes.  

[I was thinking of voting for some third party person on the mayor line since Eric Adams has nothing to worry about and he is a bit too moderate on certain issues for me.  But, I by rote started filling in the Democratic line ovals, so voted for him. It's okay -- opposition to Biden and the Democrats warrants a reminder of the importance of supporting them. Net, he will likely be a good mayor, even if on a few issues, I will be upset.

There was also a lower court judicial election -- pick five of six, five being Democrats. Now, me, that is easy, but what if I was not a Democrat? Anyway, unlike some places, judicial elections are not really advertised much at all around here.  Other than party, and their names, there really is no way to judge if you should vote for these people. The voting guides sent to us don't even provide information.  My protest, ha, is to write in someone's name here.  You do what you can.]

There are also five ballot measures, submitted by the legislature by the constitutional process in place.  I covered this before.  I decided to vote "yes" on all of them but the first, a catchall provision involving various redistricting measures.  I decided that there was too many things to vote for at once and something like keeping the number of senators in place was not ideal anyhow.  Why not leave that open to discretion?  

As usual, I appreciate having the chance to vote, and doing my part. Thank You For Voting, the book I referenced, at one point spoke about people believing their voting "matters" is on some level a myth.  On some level, since it does matter, but it isn't unclear how much.  Still, it does matter, including on a personal level.  Voting in part is a special act that is the center of our contribution as a citizen as a whole.  I agree as a whole therefore with the book The Duty to Vote.

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. Section 3. This article shall take effect 2 years after the date of ratification.

I also briefly touched upon a House hearing regarding the ERA.  Earlier this year, the House (basically by party line) voted to remove the deadline originally in place for its ratification.  There is some debate, but I think it is the case that a simple majority is all that is needed to do this.  The deadline was not part of the amendment itself.  It is like the punishment vote after the supermajority vote passes in the case of impeachment.

I linked one of the various discussion threads in a blog over its ratification for which I added multiple comments. In the past, my druthers was that we really shouldn't pass the ERA.  It seems a bit redundant and why should we focus on one category of equal protection?  Voting is dealt piecemeal in the Constitution, and it leaves something to be desired.  Also, I thought as a matter of norms, it dubious to finish the process forty years later, with so much having changed since the beginning of the process. 

I do think Congress has the power to determine that contemporary needs warrants removing the deadline.  The hearing had some assumptions that this was unnecessary, that the Constitution just provides for proposal and ratification.  But,  Supreme Court precedent recognizes some discretion there, discretion to recognize the understanding that the ratification process be contemporary.  [Such issues are covered some here.]

The limited nature of the 27A alone suggests we should not put too much emphasis on it.  I think they should have re-introduced it anyway.  Its mostly symbolic reach made congressional passage in the 1980s pretty easy to imagine and ultimately enough states ratified to make up for the few old ratification from yore.  

I still am wary at singling out "sex" here, though especially in the 21st Century, that has a broad reach (gender identity, sexual orientation, trans issues involved, while more debated in the 1970s).  Perhaps, the ratification would encourage additional amendments. That might be a good thing, since things such as voting warrants attention.  

But, I have changed my mind on the reach of the amendment. The amendment is not redundant.  Moving past the specific textual statement of "sex" (Prof. Nourse warned us about Scalia there) and not needing to use the equal protection component of due process to address the federal government (the latter, a bit of nicety only a few care about), the language is clearly broader.  How much is unclear.  That warrants careful review.

The thing is -- and this isn't really new -- just what it means is not really dwelt upon too much.  Yes, people are concerned -- as they were -- about its reach over such things like gay rights and abortion. 

When the 14A was ratified, people saw it generally as a way to protect civil rights (and do specific partisan leaning things in the middle sections that soon became somewhat obsolete). The specifics were not dwelt upon, even if some now say things like "obviously" it incorporated the Bill of Rights (people were not really concerned about if grand juries now were thing for each state) or something.  

Same here -- it was and is seen as a general matter of sexual equality.  But, the text is important here all the same.  What about the specifics of the text?  "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex." Here I move past a fairly obvious statement that the amendment provides more clarity for accepting a strong acceptance of sex as a "strict scrutiny" category.

Originalists might be concerned about how "on account of sex" has a broader meaning in 2021 than when it was proposed in the early 1970s. This might make them concerned about the length of the ratification process, leading to confusion on meaning.  I'm not an originalist, but that does concern me to some degree when looking at what the people think they are ratifying. Congress does serve a legitimizing function here.  

Due process now cannot be "deprived" while equal protection cannot be "denied."  The language is not the same though it is unclear how much it matters.  The federal government cannot deny equal protection (as a matter of due process).  But, "abridged" is broader. The Privileges or Immunities Clause of the 14A says "make or abridge."  It historically has had limited reach.  This is an additional barrier to full understanding.

Still, the word "abridge" suggests that limiting is blocked as well with congressional enabling legislation providing even additional protections to make sure that doesn't happen.  The word "abridge" is found in the First Amendment (speech) and we see how far that is taken these days.

And, there is this: "Equality of rights under the law."  That is another interesting phrasing. What exactly does that mean?  The 14A says states cannot deny equal protection of the laws.  Is that the same thing as "equality of rights"?  What does "under the law" add?  The hearing spoke of equal pay and such.  Prof. Nourse was part of the effort (Biden's baby) to pass the Violence Against Women Act.  U.S. v. Morrison rejected that as applied to "private" action, including public accommodations.

There seems to be a general assumption that the amendment, especially the enforcement clause, would provide broad protection and powers to enforce equality here.  If so, again, this does more than the current Constitution is generally understood to mean -- surely as applied by current doctrine.  

The amendment would under this light be a sort of "modern" protection of equality.  The language very well might warrant that.  Let us be upfront about the change all the same.  It would also make the opposition more understandable, perhaps, to those who wonder why sexual equality (even beyond hot button issues) is apparently controversial.  

I support a wider view of equality, particularly regarding the reach of the federal government in its enforcement.  Realistically, I do not see the ERA being ratification in the immediate future.  But, discussing its reach is important.  The hearing (which I did not watch all of, so maybe the textual nuances were covered more than I saw) was appreciated.

As with other constitutional matters, however, the true breadth of the question also should be covered. 

Books and TV

Books: I have been tasked to add history book reviews here.

The first set basically involves me writing segments for stuff I read already though for a few I re-read them. The latest, not published yet, involve stuff touched upon here -- Thank You For Voting (topical for the start of early voting) and Louisa On The Front Lines. The "front lines" here amount to a short stint as a nurse, so there is some more filler material, including covering the last twenty or so years of her life briefly.

Television: Tom Hanks' co-star on the 1980s dress-up show Bosom Buddies has died. Peter Scolari is not quite as successful, but had a long and successful career (including Newhart). Meanwhile, Astros won in six -- sort of expected; surprising really that the Red Sox lasted this long. We will see how the Braves do (ETA: won in 6). Yes, Mets, hire him; he's a pro.

SCOTUS Watch

FTC exclusive: Barrett’s chambers refused to allow livestreaming or any video for 9/12 McConnell Center event; newest justice feted with McConnell-hosted dinner, free hotel & flight & personalized Louisville Slugger bat, per just-received public.

Maybe, the Presidential Commission on the Supreme Court will be on notice about such things. The link provides more detail of what the Fix the Court records request obtained, including the Court's public information office ("PIO" in lingo) reminding event planners and so forth what ethical rules (voluntary as they might be for members of the Supreme Court) require. Barrett's refusal for open government should be kept in mind while she and others do not want to be considered partisan hacks.

On the partisan hack front, a look at the C-SPAN website to check the timing of the daily Biden press briefing provided this video:

Senate Minority Leader Mitch McConnell (R-KY) and U.S. Supreme Court Justice Clarence Thomas joined the Heritage Foundation for an even marking thirty years of service by Justice Thomas on the Supreme Court. The Senate minority leader spoke about the importance of the Judiciary, while Justice Thomas thanked all those who have helped and supported him along the way as he reflected on his time on the Supreme Court.

I wonder how Breyer feels about this and its effects on his sads on how the Court's legitimacy is more in question of late.  Quite seriously, this is horrible stuff.  You really should not have someone tossed out as the "intellectual leader" of the current Court or whatever, and place him in a blatantly partisan situation like that.  As someone said, what if Kagan had a joint appearance with Senator Majority Leader Chuck Schumer?

===

Fridays repeatedly in the last year or so have brought various special news of interest from the Supreme Court, at times later in the evening.  There is as you might recall no conference scheduled this week. But, we had big news.  The Supreme Court accepted two Texas abortion law cases, with oral arguments scheduled November 1st.  

Today being the 22nd, let's say that is very fast as the Supreme Court goes.   The speed is also a creature of their own creation. If, like four justices (including Roberts), wanted at the end of August, they simply stayed the law, there could have been a steady and deliberate legal process without such glaring speed.  It not only would be a good idea to protect abortion rights, but as a matter of good litigation discretion. 

The Firearms Policy Coalition, a pro-guns rights group, for instance, submitted a brief warning what a "keep away" law of this nature could be used for in other contexts.  It also was left to Justice Sotomayor, Breyer and Kagan perhaps (again) strategically silent, to remind that every day is a glaring undue burden on abortion rights.  

If the idea is that the Supreme Court will probably eventually hold against Texas being able to do this, it doesn't really improve the argument that they were dead wrong not to stay the law. The law being so clearly wrong even for a conservative court sympathetic to its stance on abortion only underlines it should have been stayed.  

To be clear, the two cases (though Texas was open to making it about that) were not taken to examine the substance of the law, that is, if you can block abortion where there is a "heartbeat."  The federal case concerns the power of the United States to bring its lawsuit.  The state case, looking at the question presented, is about the procedural barrier of even having the law examined until someone eventually gets sued for a bounty etc.  

We shall see what happens, but the Supreme Court is not really being "reasonable" here because (eventually) they stop this shitty law. It is especially not impressive if the idea is to provide "cover" when it gets around to watering down Planned Parenthood v. Casey.   

Some of the usual suspects might say otherwise. But, as with the Trump trio working with Moscow Mitch, their legitimacy remains quite dubious. The (eventual) removal of this issue from the "shadow docket" gets a minimum cookie in my book, at best. 

===

We have the first correction of the term. Yes, we only had two per curiams, but on Friday, an edited version (a one word typo) was dropped. 

Core Bullshit On Budget Framing

I don't watch it much, but saw a thing on Chris Hayes that pissed me off. It reminded us of how the spending packages that the Democrats are working on are so horribly covered.

We are told of trillion dollar price tags without regularly (like it is some complicated thing to say) being told it is for TEN YEARS. And, the money is less than is spent of the military. The money is going to various things. The military (Congress gave the defense department MORE than it asked for in the latest budget authorization) alone gets more.

It is bad enough that this thing is made out as merely some process story, one where the Democrats are made to look like stumbling clowns. The usual sausage making and how the Republicans simply refuse to take part in a package the public as a whole widely supports is ignored. The policy matters are ignored. But, the simple BULLSHIT framing on the money is alone so aggravating. We need to do more to constantly fight it.

Constitution Watch

ERA: The House had two hearings of note about the same time -- Attorney General Garland and an oversight hearing on the status of the ERA. Nice to see Prof. Victoria Nourse. The Republican witness tossed in some anti-trans material. Alyssa Milano provided some celebirty presence. Some links here. Some past thoughts on the matter here.

I had mixed feelings about accepting the ratification after around forty years, but as a matter of power, Coleman v. Miller seems to give Congress the power to do so. The supporters here suggested basically the deadline could be ignored. Eh. I think it a discretionary statement of ripeness. I still not clear what exactly the text will add, but have reached a judgment it is broader than the Equal Protection Clause. "Abridge" etc.

Death Penalty: Meanwhile, after delayed by the Supreme Court holding they need to allow a minister in the death chamber, the latest challenge to Willie Smith's execution was rejected. Things were held up for Sotomayor to agree there was no procedural ground left, but that the process is still problematic. I appreciate the brief discussion, which I think is warranted for each execution. Net result: executed, but no nitrogen gas yet.

TV Watch

I checked out the first episode of the new Chucky series (I liked the movies as a whole; did not watch the third and thought the last a bit garbled). It starts off on an impressive footing, with good performances, writing, music, and atmosphere. It also appears that you are allowed to say "fuck" on USA Network. The series has received some kudos as well for being GBLTQ friendly. Jennifer Tilly will be back. Maybe, they can get Catherine Hicks!

All Rise, the diverse crime drama led by a black woman judge appeared to have been cancelled after a two season run on CBS. The show had some behind the scenes drama with the showrunner, but ended fairly well. It in fact will return on OWN Network, which I hopefully have. We will see how this goes, but sounds good. The range of possible networks and platforms allows salvaging such worthwhile material.

A Taste of Honey (along with another film with the young British actress in the lead) was on TCM. It is a B&W film from 1961, which has some Mike Leigh in it. In that, I mean a realistic look at the working class without bells and whistles. It's well acted with people who seem like real figures (including a sympathetic gay character), not performers. This includes flawed characters and a somewhat downbeat ending [see link] though that part is not really totally necessary for things to be realistic. The actress still is acting today.

RIP Colin Powell (Bronx Guy)

Colin Powell, in his 80s with a medical condition that made him particularly at risk, died of COVID related illness though he was vaccinated. Many kudos, including from liberals like Melissa Harris-Perry and Joy Reid along with some not suprising "f you" type responses for him helping to sell Iraq War II. Both are fair though he did repent and later support Democrats.

SCOTUS Watch: Orders etc.

In 2015, moreover, the United States rejected a request from Polish prosecutors to facilitate Abu Zubaydah’s testimony under the countries’ bilateral mutual legal-assistance treaty. Nonetheless, the government would permit Abu Zubaydah.

Coverage of the states secret case orals suggests that the government is likely to win, but (as in the past) litigation alone has some value. For instance, even conservatives like Barrett say the "t" word (torture) aloud. And, multiple judges (Breyer, Sotomayor, Gorsuch) also specifically asked about having the GITMO prisoner to testify himself (see also that article).

A letter (cited in the opening) sent to SCOTUS from the Biden Administration clarified the situation to some extent.  [The letter is linked at the article; CNN covers it without providing a link.]  The government, leaving open the right to redact for national security, is willing to let the prisoner write about his experiences using the process (explained) in place.  This all shows how even limited access to lawyers and judicial oversight can provide some checks to the system in place. 

PCSCOTUS: We continue have coverage of the draft chapters of the presidential commission's report.  SCOTUSBlog, which even as a blog specifically geared to SCOTUS has had limited coverage, has a helpful report on the proceedings on Friday.  It is fine to criticize and/or discuss the limited nature of the commission's actions etc.  But, this requires a full accounting of what they are doing.* 

(I also saw an interesting footnote that was reported earlier.  Two conservative members of the commission resigned, including notable "sane" Jack Goldsmith.  Why?  Who knows, but it is a bit weird, and notable. They so far don't want to say why, which you know, is wrong. Note the "do nothing and support status quo" theme of some coverage is a bit off given some of the critical comments referenced in that article alone.) 

Order List: There is no conference this week, so there will be a break from the weekly order lists, but today's was somewhat more notable than usual.  First, beyond the usual odds and ends of some note, the Supreme Court granted two cases involving tribal matters for full review.  They do not seem to be major cases (as if I'd know!), but we shall see.

As noted at that link and by various tweets on Legal Twitter, the Court also by two (by definition) unsigned per curiams -- without any cited dissents (so, you know, without dissent in fact), reversed two lower court cases that denied qualified immunity in abuse of force cases.  This is basically "error correction," something that they supposedly do not really want to do.  And, a few exceptions aside, it usually goes in a conservative way. 

Some comments on Twitter suggested the phrasing might be a flag to additionally restrict qualified immunity cases (e.g., "In one of its summary rulings this morning, #SCOTUS dropped a strong hint that *circuit* precedent may no longer be sufficient to provide “clearly established” law. That would be a *huge* barrier to damages suits against government officers who violate constitutional rights.").

Qualified immunity -- one of the many things that federal legislation can address if there is a will -- has been overused.  Without dealing with the weeds, the basic idea in my view is that people should generally have a broad right to at least try to show abuse occurred.  They might lose.  But, they should at least try.  And, individual actors (like a police officer) still might be protected; the ultimate issue is having some ability to get relief from the government in some fashion.   

Error correction clearly has some intent on clarifying the law though it is done in a rather opaque way.  Various justices last term flagged their concern about giving proper discretion to police and other public officials in certain emergency situations and so forth.  Such and such officer goes to a call where someone is allegedly at risk, and they have to think in the moment. Fine enough.  As applied -- clarified by cases they take for review -- the people can show their actions are acceptable.** 

Miscellaneous Orders: After I wrote this originally, SCOTUS dropped two separate orders.  One allotted order time for various cases where the Solicitor General has time.  Another granted a request by a challenger to speed along the SB8 case (this is not the U.S. case against Texas).  What this means is unclear -- various theories on Legal Twitter.

Book Review: Skimmed: Breastfeeding, Race, and Injustice uses the experience of the first black identical quintuplets to examine this subject.  I first saw it when Melissa Murray (always good for material) flagged in on Twitter.  (As I recall, someone talked about food and the law.)  And, it is appropriate to include here because there is a lot of law, including Supreme Court cases, involved in the mix.  The rest of the book tells their story. 

One thing (though the date is wrong) that is cited is an old Fifth Circuit case that says breastfeeding is an aspect of the constitutional right to privacy.  I am familiar with the case since repeatedly it is cited in string cites when some lower court opinion references privacy cases. As shown here, it has not had much influence as precedent, even as applied to the parties involved apparently.  But, the book's legal discussion includes what "might be," and on that front, it still is important.  

One interesting connection is the involvement of Susie Sharp, who became the first (white) female Chief Justice of the North Carolina Supreme Court.   I have a biography of Susie Sharp.  This book is written by a white woman, but Prof. Murray is not.  

Also, the book makes sure to make some comments about the freedom of choice, but is clearly pro-breastfeeding. In a few spots, perhaps a bit much, since many women very well would want, e.g., a doctor's office to have stuff on the wall supporting both breastfeeding and formula.   Finally, yes, it is wrong to "moo" at people who are nursing.  I apologize, however, for laughing a bit when seeing that.  It's okay to be a bit mean silently.  

A suggestion to include the book as an entry at a new book review website was turned down for the time being because of limited attention.  But, "Books in a Flash" is finally online.  I will mainly contribute "History" books for review and those interested can click the History link here, a few books already up. 

---

* Note this line from a criticism (after I wrote this entry) on relying on term limits (which alone isn't enough, besides being a long shot anyway): "Perhaps this result was to be expected from a commission ostensibly created to study Supreme Court expansion."  

If this means "along with other things," sure. As spelled out in the executive order, "reform proposals" (more than expansion being out there) should be addressed.  I'm unsure if that is quite how many take it though. It sort of implies that was the primary reason they are there.  

The linked Slate article says these things -- including the shadow docket which has had a fairly recent uptake -- been "studied to death."  As compared to let's say civil rights when Truman had that studied?  It is upset conservatives (two less now) are on a commission -- apparently you need strong (as compared to weak links like Laurence Tribe) supporters of court expansion for legitimacy, but well conservatives? Surely not. 

The fact the analysis notes the commissioners -- who are criticized as too moderate, wary of change -- pushed back shows maybe we should give them some credit.  

** One of the cases is highlighted in this blog post.

The lower court opinion does not come off as patently unreasonable.  The Supreme Court per curiam -- without full briefing or argument -- decides by examining the facts (not their job really) that the situation on the ground is different from a previous circuit case relied on by the court of appeals.

The blog post reminds us of the George Floyd case.  I'm unsure if that is fair, since this case involves a much more momentary use of force. But, what bothers me yet again here is that the case seems to turn on debatable details that the Supreme Court reached out to "error correct."  

Maybe, the lower court was wrong.  If so, it was far from glaringly so.  The case they cite has multiple similarities to the current case.  The notable difference seems to be that the guy here had a knife on his person. The court of appeals, however, note he also was just shot with a beanbag gun. And, there was reason to judge the knife was not a danger.  

These are FACTUAL questions for a jury to decide.  If the case is so clearly reasonable, that can be judged then.  Consider a call that seems to many to be pretty clear.  A replay very well might determine there is no grounds to overrule.  You still have a chance to try.  It's not for replay office to second guess an agreement among the umpires that the call was at least somewhat open to debate (if that is the rule!).  

The Supreme Court tries less than seventy cases for full argument these days.  Why the hell are they interfering with these marginal cases?  They do not only refuse to change the rules for qualified immunity.  They want to reach out and error correct the hundreds (or more) cases like this, in the process affecting many more. Without argument.  It's wrong.  

Thoughts on Saturday Articles

Sinema: It would seem logical for Kyrsten Sinema to become an independent. Shades of Bernie Sanders, she has not been a mainstream Democrat over her career.  It was not just that she wants to be a "maverick" like her predecessor, John McCain.  It is that the state finds that sort of thing attractive (as do others), and her personality/political history was something of a good fit. 

Some cite her membership of the Green Party to show her troll type tendencies. But, I'll grant some good faith here, mixed with just a basic part of her personality. That sort of thing, the showy stuff, isn't going to disappear. That part of the op-ed is a bit silly.  And, I will grant (honestly) she has basic progressive positions on a range of issues, sometimes more so than Manchin.  She is a bother, but bothers are not just fakes.

I am even sympathetic to a degree -- more so than some -- of the passion for bipartisanship.  Fine.  The problem is that Republicans have to put up or shut up.  The mild infrastructure bill that some supported was a limited example of just that.  But, what else?  I'll accept compromising on reconciliation and voting rights if there was some real evidence of bipartisan support of a weaker package.  To do so for a bill that is supported by the median of the party and probably would get 48 votes, without ONE Republican joining in?  Come the fuck on.   

Still, though it might ruin her "independent Democrat" cred some, if she wants to act like a (pesky) gadfly, why not be honest about it?  Maybe, she can get a bit of it out of her system without doing unproductive things like not meeting with her constituents and saying what she wants.  Note that this is a red flag to people -- it is not that they just want her to be a "loyal Democrat" with every disagreement a sign she is some "traitor."  OTOH, blocking something like voting rights?  Well, that is a deal breaker.

(Voting is also one of those "must haves" where if you need to break the filibuster, okay, you break the filibuster. This is so even if you think that is not appropriate for other legislation.  It's like when at some point blocking Obama's appointments got to be too much and you had to end filibusters for executive appointments. A few now forget why it was done and are all "I don't think we should have done that."  No.  It was appropriate.) 

We already have a few independents, including the guy from Maine.  She can even say that it will encourage Republicans to join the coalition at times.  Someone like Evan McMullen (the conservative challenging Sen. Mike Lee and who ran an independence run in 2016) can on certain issues, for instance. Which might be a pipe dream short term, but hey, I'm sympathetic to the dream.  I'm less sure by this point her good faith.

Vaccine Hesitancy:  A lot of attention is give to Republican politicians (especially the governors of Texas and Florida) and media voices (such as Tucker Carlson) promoting vaccine hesitancy and blocking good Big V policies in the name of "freedom."  And, that sort of thing is a big problem.

It would not be if there lacked a fertile soil for it to grow.  There is some vaccine hesitancy and it's not just against liberals and the like. I'm sure that is part of it.  Maybe, significant part.  But, there is also some real concern over the (real) hardships of dealing with COVID.  Of the possible effects of a vaccine, one unlike some other one, we are not as used to. The bothers of masks, even if it seems trivial in most cases.  And, so on.  

The vaccine hesitancy that arose in recent years [to be clear, there are different moving parts here] has been somewhat cross-ideological. Robert Kennedy Jr., for instance, has been on the case.  The article cites some people who were hesitant and as locals in a NYC paper, logically they are not just the usual conservative suspects.  

But, and mandates played a big part here, there are ways to push them.  Such is why enabling resistance, which often will disappear when pressures are put on it, is so nefarious.  At this point, yes, we should have mandates.  They work.  And, those who focus on this sort of thing will tell you, there are things you can do to address hesitance in general.  It's very important.  

Michael Caine:  Something a bit less important.  Caine, 88, said that he has basically retired from acting.  He is promoting a movie and at least one other is in the process of being released, but he says he might be done.  Well, maybe some voice or stage work will come up.  Okay.

Well, he has been at this from the 1950s, so he had a good run. We will see.  I recall Anthony Hopkins saying something like this some time back, and he has done a lot more work since.  OTOH, recently saw something about Gene Hackman talking about The French Connection and he really has been out of acting for a while now. 

Caine is great overall, including his distinctive voice.  Seems a down to earth guy, but who knows. Haven't heard anything bad about him.  His latest sounds like it might be good; he's a grumpy old writer forced to go on a book tour, from what I can tell.  

Mets:  (Added)  These things necessary to turn the team around highlight basic concerns of mine.  Yes, you need a "veteran manager" who is not a "figurehead."  Yes, you need a winning culture, with the "toxic positivity" (no matter how lovable Alonso was) not the way to go.  Who is the new lead person for baseball operations will factor in here. 

And, yes there needs to be better hiring/vetting practices.  To give some credit, they did make some good talent selections, though their deadline moves (or lack thereof) was not among them.  The article does not reference injuries, but from various accounts, that too was a problem. Many teams had them, but the Mets seemed to have more.  And, the stringing us along with deGrom was annoying.  Fans were right to see problems there.  

The new owner spoke of a World Series win (or at least getting there) in three to five years.  I didn't expect a total win right away.  But, the team continued to have  troubling problems that felt "more of the same."  Keeping a non-veteran manager there because of the Beltran controversy in 2020 to me was but a sign of how it seemed like they were not ready to move on.  They did not have to get to the playoffs (though that would have been nice), but after a somewhat misleading good run, the team collapsed. That too seemed familiar.  Okay.  It's time to shape up. 

Supreme Court Watch

Orders: After the holiday, Tuesday's Order List was rightly seen as "humdrum" and "sleepy" with nothing much happening.

But, these things rarely are totally not noteworthy. Things happen that provide insights to legal practices that maybe are more worthwhile of attention.  For instance, the Supreme Court disposed of a lawsuit against Trump's misuse of power in such and such a case and in effect erases the lower court opinion. The principle involved involves cases that are moot.  The principle is named after a 1950 case, United States v. Munsingwear. 

Trump is no longer in power, so he cannot be required to stop the alleged illegal actions. But, it is an example of him in effect running out the clock with no consequences for what was alleged to be illegal acts. It also takes the lower court case off the books, which means the legal judgment is no longer precedent for further action.  There are technical reasons for that, though maybe it is being overused (per one account I saw), but again there is a sense that something is wrong.  

Oral Arguments: We had a few oral arguments, including in a lesser abortion case and the Boston Bomber  dispute (the actual marathon this year was Monday).   The live audio seems to be going well with Justice Thomas continuing to ask questions.  Roberts' old boss, Chief Justice Rehnquist might be upset about the laxness regarding extending argument times to deal with any further questions the judges desire.  But, though it's a bit messy (if seemingly somewhat more sedate of late), it's fine. 

PCSCOTUS:  The Presidential Commission on the Supreme Court has not really obtained much love. The Supreme Court itself is getting attention, with justices ("justices") speaking out and getting pushback. Breyer continues to make me want to scream "shut up! retire you asshole!"

But, the ongoing commission in place there to examine various issues involving the institution itself rarely gets notice.  This is unfortunate.  Even if people are cynical about the purpose of the whole thing, the Commission provides a platform for discussion of important matters. 

The whole point after all is to provide guidance to the Biden Administration, the political branches in general, of the issues.  If we have a need to address them, why not use this -- including some witnesses with strong criticisms -- as an educational platform to address the issues?  

The Commission had another public meeting today.  The purpose was to discuss what was labeled by press reports as "a preliminary report," though are labeled as "discussion materials."  A few accounts have highlighted comments opposed to court expansion.  A section on court expansion does have some bothersome phrasing.  I'm inclined, however, to wait until the final report comes out.  After all, during the discussions today, multiple members questioned some of the report. Changes are likely.

Friday's (this is being written then) session ended with a notice of the next public meeting to be in about a month's time. They will release a "draft report" beforehand and the meeting will likely discuss things.  I reaffirm my support of this effort and hopefully the final report will in some fashion (cf. a civil rights report in the Truman Administration) provide some value in public debate and action on this general subject.    

[It depresses me that I saw repeated cynical "oh so this is all bs" references to what isn't even the final report -- the commissioners (I actually listened in some; one critic is from Dorf On Law, which had not a single post on the proceedings though the preliminary report did cite him) themselves pushed for changes of the text.  Latching on to a few references, which very well might be open to criticism.  Saying the report says all is fine.  etc.  

This is cheap shot mixed with ignorance. I want to underline here the point here is to air out things, not make specific recommendations as such. Those who want to reform or radically change the system can take a bit of time to understand or even engage some with the commission's work, including it hearing some witnesses that some critics agree with on various matters.]  

Coming Attractions: There was a conference today, so there should be another Order List next week.  No conference or oral arguments are scheduled next week.  No other orders were handed down this week. 

One execution was held up by Texas to further examine religious claims akin to a case the Supreme Court are due to address soon.  One is still scheduled in Alabama for next week, after being delayed because SCOTUS via a shadow docket case said the state needed to allow the person a minister at the execution. One more execution is still scheduled in Oklahoma at the end of the month.  

Books: I am involved in an ongoing book review blog (creation pending), handling largely historical themed books. I am re-reading The Enigma of Clarence Thomas (2019) to write a review entry.  The author, who wrote a book on conservatives, notes that ideologically he opposes what Thomas stands for.  But, the book tries to determine where Thomas is coming from.

I agree with the summary in the review: "The result is rigorous yet readable, frequently startling yet eminently persuasive."  To fully be secure here, you have to "deep dive" all his opinions and other writings. I did not do that, so have to rely on his analysis.  From experience, one should be a bit careful, since sometimes analysis is somewhat selective.  But, that is some level probably by necessity. 

The book comes off as basically fair -- it spends much of its time spelling out Thomas' point of view while only having a limited degree of criticism of him being selective or cherry picking.  Also, his thesis is that Thomas and the left overlap more than we might think, including their pessimistic take on the current situation.  The author has a lot of material to work with though as with any such attempts, you should take certain interpretations from a distance with a grain of salt.  But, again, it seems convincing.  

(Finishing the book, I basically hold to this, but think the 225 page [lots of end notes], can't be considered fully comprehensive. 

He argues Thomas promotes the Privileges or Immunities Clause, e.g., mostly to promote gun rights.  But, he does reference a right to marry and raise children in one of his decisions (cited in an end note, so he is aware of it to some extent) -- though the book might argue it was a passing reference. Since there are various P&I opinions out there, it might have been useful to get more of a sense of how he handled them.

One thing that really stands out for me is that his two wives and son are barely referenced. Given the tough black father archetype the book says he promotes, this seems a tad weird.  If his grandfather is his role model, what of his own son?  The black mother / white stepmother dynamic there would be interesting.  The book does flag criticism of how he doesn't respect the problems his mother and sister went through.  So, this would further clarify his position. I would say in fact this is a glaring absence. 

The book even talks about him being wary of some black student going to an Ivy league school -- like Sotomayor, he talks to school children.  Okay.  What about his own son?  A son that in fact went to a military school, which is why he was recused from U.S. v. Virginia!  

It is not like at least his [white] wife plays little role in his life.  The book's focus on Thomas as a pessimistic black existentialist --- I'm not sure if I'm using that right -- without talking about a white wife (his professional life in a white world itself is not really dwelt on that much really) seems a tad curious.  But, there are two brief references to both wives and about the same to his son.  I don't expect a complete biography here, but even for the purposes of the book, this all seems a bit weird.  Didn't a reader flag it?

Finally, for those who wish to get a sense of what conservatives think of the book, the National Review gave it guarded praise. 

Baseball Championship Series

The AL side is Red Sox v. Astros, both teams involved in cheating in recent years. But, they aren't permanently tainted or something. Okay. The Red Sox was a surprise, pushed through some troubles, managed to get thru the Wild Card, and perform impressively on both sides of the ball against Tampa. So, you know, they earned some respect. Astros had a good year (and the division isn't that weak) and plowed thru the White Sox. Fine.

Dodgers struggled thru injuries and then pushed passed the falling off a cliff Padres. The suprising Giants hung on, winning one more game. Dodgers tied it up by needing to win a wild card game (plowing past the late "can't lose" Cards) and then winning the division series 3-2. A series where the Giants won 4-0 and then won once more, a 1-0 nailbiter and only one other game (blown in the 9th) where they actually played well. You know, not impressed.

Braves was subpar, had a mid-summer run, let also rans hang on, but did enough. They also had just enough offense to beat the offense weak Brewers. They are the only team I basically am supporting (Dodgers are like the Yanks of the NL, before the Yanks started to have a harder time of it) though I don't really actively dislike the AL teams. The Braves played the Giants well. I have low expectations about this match-up.

National Character Counts Week

The White House website provides various announcements, including transcripts of press briefings, summaries of calls/meetings, and lists of nominations. There are also already a lot of presidential proclamations, including for various "days" or "weeks" etc.

The latest is an interesting one that is unlike many that took place so far. Character is cited as "the sum of qualities that defines who we are and how we treat one another" and having a special role in today's world. Quite so. The Trump years were so upsetting in part because of a basic lack of character. Character matters. This should be emphasized.

Character leads to results and affects results. It might seem to some a sort of hazy, ephemeral thing. But, that can be taken too far. People recognize the important of character. We must not ignore the importance of such traits, focusing on other things, like the latest "Democrats in Disarray" or "things are a mess" noise of the day.

Fake News (Book)

I saw a listing of recommendations for various CIA related type books. True or False is a different sort of thing. Written by a former CIA analyst, it is an investigation (geared for teens, but adults can benefit) of fake news. Useful reference to have.

It first runs through a history from Ancient Egypt to modern times. Interesting. Mixed in here are some lessons like looking at motives of those who promote suspect information. It would have been more helpful if the lessons were highlighted (maybe with stars or something). The second half is specifically about how to sight and fight fake news.

Baseball: Meanwhile, the Red Sox (blah but okay), Astros (same/has baggage but not a big fan of the White Sox), and Braves (over Brewers; either are okay) advanced in four. The Dodgers/Giants alone will play a fifth game. Theme so far is a lot of bullpen and long running times (bullpen + commercials help). [Dodgers won in the 9th.]

#ByeFelicia (Jon Gruden)

Yesterday was various things. It was Columbus Day (he isn't cancelled yet? he was barely Italian) and Indigenous Persons Day and National Coming Out Day. President Biden's statements on such things matter, even if more concrete things are as well.

As to actions, now ex-coach Jon Gruden ("Chucky" ... a new Chucky t.v. series is also beginning) was found to have 2011-18 had a series of "racist, homophobic and misogynistic" (and criticism of dealing concussions) emails. Note his team now has the first openly gay player in the NFL. There was already a woman ref (which he opposed). As black sports analyst Joy Taylor noted, it showed a "lifestyle" not a "mistake."

This was found as part a still pending investigation of the Washington Football Team. 2018 (Gruden was in his fourth year of a ten year contract) is not ancient history. It also is in the middle of a key turning point in the #MeToo Era. Would a guy like him (even with a close relationship with ownership) be hired today? We have a growing understanding that we cannot just ignore things because they don't matter. Sports have more responsibility now. It was even in the past supposed to have a certain gravitas and honor. We have a ways to go.

Canadian Court Says Tai Chi Institute Is A Religious Institution

One question that has been covered in this blog is the meaning of the term "religion." I have long cited a dictionary definition:

a set of beliefs concerning the cause, nature, and purpose of the universe, especially when considered as the creation of a superhuman agency or agencies, usually involving devotional and ritual observances, and often containing a moral code governing the conduct of human affairs.

The basic understanding is that it is a set of beliefs and practices involving god or god. In a wider sense, it can be a matter of supernatural forces, such as spirits. Polytheistic religions are not just of the type from in Ancient Greece and Rome. 

The meaning of "religion" would seem to be important when applying various legal tests since "religion" in particular is involved. See, e.g., the First Amendment.  Another situation where it arises -- though related -- is when applying tax breaks and related immunities.  So, e.g., you might have to determine of the Church of Scientology is a religion or something.

An interesting Canadian lawsuit addressed such a question as applied to a Taoist Tai Chi Institute.  Taoism itself is accepted as a religion.  The question is if this specific institution warranted a religious exemption.  And, the definition of religion (with a warning not to apply it is a discriminatory way) is familiar:

As we have seen previously, the two experts in religious sciences agree that a religion is a system of beliefs and practices shared which have in common: a) a conception of the world based on supernatural in a perspective of salvation and establishing the place of the human in the cosmos, b) a moral code in the form of precepts and rules of conduct and c) a worship that integrates assemblies, ceremonies and rites of transition.

This is from the opinion (it is in French, but I used Google Translate). A few paragraphs from the article discussing it is also helpful:

The institute’s branches, now located across the country, have altars dedicated to certain deities, a moral code advocating simplicity, compassion and altruism, and celebrations marking some Chinese holidays, noted the judge, which appears to align them with the religion definition.

Members of major monotheistic faiths such as Judaism and Islam study texts like the Torah and Koran. But Taoists pursue their beliefs through bodily activity such as rituals, meditation — and tai chi, Yergeau quoted the institute’s expert — Canadian professor James Miller of China’s Duke Kunshan University — as saying.

But the cities’ expert, Prof. Frédéric Castel of the University of Quebec at Montreal, argued the institute is not a religion because it lacks a community of worshipers with shared beliefs.

But the judge said there is still a core group who follow Taoism. The institute is no less a religion because a larger number of people are only there for tai chi, he said. Most of those who visit Chartres Cathedral in France, the Blue Mosque in Istanbul or the Saihō-ji temple in Kyoto are tourists who don’t practice those religions, but that doesn’t mean the sites themselves are not religious, said Yergeau.

The summary of what a religion entails is workable though someone might have a religion without worship as spelled out there. If someone has an understanding of God, they need not also have "assemblies, ceremonies and rites of transition."  A belief can be solitary and without rites and ceremonies.  It is likely though that the person will have some sort of rite or ceremony for which the religion plays some sort of role. 

So, I don't really want to carp here -- "religion" is one of those words and  concepts that we have general ideas about without agreeing on every specific.  That sort of thing can be a tedious parlor game.  Suffice to say that the acts practiced at these institutions have enough religious connotations for them to count.  

The article notes the institution was given some other tax exemption, so the battle is somewhat symbolic.  As the judge here noted, the case law is “rather thin on the concept of religion itself” and what defines it.  Yes.  This applies in the United States too.  We generally tend to avoid defining "religion," a term experts in various fields find it hard to parse.  

At times, something seems clearly not a religion, but that happens rarely.  And, if we are honest, even then, the exceptions probably might seem that much different from some of the beliefs most would deem religious (if ridiculous). A somewhat related thing happens when trying to find "sincere" beliefs.  The term has some meaning, surely (blatant fraud should not be allowed), but it is likely best to draw lines some other way.  

(I cited in the past my state's rule that a religion has to have some sort of specific institutional aspects to be allowed to officiate marriages. Some self-ordained minister might not be enough.  There seems no real need for that line -- for instance, you can requiring a training session of state marriage law waived if you had other training -- and it requires favoring certain religions over others that is itself problematic.)

A topical example is vaccinations.  Some cite a "religious" reason not to take them.  People find this unbelievable, especially if they take other vaccines.  But, they cite possible differences, such as this vaccine was developed using fetal cells.  Maybe, they are not being consistent.  Okay.  Start down that road, you probably will go a long way.  Basically, you will demand a rational belief system. Not necessarily an oxymoron, but can be.

If we are going to have "religious" classifications,* the word needs to have some content. Fair enough.  But, the judge's words remain valid: "It is not for the court to judge the depth of the religious conviction of the members or to establish a threshold below which the label of religious institution would be refused,” he said. “To venture down this path would lead the court to interfere with intimate beliefs.”

This is from the article and the opinion probably provides a bit more nuance.  There has to be some "threshold" here.  Still, if a self-declaration is reasonably a match to our rough definition of "religion," it is best to accept it.  The dispute here again seemed symbolic (if they would have received the tax break anyway), but we often can avoid the briar patch anyway.  And, we need to remember that "religion" is not just some traditional view of Christian faith.  

Also: I found this article in a comment I made in the midst of an old debate over allowing more religious exemptions when same sex couples are involved.  It argues sexual orientation should be treated like race and sex.  The overall principle is the same -- evenhanded treatment, not favoring certain beliefs over others since "well obviously racist religious beliefs are wrong!"  

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* These types of discussions sometimes lead to first question type arguments. On some level, that's fine, but on another re-opening everything is basically (or isn't every time) not the issue. 

The First Amendment as well as modern day human rights law recognizes a special concern for religion.  I realize the Constitution (and maybe modern human rights law) is not always right -- the U.S. Senate, at least the two senator rule, shows this -- but as a matter of practicality and basic principle, that isn't the case here. 

Religion is special to human existence and modern society.  Both prongs -- no establishment and free exercise -- is appropriate.