Happy New Year's

I started early…🥂🍾🤪 pic.twitter.com/8g9xxccb6w

— Jessica Chastain (@jes_chastain) December 31, 2021

Meanwhile, 2021 tossed one last death at us -- she was going to turn 100 next month, but Betty White has died.

SCOTUS Term Limits (Short)

A law professor has a NYT op-ed supportive of short term limits (12 or even 8 years) for Supreme Court justices.

More is needed to address the court’s current composition and approach — not by expanding the size of the court but through even more powerful, that is, shorter, term limits.

The op-ed doesn't directly address what I take as likely -- the term limits are not going to be applied to the current membership. They will be prospective. Big changes (such as to the death penalty) tend to be. The 22A did not apply to Truman (in office at the time). So, we are talking about new members here. Not that term limits at all are too realistic now.

I would be wary about too short terms here. Very short terms will also only encourage the to me overuse of appellate judges for justices. I think justices need a few years to "get their feet wet."

And, if you have fixed term, it might somehow effect their last year or two. They will somehow start acting with retirement in mind. I'm not exactly sure what this would entail, but seems likely. So, you have a strong center that works best. If you have an eight year term, it would be to me probably too small.

I'm open to a shorter term than eighteen years. 12-15 years might work. I'm not sure how much it will matter, but guess it has value. A shorter term will make each candidate that much less essential. Thomas has been there for thirty years. Someone there for 12 is less important. As I noted in my addendum last time, any one thing isn't enough here anyway.

Expanding the court (“court packing”) might be justified if things were to get worse. For now, it risks setting off a dynamic with dangers for democracy.

How much worse? You have 1/3 of the Supreme Court obtained by corrupt ways. They also come from someone voted by a minority of the voting public. I realize that is our system, but whatever is in place that looks bad that is in need of reform is not illegal as such. It is felt the system has gotten so askew that we need change. Thomas has his own issues. Some think Roberts/Alito are tainted by 2000 too, but I think 2004 did reset things. 

There is also a fear that if you "pack" the Court, it will send a message to other nations that they too can do so.  I'm unsure how much our actions will matter (various aspects of our legal and political system are not used worldwide or only somewhat, such as our presidential system), but will continue to point out that NOT doing anything also sends a message.

Term limits does not address the concern of a stacked court where the appointment process was abused.  Term limits is a useful device that in a limited way will lower the temperature of nominations, but like any other powerful office, they will remain politically divisive with temptation of abuse.  And, they will not immediately address the problem the expansion supporters cite.  In fact, it might be a long time coming. 

A way to go is a short term expansion that deals with the current situation, which can factor in the likelihood that term limits will not apply to the current membership.  When we have nine new justices (or pick you number), the membership can be fixed, and vacancies will not be replaced until we are down to nine (or whatever number).  

There is the usual concern that there will be a tit for tat response. This will only be able to be done if the Republicans again regain a trifecta with each part supportive of it (a 52/48 Senate might not).  That is not easy in itself.  The ultimate solution there might be to try to find some "deal" to satisfy a few Republicans.  What this entails, I grant, it's hard to say now.  But, the shift here is such a big change that we can be surprised if it ever happens.

There is also a concern that the Supreme Court will be too big and it will then have to operate via some panel system.  I don't think that would be too bad.  Some argue it is constitutionally problematic, but the product of panels can be subject to a vote of the whole.  And, for important cases, an en banc Court can form.  

Anyway, the op-ed grants a term limit constitutional amendment is the safest route for passage of a term limit.  And, if there is a will for such of amendment, other court changes might be on the table there too. So, the op-ed at the end of the day seems fairly academic on some level.  

If not quite as much as the op-ed I talked about earlier, partially since it is more focused on term limits than badmouthing expansion, this op-ed to me also does not accurately provide a full accounting of the situation.  

It does not really consider the problems in place now that that drives people to want to expand the Supreme Court.  It vaguely leaves open ("maybe") some more serious situation (what? 2023 after the 6-3 Court is in power for two terms?) down the road.  Why isn't the current situation bad enough?

I'm fairly pessimistic in the short term about EITHER reform occurring, but these things are long term efforts.  I supported same sex marriage in the 1990s.  Ending military discrimination of gays was also an issue as the Clinton Administration began.  It took like twenty years for both to occur.  So, we need to seriously look at these issues and press before the time comes where change is likely.  

So, we should look at these issues carefully as the Presidential Commission of the Supreme Court et. al. provide room for the issues to be focused upon.

Sofia Petrovna

I found this Russian novella on the free rack. It is based on the author's experiences during the Stalinist purges in the 1930s.

An everywoman, a naive loyal widow slowly goes insane while dealing with the results of her son being arrested. He basically disappears, her only communication with him coming something like two years later when he sends a handwritten letter asking for her help. She had by that point started to pretend he was let out, in part since the fantasy of justice winning out (since he was not guilty, obviously) provided her some sanity.

The epilogue is an excerpt from the author's autobiography, explaining how the Soviets refused to publish it (though she received financial compensation) in the 1960s. We learn that years later, it was published in Russia, the author's long life meaning she lived to see her dream come true. 

The book is a realistic account of a crazy time. She starts off enjoying her new career as a typist, her hard work and diligence leading her to be a respectful manager of the typing pool.  Her son (with his pal) seems to be doing well (moving away for further education).  We get a feel of the times, including her old residence split among multiple families, party operations, and so on.

And, then suddenly all goes wrong.  She has to deal with the bureaucracy.  Suspicion of loyalty of people at her job, including herself.  And, she keeps on trying to convince herself that all will be well. The state is honest as a whole, justice will prevail.  The author notes her insanity is a symbol of an insane situation.   

In the end, she decides to say her son was let out, was getting married, and was given a good position.  This is her fantasy of what should happen.  Others go along (no suggestion is made, though maybe it is the case, they were patronizing a woman who now was much older and decrepit than her years, a hermit who hoarded food to give to her son once she could).  This might too be a metaphor to how the people in such a society form a fantasy view of things, at least pretending to accept things.    

The book is well written with many short chapters.  The epilogue in the author's own voice (then around 60, I gather) suggests a somewhat ironic sort with a passionate side.  It too is well written, down to earth (the excerpt is about ten pages long).  As a whole, for someone like me who these days (probably with all the stuff I read online a significant reason) especially has trouble reading longer fictional fare, it was a good choice.  

Also, a good find, since the only books by her in the NYPL seems to be in Russian.  There was another good fiction book about the effort of publishing a Russian novel in the West, with the author's mistress also one of the subplots.  She was based on a true person, including her years imprisoned.  Russian literature is an important part of its culture, surely.

SCOTUS Watch: Presidential Commission Edition

The Presidential Commission on the SCOTUS submitted its long report to the president earlier this month. The report is a summary of various issues, providing different sides.

A few commissioners provided separate statements, including Tribe and a former judge (Clinton nominee) writing an op-ed strongly stating the situation is bad and that court expansion is appropriate. A sort of opinion concurring in judgment, all of the commissioners signing on the report, except for two conservative-leaning who (with explanation) resigned earlier. Still would like some clarity there.

Three other commissioners (conservative-leaning) submitted statements that are on the website itself. The overall message is that reform talk should not threaten the benefits of the American judiciary, which by lucky chance leans the ideological way of the writers involved.  The judges were picked by Republican presidents and the other person in part is a member of the right-leaning American Enterprise Institute.

Addendum: Judge Griffiths retired in his 60s, it appears when the retirement benefits would kick in, saying he did so to care for his long ill wife.  He was replaced by an ideologue in his thirties.  

At the time, an advocacy group (much to his and his ideological supporters' disdain) submitted a request to his circuit to investigate if he was wrongly influenced by pressure from McConnell.  

The chief judge passed the buck to Chief Justice Roberts, saying it should be examined by a more neutral party.  Roberts' representative provided a statement that the request was not an appropriate use of the process.

I found it appropriate, on appearance of impropriety grounds, to investigate the matter.  The appearance of integrity of the courts is an important matter and will involve some requests that are based on wrongful assumptions. Maybe, Judge Griffith was totally neutral in his timing here. If President Clinton had been in office, he would have resigned late in 2020 too.  Or, maybe, he would have found a reason not to do so.  

Things have mixed motives and some judges clearly do retire because the "right" President is in power.  Term limits provide a check here. 

 Judges Statement

The judges' statement is a paean to the American judiciary. The federal judiciary has a "sworn duty to support and defend the Constitution of the United States."  So, does every single state and federal official.  When I worked for the post office (Christmas rush), I swore a constitutional oath. I swear a constitutional oath as a notary.  The oath alone isn't magic.

"Every decision issued by the Court, with the exception of emergency or routine orders, is explained and supported by reasons in lengthy opinions."

This skips over a major problem regarding the shadow docket. The Supreme Court repeatedly does not explain themselves, especially not with carefully drawn lengthy opinions. This includes life and death matters.  And, even the opinions provided are often somewhat selective.  

Nearly half of the cases decided every term are decided by unanimous vote of the Justices.

Yes, the carefully chosen opinions include many for which there are agreement.  But, many of the very important issues are closely divided by clear ideological divisions.  It is spin to try to cover this up with this happy face approach.  I am not saying this all is illegitimate. But, it is part of judging.  It always was in our system.  We should face up to it. 

Federal judges are not politicians. They do not identify with political parties or the president who appointed them.

Sure, Jan.  Judges are not just as a whole fair, but they are just above-the-fray robots who put aside their previous views and sentiments.  And, after this, they do note the different life experiences but argue each brings an "open mind."  Many do not, but many do, and that's fair.  But, they cannot stop there.  They have to lead with a fantasy

On those few occasions where judges lose their way, they fall short of the high standard we set for them.

Just a few bad apples.  Fine.  Anyway, the overall concern (for me and others) is the overall structure in place, including the political process of appointment and confirmation in recent years.  You can have a bunch of fine judges and still have problems here.  The system can also worsen the situation, having more people with "judges losing their way."

We are wary of such proposals, especially those that assume that judging is little more than a political act to advance favored interests. 

Court expansion and other proposals do not assume that judges are "little more" etc.  They realize, however, that a fantasy view of judging is wrong.  That politics does affect the situation, that judges (especially those who come from very partisan backgrounds) do not suddenly get lost in their black robes etc.  It is a factor involved, including the overall procedure used to pick judges that provides a democratic sense of legitimacy.  

There is far more at stake than the outcome of any case

But, that sort of thing matters, including as shown by how the selection process works.  And, a whole bunch of cases as a whole matters a lot. 

Adam White Statement

The Supreme Court was established for an indispensable constitutional purpose: to decide cases under the rule of law. 

And, the reforms need to be aimed toward helping it become a "court."  I quote him.  I'm not being snarky here.  I'm not doing the Prof. Eric Segall thing (he wrote a book on it) about the Supreme Court not being a court.  I find that whole thing stupid.  It's a court.  It is a special sort of court, but it is a court.  And, the reforms do not want it to stop being one.

Court-packing is anathema to constitutional government. While Congress is empowered by the Constitution to add seats to the Court, the history of Court expansion is one of admirable self-restraint by Congress

The less than two-page statement refuses to actually admit the history here. The Supreme Court started with six justices.  Congress passed a major court reform that in part would have shrunk it to five when a justice retired. Change of partisan control took that away. So back to six.  

The Court soon expanded to seven justices and then a couple decades later we had the current nine.  This might be seen as "packing," but probably is fairly seen as a reflection of the growth of the country as was a short-lived tenth justice to deal with California.  Then, Andrew Johnson led Congress to shrink the Court to seven.  Then, it was back to nine.  

There was a push in the 1930s to expand the Court again, which might have worked (I'm unsure) if a key supporter didn't die.  And, the lower courts expanded at various times as well, including during the 1970s.  There is a push to expand it again, and there is actually bipartisan support for the need to do so, though Republicans want to wait until 2025 to add the new judges.  

Did expanding the Court from six to nine hurt how they did their work? If doing so made sense when the population was something like 1/8th of today, is it so strange to do so again? Also, WHY is an expansion being offered?  A basic argument is that the last three nominees especially perverted the process. It perverted the Court.  It made it seem (and I would argue rightly so) that the Court can't do its job properly.  

The job? To interpret the law.  To decide cases under the rule of law.  Of course, that isn't some magical neutral affair.  I'm fine with stating that as the job of courts.  But, as with oaths, other institutions are also important here.  The people who create courts, nominate judges, confirm judges, and oversee them (impeachment power) all are involved too.  

By tying Supreme Court vacancies and appointments directly and exclusively to the outcomes of presidential elections, a term-limits framework would further corrode the appearance of judicial neutrality and independence, making the Court a spoil not just of politics, but of presidential politics exclusively

The overall idea is to have eighteen-year terms, which long term will provide a steady rotation of judges, including two per presidential term.  It is not just about presidential politics.  

Nonetheless, judges are obviously a major political matter now.  More fantasy (very bothersome) to not admit such things. Put aside the list Trump supplied.  From early on, the nomination power clearly made who was president important.  

White late grants (though the idea it is happening more lately is really something I would need to see statistics for -- "things used to be better" is consistently dubious) judges are resigning so that similar minded people replace them. But, leaves it to the judges' own self-restraint to change doing that.  That is so fucking naive and if the courts were more liberal, especially the Supreme Court, it's somewhat hard to think he will be so blase.

It is to be remembered he belongs to a conservative-leaning ideological group. Conservatives -- and this is not illegitimate on a basic level -- have worked hard to pick ideologically friendly judges.  The idea that term limits would suddenly change things for the worse here in any noticeable way is hard to believe, especially coming from someone of his leanings.  

And to reliably deliver Supreme Court appointments to the president, a term-limit framework would need a constitutional amendment preventing the Senate from disagreeing with a president’s preferences (as the Commission’s report describes candidly).

A liberal leaning commissioner took part in an ACS discussion and argued that term limits can be established without an amendment.  I guess the idea is to form a "judge" office and as long as you continue to pay them, you can provide a term limit for their main Supreme Court term.  

I basically am dubious both in theory and it actually passing/being upheld. So, term limits probably would need an amendment.  But, why would a term limit process require Congress not to be able to veto (not that they do much in practice) presidential picks?  

I did not read the report, yes, but there is no real reason for that to be true unless what it amounts to is not agreeing to any nominees.  To that extent, yes, ultimately the Senate cannot have a complete veto.  The president will in practice have some significant power to pick judges. As he does now.  Term limits do not change the net results here on a basic level. 

Legislation setting clearer standards for granting writs of certiorari, or mandating judicial review of more kinds of cases, could help to make the Court’s caseload less a matter of judicial will and more a matter of judicial duty. 

This is worth thinking about.  I will leave such matters to those more deeply skilled at the line drawing here.  The same regarding concerns about national injunctions, which these days is something (selectively) some conservatives are upset about.   

As to restraint, sure.  Sometimes, you need to be active as well.  We are at that point.  Restraint or not, you need a more honest and full look at history and practice to do a good job of analyzing things.  I can disagree and think people have a fair accounting of things.  I think the three here should have done more before putting forth their positions.  

But, hey, it's good the commission was diverse.  I guess it might have been nice if there was a statement posted from the other side, instead of seeing it as an op-ed alone.  

ETA: "Fix The Court" is a good institution, that supports openness and various court reforms, including cheaper access to court material online.  

The strong support, over expansion, of term limits, however, does not really appeal.  An op-ed published in a local paper does not help.  The argument that term limits will depoliticize things while the expansion will politicize things more is offered.  As if politics is naughty, and we should (and can) remove it from the process.  This is naive and/or suggests a bias. 

It is just as likely that a steady cycle of two nominees every presidential term will lead to an organized political focus on what will even if "only" eighteen years are involved be very important positions.  One might add, though I would offer it only mildly, if anything, a bigger bench would lead to less importance for each specific nominee.  Or, some other approach that limits the power of the Supreme Court as a whole.  

The op-ed also suggests some black/white matter where expansionists are really basically concerned with ideological results (bad!) while term limit supporters are more benignly concerned with a broken process.  Expansion could worsen the situation and add fire to conservatives, who will say liberals just care for results.  As if they don't, of course.

Sure.  Realistically, term limits are unlikely in the short term, in part because conservatives do not see a problem with a 6-3 Court and many lower courts that they control or have significant membership in.  

A few, including some Democrats, will question touching the sacred courts or will raise constitutional problems.  Finally, I simply do not see any real chance of it being applied to the current membership.  We are talking YEARS in the future here.  Oh, joy!  The system will be fully on balance c. 2050.  And, the first couple (knock on wood!) will limit Democratic picks.

A basic annoyance to me is that people who support court expansion are not as simplistic as suggested.  Most in fact also support term limits. Anyway, they too argue that there was a broken process.  

Was there such a strong support for term limits when Roberts and Alito were chosen?  No, you fucking moron.  I'm sorry. So crude! The BROKEN PROCESS of the Trump years pushed many over the edge.  It is not just bad case results. 

And, yes, that does influence them. Why shouldn't it?  We are operating here not as some sort of academic affair, but in the real world. The system is broken, a result of both a constitutional system that given recent events was particularly problematic (flawed things are like that -- you can work around them, but sometimes happenstance bites you in the ass) and additional norm breaking of a horrid sort.  

Term limits alone won't fix this, surely not in any short term.  Surely, the results of this process, as in ideological, matter too.  If a fair system resulted in a conservative bench, you would push gain power, and slowly change the system.  Changing the rules merely because you lost is usually a bad idea.  But, when you lose and the system itself is bad, the bad results really rankle.  Especially if a better system would have led to better results.

Expansion is not about the "courts doing the wrong kind of politics."  A senior researcher at Fix the Courts providing such strawmen is tiresome.  Courts do perform a sort of politics.  Let's not be naive.  Still, fundamentally, that isn't my concern here.  It is dealing with a form of robbery (aided by a stacked deck) by letting the other side keep their ill-gotten gains and somewhat limiting the breadth of future ill-gotten gains.  

And, doing so in a holier-than-thou way that sneers at the other approach, which is put forth by people who actually agree with your own as part of the solution.  Well, I guess it is all academic since I don't see term limits actually happening any time soon.  

If there was actually a fundamental political change, in fact, it might be mildly more likely a non-amendment court expansion (there already is a lower court expansion being seriously contemplated with bipartisan support, if not time-wise) would pass.  Meanwhile, Fix the Court does support some good ideas.

RIP Sarah Weddington

Sarah Weddington, who argued the case of Roe v. Wade, has died.

I have written a lot about abortion issues on this blog and elsewhere.  Weddington lived it.  The fight for abortion rights then and now was a group effort, but a young minister's daughter from Texas was a good face for it at the time (and now).  

She was also game, as shown by her life in politics (Ann Richards was her legislative aide and later became governor; Weddington eventually worked for the Carter Administration, including helping to pick federal judges), academia (saw someone on Twitter praise her as a role model), and public speaking.  

I wondered about her lately with the Texas litigation and all that. I have not seen her mentioned in the coverage though obviously have not read it all. The NYT obit references her being a guest of honor when New York passed abortion rights regulation a couple years ago.  But, it seems like she had health problems (she died in her mid-70s) the last few years.

Weddington was not just all about abortion as shown by her career and advocacy.  Abortion rights was a key component all the same of her fight for women's equality, privacy rights, and so forth.  It is also why the subject has long interested me.  Is it merely coincidence that Roe was first argued shortly after I was born?  

Prof. Colb today refuted the idea that you can separate abortion rights from other privacy matters, including because supposedly human life is involved.  She in part references Orthodox Jewish doctrine, reflecting her family background.  The subject of menstruation and Jewish law by chance was also one of the Monday links over at Religion Clause.  

My overall thought here is that what "human life" is in respect to something with special meaning is a matter of individual belief and conscience.  This was noted in Planned Parenthood v. Casey.  Likewise, many things significantly affect "human life" while still being constitutional rights.  Parents have control over their children (the born ones), even if their choices significantly affect their lives.  

The blog and article talk about Jewish beliefs. Weddington was a minister's daughter.  Religions have a diverse view of ideas about proper behavior here.  The state should not pick and choose.  The right to privacy includes privately making choices involving family life and matters involving your own body.  Yes, regulated, like all things tend to be, but ultimately in a basic way it is your choice.  

This is also true specifically when a person chooses to have an abortion because of the nature of the embryo or fetus in some fashion.  The article here argues "eugenics" is a government policy.  As a factual matter, "reason bans" do not stop eugenics.  Ultimately, however, a basic point is that you do not have to marry someone white (or whatever) if you do not want to. Maybe, that is racist.  But, it is your call.  The choice to have an abortion is for the person involved.  Even if someone thinks it is "bad."

I was wondering about Linda Coffee, her co-counsel in Roe, who is a much more private person, and see she is quoted in this obit.  It ends in a way that is appropriate here as well:

“I am sure when my obituary is written, the lead paragraph will be about Roe v. Wade. I thought, over a period of time, that the right of a woman to make a decision about what she would do in a particular pregnancy would be accepted — that by this time, the thirtieth anniversary of Roe v. Wade. , the controversy over abortion would have gradually faded away like the closing scenes of a movie and we could go on to other issues. I was wrong.”

More Weekend Stuff

Football: The football entry was written before all of the games were completed. A pair of flawed teams go at it on Monday Night with COVID factoring in as well. Sunday Night was a rematch for Washington and Dallas.  Washington gave it a go last time, but lost.  This time, Dallas scored 42 points in the First Half.  42-7.   

One thing left out was that the Bears (who usually find a way to lose and have QB issues) had a back-up and was playing Seattle (off year). They came back late and with around a minute left could have tied it with a usually (but not every single time these days, the kick longer -- Jets missed a XP today) gimme extra point. But, they went for two. And, this not their year, no magic for Seattle in the last minute. 

The Bills tried make a first down and score to avoid OT earlier this year.  They didn't make the first down.  A chip shot field goal would have meant OT. The Ravens twice went for two late, both times not making it. Again, they could have gone to OT with one.  In each case, there was reasons to do it.  Maybe -- the odds makers say the should -- there should be a lot more two point tries.  Ditto going for it on fourth down.  

But, at times, there is more of a gamble involved.  Bears the first I know of (surely might have happened without me knowing) where it worked this season when done in such late in the game situations.  When you already have a lost season, risking it is easier.  I'll leave it to odds makers and coaches to determine when it is a good bet.

Books:  After seeing a bit of the interview on CSPAN of the author discussing her book, I checked out Her Honor by LaDoris Hazzard Cordell. It concerns a black woman's experience as a state judge in California.  It is well written and covers a lot of ground.  With so much material, at times, you feel something was left out (like a Supreme Court cite to a major California three strikes decision).  

But, overall, it was a good read.  It was the first time I recall seeing as well the a scan (shades of the QR -- Quick Response -- symbol on the table at the darn Chinese Restaurant I wrote about) at the front of the book. The book did not include notes and other material (e.g., pictures of her cartoons), providing them online.  You can scan the symbol or go to the website directly by url. 

Another movie I caught late Christmas Eve night is a Hallmark film, but not a Christmas film.  Love's Complicated is a tad generic title that doesn't really tell you much about the film itself.  Holly Marie Combs (who has an ordinary look about her) spent most of her time playing roles in t.v. series. She was in a few films early, but is not a Hallmark regular.  One actor pops up more.

This plays it low key with some buried bite in this enjoyable film.  She's a writer, who doesn't like conflict.  She winds up in a conflict management class (which she needs, if maybe not in the same way as some others) and of course falls for one of the members, someone she at first finds annoying.  But, the guy has some real charms.  And, the end has him asking to be her boyfriend.  Not quite "marriage soon!" we are in love stuff.

"Love's Complicated" is not really a good title for this film.  Some take of "conflict" or something would make more sense.  But, after seeing it a few years back, it was one of those films that work again.  The usual reasons: it isn't that deep (it is a Hallmark film), it's well paced, I like the lead (she is my favorite on Charmed too), and the other characters have charms (pun not intended) too.  

It also has a good message.  For instance, her dad scoffs when she is worried about her approval when she likes a guy who has given the dad trouble.  She's an adult.  It's her call.  Sure is!

NFL Sunday

Various themes for football this season. On each day, from Thursday Night Football on, this week teams found a way blow it. COVID led to key players out, including QBs. And, there is room for upsets. Texans won this time. The Pats also might be coming back to earth. Buffalo winning was but one issue. That Brady v. Old Team SB no longer seems quite as likely.

The Giants, no matter who starts, look pathetic. But, they (at least for a half today; plus other days) have a decent defense. The play through the league was dubious in many cases, but in most games competitive. The Giants was 3-3 at the Half and then the Eagles made it a laugher. Another lost year. The Jets have a new QB, so had more of a pass.

The Jets almost blew it today versus the Jags, with repeated dubious moves, but the Jags lost at the goal line. And, showed their record by making plenty of mistakes, including a curious spike, which gave them one last down at the same goal line. The fourth down play seemed like a third down play (pass; they had no time outs, but time for a quick pass and then one more play). I think there was some confusion.

Christmas '21 (Whining And Otherwise)

Another Christmas holiday over. We have a fairly long tradition going on. Dinner at my sister's on Christmas Eve and then a smaller subset of us are at my mom's. At my mom's, we had been going to a movie though some issue and then COVID stopped that.

We also have gone out for dinner for Chinese, a few local restaurants doing the trick. One got to be too crowed. The second was a pleasant spot, but closed down. We went to a new one. The food and such was decent, but there was confusion getting there that stressed a couple people out. 

More annoying, not only did it only had wine and beer (which had run out when we got there shortly after 7, but they have an app to access the menu instead of actual menus. One person argued (though we went elsewhere without such a  thing and they still could have had paper menus available even then) it was a COVID thing.  Another argued it was the "new" thing.

Uh huh.  It annoyed someone else (who already was annoyed), but I'm not a big fan of it in general.  If we knew about it before time [the person called the restaurant a few times, including just that night], maybe it could have been helpful order ahead [and they could have waited to start the order]. That and having it as an option overall is okay.   

But, when I go out to eat, at least for a more expensive dinner [as restaurants went, the prices were reasonable], I prefer they actually personally take my order.  I also like looking at physical menus, instead of needing to stroll or something (though the search function was somewhat helpful).  It took a bit longer to do, but it wasn't that bad in that sense.  Some might appreciate it. Others would not.

It was basically just one more stress point, but overall, I'm not a big fan of not having regular menus at all.  If this is the "way of the future," count me out.  

Since this has turned into a bit of a rant, I will add that I don't like the policy -- now a couple years old, I gather -- of the local multiplex there having you pick a seat when you buy your tickets. Instead of simply looking for one. Now, this MIGHT be useful, especially for more crowded films, especially if you had help. 

As is, it's confusing to know exactly where you are picking you seat and then finding it, especially in one of the bigger theaters. If -- I haven't been there for a while, but it wasn't -- each row was marked by a lit label and so forth, it might help some. It's a bit confusing finding a seat sometimes in playhouses, and they usually have ushers there.

As is, with COVID and other reasons, I have not gone to the movies at all this year, and -- after it being a weekly thing basically -- had not much before then. With the Internet and all the channels, even without having the many other platforms, movies are much less of a 'thing' then it used to be.

When I go to the city multiplex, I hope they did not also have this "way of the future" or however one of our party labeled it.  Sorry to him that all of those turnovers just barely led to Packers winning [they scored little when not taking advantage of their Christmas gifts].  With the Cardinals losing, he was a few points away from a profitable day.  As Jesus intended. 

Now that I'm done whining (Christmas overall was okay enough), time for a couple enjoying Christmas films. Of course, there are lots of options, on many channels.  Depending on what package you have, you might have even more.  Two standard options is TCM (and often some other classics channel) and Hallmark (there are at least three possible channels there).  

Remember the Night is a classic Christmas/New Years film, one of the more bittersweet entries.  It is notable that Fred_MacMurray is in two such classics (this one and The Apartment, which has less of a blatant holiday theme, but overlaps, and often is aired around New Years).  Many probably are familiar with MacMurray from My Three Sons, or from a few of his most well know films.  This is one of his early roles (with Barbara Stanwyck).  He had lots.  

There are LOTS of television Christmas movies (now there are a few Hanukkah films too), including a lot of reruns to film the days of multiple channels.  Those who watch them will start to see various similarities, including familiar faces who do multiple films (both as leads and supporting cast). This includes many familiar faces who had some television roles in past days.  One film had a range of "hey, I know!"

The movies are of varying quality and generally are a matter of taste.  I find them a mixed bag, a bit harder these days to find one I like.  But, as I already have noted this year, there were some pretty enjoyable.  Time for Me to Come Home For Christmas is actually from 2018, but this is the first time I watched it.  Appropriately, I saw it on Christmas Day.  

It was comfortable.  The leads (the country music singer is a repeat player in these movies) were attractive white people, but seemed like human beings as a whole.  The "trying to get home for Christmas" (a theme in various films; plots are plots -- they are not infinite numbers) plot allowed for some overall well paced and well done vignettes, each having their own charms.  Late you had the usual required problem, but it was pretty painless, and fairly reasonable (as compared to the usual mistaken assumption that makes at least one side look stupid).  

And, basically, I liked the characters.  That is important.  On that front, multiple supporting characters [no required minority person as a bestie or something here, apparently] did a good job.  It was a good ensemble.  Again, I'm sure it's a matter of taste, but I liked it.  The leads were in various things (he popped up in All Rise at some point).  They did well here.

Happy holidays again.  Happy Boxing Day.  

[This turns out to be 12/28, at least according to my desk calendar.  It seems to be on different days depending on the country.  The idea seems to be to make it the first weekday after Christmas, but a weekend Christmas throws things off.]

My Fiona

Not quite as many as holiday films, maybe, but there are by now many GLBT films (not sure about the rest, but surely a few) too. Many are somewhat inexpertly made, perhaps more a matter of their heart being in the right place. Perhaps a bit ironically, this makes them like some evangelical films. Or, t.v. holiday films. And, even they are starting to have gay and lesbian (if not so far the rest) content.

My Fiona, which I found out about when cruising what was available on demand, is very good. It starts with a bit of black humor which probably fits the lead -- a woman who has to deal with her bestie [both white] committing suicide. She helps the bestie's wife [black] with child care, Jane and the boy clearly having a bond. Complications, including Jane and the wife falling for each other as well as the son having his own issues, ensue. It does not end simply on "happily ever after." This adds to the raw complexity of the film.

Overall, it is well acted (including the wife and the child therapist, who happens to be Jane's ex boyfriend, and Fiona's mom), and at times quite touching. One might carp about certain things, I guess, but overall I liked it a lot. Great find.

Supreme Court Watch

Last week had multiple Supreme Court content, even though it started off looking like it would be a slow week. This week had some notable things too. If they decide to do something late on Christmas Eve, I'll add more content later.

The one thing that was particularly scheduled was a response to a request to allow an Arizona anti-abortion law (a "reason" ban based on disability) operate at least partially while litigation is pending. This is just one of the many pending matters where a single justice (member) of the Supreme Court deal with something pending in their circuit(s).  Largely buried on the docket pages, but saw this referenced elsewhere. 

Then, the Supreme Court took two vaccine mandate cases for a special Friday argument (1/7).  This is for a stay application, if something with national reach, and you might think they handle it on the "shadow docket," which has received some controversy given how broadly they are using it.  

The last time such an oral argument according to Law Twitter was Citizens to Preserve Overton Park v. Volpe in December 1970.  Is the criticism hitting a nerve?  As Amy Howe noted, " the court set a deadline of Dec. 30 for responses in both disputes."  As she notes in another entry, and we saw last week alone, the Supreme Court is hearing a lot of requests against vaccine mandates.  I guess it makes some degree of sense to have an oral argument given the breadth of the two taken, but who can trust this crew?

As expected, Trump asked the Supreme Court to block the release of documents to the 1/6 Committee, waited to the last minute to do so [or maybe it was in a Festivus thing], and take the case for argument.  The Trump financials (fairly recently NY saw the material and people testified)  dragged out too fucking long, in the end the Court adding more complications to help delay in the future.  The "win" for sanity was only limited there.  They should just refuse this on 1/6.

Given how things go, who knows what next week will bring?  The only thing really scheduled is the release of the Chief Justice's End of the Year Report.  We shall see.  

For now, HAPPY HOLIDAYS!

Local News

My official swearing in as the new City Council member representing District 13. I cannot wait to serve the people of NYC!💛 pic.twitter.com/NmUPUgciqp

— Marjorie Velázquez (@mvelaznyc) December 23, 2021

Some progressives (think AOC friendly) people will stand out in the new bunch in the City Council as well as the comptroller and maybe the public advocate.  My new council member is surely an upgrade on the current person (worried about non-citizen voters), but not sure if she will be as passionate as a few of the newbies.  She worked for Joseph Vacca, member before the current one.  

We also have the likely new City Council President.  There was some drama, when two candidates claimed to have the same number of votes.  The incoming mayor (Eric Adams) got into the mix, supporting the failed candidate.  He tossed in some comment involving meow-ing (really went with the "cat in the bag" metaphor).  

The guy seems to love posturing and acting out like that.  It is going to be likely a "fun" four years with his conservative qualities clashing with more liberal minded types.  We saw this already with his comments on solitary confinement in Rikers, which maybe can be conceivable in extreme cases.  But, he didn't go that way.

“Why am I learning about the letter through the media?” the former NYPD captain said in a response to a reporter’s question. “If you want to work as a partner, call me. ... The one thing that’s different from everyone that signed that letter and Eric Adams: I wore a bulletproof vest for 22 years and protected the people of this city. And when you do that, then you have the right to question me on safety and public safety matters.”

Then, he tossed in something about the alternatives of solitary confinement is letting people be with their "pads" (computer pads) or something.  I saw the guy on a late nite talk show and think a little of him can go a long way. Thinking the press, now with his bigger role, should have some fun with him.   

I don't pay enough attention to local issues, but with some new faces, we might have some notable things in 2022. There was also a new state law  requiring state agency websites to offer translation options for non-English speakers.  The Democratic majority has provided a slew of minor and major legislation that might not get much attention, but are useful.  

I sent a letter to Justice Sotomayor concerning translating Supreme Court content, especially when the cases involve people who might speak another language (such as Puerto Rico).  She generously responded, but noted that she could not comment on a "live" issue.  She did flag a FAQ page on the website that provides content in various languages. 

Here's to a good 2022. 

Redhanded & A Christmas Proposal

I don't really listen to podcasts (have watched Gay USA weekly for a while and usually listen to Strict Scrutiny Podcast) and did not know of Redhanded until I saw a book based on it.

The book covers various things about killers, psychopaths, Andrea Yates types, Jonestown, and more. It's a down to earth quick read without slighting the science. And, has some nastiness (and snark) while resisting just calling everyone a "monster." These are humans, dangerous, and at times sympathetic. You can listen to the British podcast at the link.

Meanwhile, CBS had some Xmas movies, since there weren't enough already. A Christmas Proposal, with a familiar face from All Rise, was pretty good. I shut it off at the "reveal," the usual obligatory conflict near the end of the movie, but nice flow and good cast as a whole. Follows the standard approach, down to the diverse cast.

Buck Showalter is the New Mets Manager

A palate cleanser, which I actually read about first, is that (probably as expected) Buck Showalter is the new manager of the Mets. The owner was so excited apparently he tweeted ahead of a scheduled formal announcement.

I basically supported this move. My thought was that the team needed an established manager, someone likely to have a reputation of independence (and willingness to go against the grain, if not always to best effect), and you know, he also has the talent. The guy on the bench from the Rays to me looked like a decent back-up option, but yes, this is partially a message move like the BIG Scherzer [he also supported the move] signing.

Meanwhile, they also signed some good position players, and if the off season players/owners dispute is settled, the Mets can get back to work to pick up at least one more guy for the pen and probably another low priced starter. And, maybe get Stroman back. I'm still worried about all that money for an old pitcher, but you know, each season starts 0-0.

Fuck You (Joe to Joe)

Senate Democrats just tied a Reagan Era (a quite different one) record and confirmed the 40th Biden judicial nominee. Democrats returned sanity, integrity, and competence to the White House. They passed a Big V rescue plan. They passed an infrastructure plan (with a few Republicans, so it can be "bipartisan" to those who care; yeah enough to matter).

Biden worked to return children separated from their parents by Trump's disgusting policy.  I want to note this particular with this bullshit sort of thing where the rest is ignored (with a photo of him hanging out with a segregationist senator) because -- for the time being -- they didn't finalize a controversial financial payout.  Not that the gratuitous potshot at Merrick Garland alone doesn't show that guy's opinions are worth very little. 

Returned sanity on climate policy. And more.

But, DEMS IN DISARRAY!!!! The "DEMOCRATS" (so people keep on saying, including on the left side, AOC pissed President Biden didn't get Manchin on his side ... didn't actually say what magic he has to do so) ARE IN TROUBLE. Such is the line. Why? For a big reason, Joe f-ing Manchin. Oh, the fashion queen of Arizona doesn't help, but I doubt without his cover, Sen. Sinema would go all the way.

Now, on FOX (and more!), Sen. Manchin says he can't support the Build Back Budget Plan.  After the latest -- that negotiations would be pushed past the holidays, but President Biden himself put out a statement that "We will – we must – get Build Back Better passed, even in the face of Republican opposition."  That was THURSDAY.

The TPM link then talks about "progressives" responding to "centrist" Manchin.  Since I always let off some screaming, I'll just laugh. What is a "conservative" Democrat?  Also, it is not like EVERY SINGLE Democrat basically (well, other than a handful of the red district caucus in the House) must be pissed off at the guy.  What "non-progressive" is not really?  

This is ... well, I'll continue to speak in caps -- PRESIDENT BIDEN'S signature domestic bill.  I don't want to -- again -- suggest there is nothing else.  There are lots of things that make me happen Democrats control the White House and Congress (yeah, even Joe Manchin).  But, it's as he says at times, a BFD.   If Biden is what a "progressive" means, as compared to DEMOCRAT, well the citation to Rep. Omar and Sanders might mislead.

[I want to emphasize this.  The BBB is not the be all, end all of the Biden Administration or the Democrats control of Congress.

Voting rights alone comes to mind, though "oh we can focus on that now! is silly since without a filibuster opt-out, that too is blocked.  If he actually said I'll trade this with agreeing to a voter opt-out, it would have been a lot less aggravating on my part.

It is a major deal and Joe Manchin is screwing the party -- as in the party of the sane -- here.]

The BBB passed the House.  Even if you toss out == and I would not == Sinema, it has 48 members of the Senate.  That represent more than a majority of the country given two of them come from California.  What the fuck does Joe fucking Manchin, one senator from West Virginia, think he has to warrant overruling the President, the House, and the rest of the Democrats (yeah, he is one), and the American people, who support this regulation?  A big FUCK YOU to the guy.

Even here, I can't toss him on the trash pile, since his vote was necessary for various things to happen.  He is not a Republican.  The Trump, pro-insurrectionist, Party.   And, as the 50th vote, he gets to weaken the BBB (gratuitously in ways that will hurt the country).  That's how it works.  

He, of course, has the raw power to do this.  But, it is a total "screw you" move, especially now.  Anyway, what can you do?  Someone on AOC's thread suggested going after his daughter, who has financial.  As if there is some special magic pressure point that will solve everything. 

You can look that up, but there is just so much you can do there.  And, if people don't think Biden and company has tried various things to pass a basic thing, which doesn't need the end of the filibuster since it is done by an exception, they are likely lying to themselves.  This is quite important to winning the 2022 elections.  

They didn't half-ass this.  Manchin is just an asshole.  He is crying national debt. Again, talk of a "signature 2.2 trillion" bill is misleading at best. It's for TEN YEARS.  So, you know, that is .22 trillion, really.  

And, it isn't likely even to be that  -- if it was passed -- to get all the votes necessary.  Second, even the 10 year number is a third of the full budget for a SINGLE YEAR.  Third, why don't we list what is in it, instead of tossing around a number alone? 

Finally, the military budget greatly overshadows the social spending proposed.  The Senate passed THAT with around eleven people in opposition.  No concern about deficits (and the BBB is PAID FOR, except maybe a small fraction, if a perhaps somewhat optimistic estimate turns out to be wrong ... not that anyone fucking cares)  THERE.  Oh, one other thing Biden did was get our troops out of Afghanistan.

Rude Pundit posted something about being resigned the bad guys will win.  Fuck that too.  I survived this long and damn if I'm not going to assume otherwise for the nation as a whole.  Hell, I'm not totally done hoping something will come from this bill.  Oh, it will be too damn small and lack stuff it should have, but something still can be passed in 2022.

Meanwhile, maybe instead of DEMOCRATS IN DISARRAY, talk of "DEMOCRATS" not doing stuff (which is wrong), maybe point to the full picture.  Nearly every Democrat, from the President on down, are on the right side.  Instead of such defeatist talk -- which encourages giving Congress to the Trump Party -- maybe, elect a few more Democrats so there will be room to make Joe much more irrelevant.  

Anyway, fuck you Joe, and duly noted that is what you are basically saying to me too.  But, appreciate the judges and stuff.

ETA:  Various details will come out after this rant of mine, including something I  added via a link after noting he announced this on FOX.  

For instance, now we have an official statement via Jen Psaki.  It's sort of a "fu" via the White House.  I would sign on to it myself. 

A later TPM piece noted "even moderates" are pissed off at the guy.  Of course, we now have more Lucy/football stuff, where he allegedly has a NEW deal to make.  Uh huh.

The most crafty scheduling probably is not only letting us see the new First Puppy (Commander, with big ears), but more teasing about a "female" First Cat due next month.  We shall see.

Supreme Court Watch (Summary)

I dropped separate refereces regarding what happened at the Supreme Court this week. A week that looked to be relatively boring had basically five separate matters, of varying importance. Not earth shattering, but worth pointing out.

First, there were basically two separate "order lists" that provided multiple court orders. Monday brought the first (scheduled) order list, which was boring. Wednesday brought a few grants, nothing that major, though at least one might be of some interest. Friday brought one more thing: a schedule for the February oral arguments.  Some federal power issues there.

There was also two substantive orders. First, with another passionate conservative dissent from Gorsuch (and Alito), New York will continue to be allowed to require medical workers to vaccinate without a religious exemption.  This does not mean this, to some rather obviously valid regulation will stay in place permanently.  The order regarded seeking immediate emergency relief, which Kavanaugh/Barrett earlier noted was not appropriate.  Without saying a final word on the overall matter. 

The other sent the abortion case back to the 5CA, which likely will mean more delays.   This involves some "inside baseball," including the pending request for the probably willing 5CA to send a question to the Texas state courts regarding the ability to sue.  The dissenting justices was particularly concerned about such methods when they did not want to provide only a narrow route for the litigation to proceed. 

And, a bonus to be continued: with a response due by Tuesday, Justice Kagan was asked to allow another abortion restriction to go into operation immediately. So, sorta busy mid-December action.

Espionage and Enslavement in the Revolution

Espionage and Enslavement in the Revolution: The True Story of Robert Townsend and Elizabeth is about two hundred pages and covers a lot of ground. It starts with the beginning of Oyster Bay (Long Island) and the coming of the Townsend family. We get various things about the American Revolution, the espionage part is a focus of a chapter in particular, and we have the travels (and forced travels) of a Townsend slave (Liss/Elizabeth).

This is just a summary. There is a lot packed in here. The title and picture of Liss on the cover might suggest to some that we will hear more about her in particular. But, we simply do not have the material, so she disappears for chunks of time. Still, it's a good book, and a decent idea for a miniseries. Liss' life might be a good plot for a fictional account, that can imagine more details. Some such works are quite good at doing that realistically.

As with the last review, this might be a longer entry elsewhere.

Abortion Issues

There is a new trend now to note that "persons" have abortions, since trans and non-binary people have them too. Granting the point, Sherry Colb still defends her use of "women," basically noting it largely still is a women's issue.

I think there is something to that, but it also a wider matter. "Persons" should be used at least somewhat while discussing the matter. Though I do at times feel like her, I'm inclined to stay (mainly at least) with "persons," in part to remind that abortion fits into a wider whole. More on who gets abortions.

When summarizing the Supreme Court not granting relief, Amy Howe helpfully noted that a lot more than COVID vaccines were developed using cells from abortion tissue. Key point: people should be clear on the breadth of the argument here, often selectively applied. Unprincipled? Maybe, but people pick and choose among religious beliefs regularly. 

Also, though originally anti-abortion states included Catholic areas where there were some liberal social policies, the ones these days also consistently have more children's health / poverty issues.  Mississippi's lack in this department while pushing abortion bans as "pro-life" was (rightly) fodder for many.

Supreme Court:  Just to keep track, the Supreme Court granted three more cases today.  One involves sovereign immunity issues as well as somewhat notably a case the Solicitor General suggested they not grant. They did so anyways.  This just goes to show that more stuff might be dropped before they have their next conference early January 2022 (sic).  

ETA: The clinic wanted the SCOTUS to immediately (instead of waiting, as is common) to put the SB8 ruling in effect, sending it back to the district court.  On Thursday, an order was dropped sending it back to the the 5th Cir., which is more anti-abortion.  What will happen next is unclear, but the expectation is that this will just result in more delay.

Odds and Ends

Football: Not a great day for NY. Jets: crushed. Giants: sorta crushed, but did score some points with a back-up & even retrieved an onside kick (as did Baltimore; both did not score). Bills: came back from big defecit, couldn't win at end of regulation. Pretty boy wins in OT.

Other Weekend: Every Time A Bell Rings has limited lesbian content, but is generally a Xmas movie. Holiday sampler really, including mixed marriage, adoption, and even a pro-choice theme. Decent film. I also had an Impossible Burger. Did taste "real" (sorta it's supposed draw), but the one I had was blah. Maybe, how it was made.

Order List: As expected, the Supreme Court orders today were a nothingburger. As I wrote this, we had another order, Gorsuch/Alito (Thomas went along without joining the strident dissent) again want to provide emergency relief regarding a NY rule involving vaccinating health workers as religious discrimination. High Federalist impatience.

A Woman of No Importance

I saw A Call For Spy on television earlier this year. It was an enjoyable account of women spies in France during WWII, including Virginia Hall (with her leg prosthesis after an accident) and Noor Inayat Khan (Indian Muslim wire operator).

A Woman of No Importance is a biography of Virginia Hall (another main character in the film is referenced in passing, Khan gets a somewhat negative paragraph). Many different details underlines that one should not overly rely on historical dramas as literal history.

The book might result in a longer blog entry at a separate blog. Hall already is subject to multiple books. This one? I thought it too long and the characters at times got to be a bit confusing. The final chapters (CIA one might be a bit too thin, perhaps from lack of info) probably do the best job. The author also wrote a screenplay for a pending Hall movie.

SCOTUS Allows Some Suits Against Texas (FWIW)

Oh well. I was not alone in thinking that the Texas abortion opinions were unlikely to be handed down when it was announced there would be a rare Friday opinion day in December. Various reasons. It was announced that they wouldn't show up. Figured someone would want to dissent from the bench. seemed a rather important duo of cases to hand down this way. And, if they waited this long, why not just wait until the Mississippi case was handed down to show what substantive abortion rights are left?

We were wrong. Gorsuch with the opinion in the clinics case, the United States lawsuit decided per curiam. Gorsuch? That's not ideal. And, certain law professors are already noting that the opinion seems to be a "how to" manual on how to narrowly leave open some path of litigation [so reasonable!] while doing do in a way that guides future legislators to close up even that "loophole."

The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings. It is, however, a basic principle that the Constitution is the “fundamental and paramount law of the nation,” and “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison (1803). Indeed, “[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.” United States v. Peters (1809). The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.

Thus ended a partial dissent, one without the "respectfully." (Thomas would not blocked all lawsuits; he did toss that word in.) That great Sonia from the Bronx. Ah. No. That is Chief Justice Roberts, joined by the liberals. Recall he was part of the four, to quote Sotomayor, who wanted to "end to this madness months ago." But, the other five would not grant a stay.

Roberts would have allowed more people to be sued, which would make it much harder to prevent the clinics from obtaining actual relief at the end of the day.  Roberts didn't think a state "declaratory" judgment handed down by a lower court judge solve everything either.  The basic problem of a state nullification, which the federal courts have a duty to address, remains.

Sotomayor added her own dissent to underline just how bad this all is. "For nearly three months, the Texas Legislature has substantially suspended a constitutional guarantee: a pregnant woman’s right to control her own body." The right in question is of particular concern for her.

Sotomayor also in detail discusses how broad the law's scheme to block protection of constitutional rights truly is. She compares the Texas "nullification" scheme to the principles of John Calhoun, the seccessionist friendly slavery radical. Like Roberts, she sees this as a wider problem than merely a single issue.

The Dorf on Law analysis argues that the bottom line here is that abortion rights specifically are at risk here. Surely. "A chill wind blows" regarding what the Supreme Court will protect there. Rick Hasen on Twitter also noted he didn't think Gorsuch and company would be so cavalier if gun rights or something were at stake.

But, I do think there is an open-ended problem here. I don't trust the guy to be consistent, having read him over the years, but I agree with his overall sentiment here. Rules do matter. And, too many think they don't apply to them. The Texas law is a travesty.

The final issue would be the U.S. lawsuit against Texas. The Supreme Court, with Sotomayor dissenting without an opinion, merely notes (without an opinion) that they shouldn't have taken the case. Why? Well, they didn't show up. Why should they have to tell us? (To be fair, a so-called "DIG" regularly doesn't explain; it should). The Justice Department sued Texas since rules matter. To some of us. 

As noted in the Strict Scrutiny Podcast, let's not bury this among the rest of the opinions, given the watered down majority relief here, the U.S. lawsuit is ever more important. If a real state remedy was present, it would not be as important.  Also, note Kagan and Breyer didn't openly - the only way that really matters - join Sotomayor.  Why not?

So, this goes to the district court, and we will see how it matters in the long run, especially in the Fifth Circuit.  Or, state courts.  The real long run will be seen when the Supreme Court rules on the merits of abortion.    

The Supreme Court was wrong not to announce this in person. It comes off as cowardly. They showed up for oral arguments. They could have showed up to announce, with Roberts and Sotomayor if they desired, the opinions here. They should have. I assume, knowing the perils, such a thing was done by a majority vote at the very least. Whatever the procedure, this is one more failure to open things to public view. 

There was a "conference" scheduled on the day this case was announced. What this meant in the days of the Big V when they often didn't show up in person is somewhat unclear. Was it a big conference call?  Anyway, as that "occurred" (the usual set-up was them actually being in the Court's conference room together), they didn't show up to announce this very important duo of cases. That is wrong.  

(Kimberly Robinson summarized the grants.)

The decision here depended on the membership of the Court. And, that is how it is going to be. Some law professor noted the political positions of various members in their past roles, including as solicitor general. Fine. Lots of justices in the past, from the very beginning, had such roles. One was a President! That by itself is not the problem either.

A problem, for sure, is how the Supreme Court membership changed. The 2000 election was not without problems there as a matter of constitutional structure. But, so it goes. The last three nominees, however, were a step way too far. And, how they act while on the Court matters. They do not seem to deem restraint too appropriate. Why would we expect they would?

The Presidential Supreme Court Commission submitted its final report to President Biden. You can go on my side panel and find it on their website. The thing is around 300 pages long. If I wanted to print it out, it would cost me over $40 at Staples. A better means to promote it, a report a cross section of the commissioners say is very worthwhile, needs to be available.

Anyway, two members -- Tribe (who argued one of the Bush v. Gore cases) and a former federal judge signed an op-ed supporting court expansion. They rejected, one might say directly speaking to Justice Breyer, the "illusion" of judicial neutrality or the idea that judicial independence was enough. Their signing on to the report should not ignore the core problem:

But make no mistake: In voting to submit the report to the president neither of us cast a vote of confidence in the Supreme Court itself. Sadly, we no longer have that confidence, given three things: first, the dubious legitimacy of the way some justices were appointed; second, what Justice Sonia Sotomayor rightly called the “stench” of politics hovering over this court’s deliberations about the most contentious issues; and third, the anti-democratic, anti-egalitarian direction of this court’s decisions about matters such as voting rights, gerrymandering and the corrupting effects of dark money.

A lot was written about the weeds of the abortion rulings, including SCOTUSBlog and spoken about it, including Strict Scrutiny Podcast. These and other cases also involve this wider matter. Finally, there is the oh so reasonable, concerned caucus.

Meanwhile, providers likely will continue to refrain from performing abortions, at least until they get that district court judgment of the law's constitutional invalidity to use as a defense. That is bad. But the reality is that constitutional litigation takes time. The NYT did not cover Alabama for more than a year prior to Sullivan.

This asshole. The NYT did "cover" Alabama -- were they unable to say a word about it? I assume this means sending a reporter there. Others continued to cover Alabama. NYT not being the only one in the world able to do so.

Meanwhile, people are unable to obtain abortions in the state after six weeks (as defined by the state's conservative counting scheme) as blocked by the law. A person's control of their body is not the same as a single paper's ability to send reporters to Alabama. This is "bad," but "litigation takes time." Bullshit is not required for reasoned constitutional analysis.

Early on, he condescendingly referenced "media" that he deemed to be unreasonably in effect saying the sky is falling. In time, he had to tweak things, when fellow law professors et. al. voiced similar concerns. I called him on it (without quoting him by name) at the now comment-free [some conservative trolls driving them to shut down comments] Dorf on Law, and he got annoyed. Without actually fully responding to my concerns.

I have the "someone wrong on the Internet" comic on my blog to remind that each wrong person is not the median. But, some opinions are broadly held enough to emphasize. Or, to underline how wrong they are. They can be useful in that fashion. 

Again, a "chill wind blows," to cite Justice Blackmun, who I recall reading as a teenager.  Various reports note how bad the result is. Surely.  This is true without saying it "upheld" the Texas law, even if in practice it does that to some degree. Thus, judge applying current constitutional law still has to follow Planned Parenthood v. Casey, which Roberts himself cited as the law.  For the time being. 

President Biden dropped a "I'm concerned" statement, supporting abortion rights and a national abortion protection law.  It's nice to have a pro-reproductive rights president, even if such a law is a long shot with the filibuster.  As to if the Barrett Court would uphold such a law, we are far away from that. Ditto the idea (assumed as a given by some) that total Republican control would mean a national abortion ban.

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The importance of the opinion led me to write this extended stand-alone entry.  I noted some cases were granted full review today, which is often noted before the Order List is released on Monday with denials and other odds and ends.  Another sole order was dropped, which (without comment) rejected a request for a stay involving the sales of flavored e-cigarettes.  

And, perhaps -- like me -- only finding some final mistakes after publication, a couple typos were already found in the abortion opinion. A dated link is now provided with two corrections.   

These things tend to be typos (as is one of the two here, one number for another) or oversights, but the first correction added that Gorsuch "announced the judgment" of the Court.  He actually did not really do this -- they didn't show up.  It still says that at the "today at the Court" feature that they will not take the bench. 

New York City Grants Voting Rights to Non-Citizens

December 10th in International Human Rights Day. [And, my mom's birthday, though the two are not related, really.]

Democracy is an important part of human rights. The world is an ever changing stream of people and citizenship alone is a questionable limit on voting. It already is not a limit for First Amendment rights overall, for which voting might be argued to be one (particularly, the right to petition). 

(The Supreme Court referenced "the relation between voting and political expression" in a poll tax case in the 1960s, but rested on equal protection.  And, once the right to vote is granted, that does have a potential power to make it broad indeed.  

But, as of now, a freestanding constitutional right to vote has not been recognized.  It is a special "fundamental right" for which more care in given all the same.  I would argue there very well might be a constitutional right to vote, at least for citizens.  Nonetheless, a clear constitutional right to vote would perhaps be a good idea.)  

I earlier referenced pending vote -- now final -- of the City Council of New York to allow non-citizens to vote. This used to be a common practice until the early part of the 20th Century, but now only is allowed elsewhere in a limited number of small cities and such. We just had an election, so the next available one is 2023, unless there is some special election.

The measure applies to local elections, but is sizable scope. About one million adult noncitizens live in New York City, twenty percent of the current registered voters, though it remains to be seen how many are eligible. To register, noncitizens must have lived here (documented) for 30 days, the same requirement for citizens, and have at least a work permit.

(There was some concern the new electorate would change political power, including black representatives, but who are the primary immigrants in the city? I would suppose people from the West Indies and Latin America, which includes a range of black people, though the fraction of Latinx voters can be important. But, if they are a sizable part of the community, why shouldn't they have a role in picking their leaders?)

Some might be upset at the 30 days, and since non-citizens do not have a constitutional right to vote, the requirement could be tougher. Who cares though? I don't see a somewhat stricter test there as too important though would not really be bothered if it was in place. 

One can reasonably argue that more than thirty days is necessary to be part of the electorate in this fashion. Again, how does one draw lines there? And, it is not like we have an election every month or so. Here, the next scheduled election is 2023. We have basically two a year (primary/general) when local elections occur.

The discussion here, by the author of a biography of the guy, of a key framer of the Fourteenth Amendment underlines the limited usefulness of relying on a few people to obtain original understanding of constitutional provisions. The whole practice is of limited value generally in applying the Constitution today because best practices is not to rely on that.

A normal practice is to speak of general principles behind a constitutional provision. This is okay as piece of the puzzle. But, we see here a key framer having views on citizenship -- a basic thing -- that were rejected. The discussion underlines the importance of looking at all the information as a whole. With a grain of salt at that.

Yes, it is noted that (perhaps realizing he lost), his views didn't return during the 14A and 15A debate process. But, Bingham's views a few years before is still notable. Text alone cannot settle questions and many of the debate materials we now use were not even available in the beginning [such as Madison's notes].

So, what was "in the air" beforehand mattered here. And, it is not like Bingham is a sole figure here. James Madison has various views -- including involving the Establishment Clause -- that are not the median position at the time.

Anyway, from what I can tell, the measure is allowed under New York state law. As the article notes, there was non-citizen voting for years, from time to time, including until this century for school board elections.

My own councilman, the person who resigned his state assembly position (non-term limited) to take a more profitable local position (though his primary challenger last time won this time, he finding the electorate too liberal to be worth trying this time) fear-mongered some.

"Bronx Democrat Mark Gjonaj asked colleagues to delay the bill, saying it could make the city’s elections vulnerable to nefarious foreign threats or people who are “transient.”  Such an asshole.

A few Democrats were wary of the measure, including as noted above the possible change of political power it might bring. This suggests why a City Council with five Republicans (back in the day, there was one) voted on the measure 33 to 14 with two abstentions.  The anti-immigrant voices, in a city of immigrants, are offensive.

The matter will likely be subject to litigation, but again, there is time before the next local elections covered [it doesn't sound like judicial races are covered].

There are so many continuing struggles with democracy in this country, including Republicans continuing to put roadblocks in various states. So, it is very important to support the measures that are in the works that does advance the cause. 

As we continue to worry about democracy in the nation as a whole, including the sanctity of upcoming federal elections up to and including the presidency. 

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An important development in the 2022 elections occurred as well. Tish James, the New York Attorney General and major supposed primary opponent of the current governor, suspended her race for governor. Things were not going well, the more liberal minded potential candidate probably particularly having problems gaining upstate support.  

Attorney General James will now run for re-election, leaving lesser lights to provide a challenge (including to her left) to Governor Hochul.  Gov. Hochul might have appointed another former prosecutor to the Court of Appeals (if a black woman), but as a whole, she already seems much better than Andrew Cuomo.  

I still probably would be inclined to vote for Tish James.  Less so someone else, though I as a rule favor the left leaning primary option.  This being a state office, the new NYC law is not involved.

SCOTUS Watch

Abortion: The abortion arguments from last week, of course, continues to be a major area of concern. Dahlia Lithwick, in part from disgust involving Kavanaugh, had for a time took a break from Supreme Court coverage. She appears to have at some point came back in some form. She interviews one the advocates here, including the tidbit that the advocate has a teenage daughter. 

Order List:  The week started with an Order List.  Nothing really of note, except again for the usual run of the mill things (what is a "prohibition" and why did Alito not take part in the consideration of one of them?) that warrant a Frequently Asked Question page.  (A "prohibition" is a type of writ issued that rules that a lower court this not have jurisdiction over a case.  Like habeas or re-argument, these are rarely if ever granted here.) 

The one mild exception here is a brief statement by Justice Sotomayor that she is sympathetic to an opinion below regarding a grant of qualified immunity.  She does this regularly -- she notes that it is appropriate, using normal rules, to not grant a case.  But, Sotomayor then flags that the case is worthy of concern all the same.  She usually does this with criminal justice matters, including capital cases.  Other judges do it from time to time, but she does it more often.  It is part of her "informing" role.

Live Arguments:  SCOTUS also dropped a notice that they will continue to have limited access to public oral arguments (including fully credentialed press) the next two months, keeping out the general public.  In return, they will continue to have live arguments.  They should just declare the latter to be permanent.  Video pending (in our dreams).  

It was noted earlier that the one time they had a full opinion this term, it was released automatically online.  This led some to worry about the continuance of the practice of opinion announcements.  A unanimous water dispute opinion dropped during Thanksgiving week will hopefully not be a silent precedent that opinion announcements are no more.  

(And, after I wrote this but before posting, we have another opinion announcement day without them showing up tomorrow.  Whether or not it is a big case, this is not a great development.) 

PSCOTUS:  The Presidential Supreme Court Commission had a brief session to provide various final remarks and vote (unanimously) to submit their report to President Biden.  A vote does not mean the commissioner agrees with the report in each and every case.  Also, a general agreement (as suggested by a statement before the final vote) seemed to arise that the test was if the report fulfilled the basic mission statement.  

The report, basically as intended, does not make recommendations.  It provides a summary of a range of issues, including arguments on both sides.  Some find this pointless, basically, but there is very well a value to do this.   The issues are put forth to the nation and the matters are made of national importance.  The final decisions are up to other actors.   

Sherrilyn Ifill president and director-counsel of the NAACP Legal Defense Fund, is one of the commissioners.  She supported both the purpose of the commission and its work.  When others say it was a "dud" or use other disparaging remarks, perhaps they can talk to her -- that is, while not honoring her life's work (she's stepping down from her NAACP position) though repeatedly not referencing her being on the commission.

Maybe, if more attention was put on the commission, it would have affected their work. As is, some critics was upset the commission was alleged "stacked against" court expansion.  The latest report notes that some commissioners support court expansion.  People find other things to complain about.  And, looking at the most recent version, I would like a more down to earth approach to help deliver its message to a wide audience.  But, maybe, we can try to use it as reforms are pushed?

Anyway, here is a Washington Post summary of things, including  support from change by a Clinton judicial nominee, arguing that "The court has been effectively packed by one party and will remain packed for years to come with serious consequences to democracy.”  She also rejected the mere "appearance" of fairness and did not worry that strong criticism would net threaten the integrity of the judiciary. 

It is not surprising that a Bush nominee had a quite different view.  But, such competing views was also seen as a positive development by the commissioners.  I'm fairly accepting of that point of view.  The article suggests some common ground on an advisory code of conduct for SCOTUS and livestreaming.  I will try to read it when the report is final.

Arguments: There were a few oral arguments this week, including for an important case involving requiring the state to fund religious schools. 

Back in 1981, Widmar v. Vincent, there was opposition (8-1) to a strict view of separation of church and state beyond what the Supreme Court put forth as a floor.  Justice White, who also was open to allowing more mixture, was the sole dissenter.  Ditto in certain cases involving public religious displays.  But, Locke v. Davey allowed some "play in the joints" with only two dissenting.  

We are moving away from that, which is not compelled as general matter.  It shows just what "religious liberty" means is rather debatable here, when Madison himself supported separation, not some "even playing field" that included a "neutral" funding of religious education.  Sotomayor dissent forthcoming?

Justice Souter was on the lower court panel -- in 2020 -- upholding the state law.  Not surprisingly, given his rules as a justice.  He probably would be depressed by the oral argument, which suggested there is a problem with drawing lines on what schools are "religious."  So why not direct funding of religious schools, even if that isn't the case at hand?  

Death Penalty: After what looked like a botched execution even to a media witness who saw these things over the years, Oklahoma executed Bigler Jobe Stouffer this morning.  A morning execution seems novel though maybe we should be happy we don't have to wait all day for the expected Supreme Court denial and so on. 

The state pardon and parole board voted to support commuting his sentence to life in prison.  The guy nearly 80, executed for something in the mid-1980s (though it was final later because of appeals), this would probably seem more reasonable than for some one else.  He was in prison for killing a school teacher, part of an attempted windfall scheme.  

He alleged innocence, but doesn't seem it is one of the stronger cases there. This is one of those matters of principle cases.  The final claims dealt with lethal injection, which the Supreme Court clearly doesn't care about much any more.  The better claim at this point is a matter of discretion -- if the board split on the question, maybe decide on the side of life?  If the guy was ungenerous in prison or something, maybe you would worry.  But, doubt this 79 year old was.  

I understand that this case might not work using usual rules for SCOTUS grants.  But, it's an execution, one after one that at least appeared botched.  A statement at the very least from SCOTUS (why it was rejected) or Sotomayor (probably) would still have been appreciated. And, warranted.

And More: At least one opinion is scheduled tomorrow (they now flag when this will happen though it is still a guess about what will come down), but they won't do so in person.  Last time, there was expectations it would be the Texas abortion cases.  It turned out to be a water dispute.

I will use a separate entry to deal with that case.  A conference is also scheduled with an Order List for Monday.  I might combine things for a Monday entry, the Order List likely another yawner.  If it is a big case, it might be useful to have a few days to process (often things pop up that I add) anyway.