Football Playoffs Watch: One More Upset

Buffalo's choke job (how Buffalo) was the Giants' benefit of sorts. The Giants chose its offensive coordinator as the new head coach, apparently to see if Daniel Jones can win some more games. I have my doubts on his potential, but so it goes.

It's the AFC's year as home team in what is usually a neutral site Super Bowl. Tampa had the glory as both the home team and being able to win at their own stadium last year. Bengals are the home team, after KC just about stopped scoring up 21-3 (giving up a chance to tack on three at the half), though it went to OT after another KC FG at the buzzer.

Won the toss, but gave up the ball. 27-24. Howard "Doctor Fever" Hesseman has died, but Cincy is going to the SB. After that Bills choke job, appreciate it. SB at Rams' stadium. SF up 17-7, but poor 4Q, especially last two drives. Rams away team in the SB. 20-17.

First Cat Arrives

Willow is named after the first lady's hometown of Willow Grove, Pennsylvania. She is the new First Cat. We have heard of the possibility of this happening since at least last year. Turns out the actual cat first met the First Lady in 2020. The dogs (including Major's difficulties) factored in, but not totally clear why it took this long. But, meow!

More On Current News

ERA: There is an article on the "new amendment" to the Constitution, which I discussed in my "in other news" post. To remind, here is the text of the ERA passed by Congress and ratified by some number of states:

"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. "Sec. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. "Sec. 3. This amendment shall take effect two years after the date of ratification."

Congress included a time limit (later extended) separately. As noted in the article, the Supreme Court years back said it was illogical to think an amendment could be pending for all time or something.  The time limit passed, but three states decided to try ratifying, Virginia doing so two years ago as of Wednesday (1/27).  So, in theory, it's is now in effect.  (Not really.)

Some, including some in Congress, think the Constitution does not allow for time limits. But, I don't think you really should be overly literal there on what is implied by the text. Liberals are not strict texualists in general. Congress twice set forth time limits and they were both sensible and reasonable application of the law.  

The article basically argues the bottom line is what society will accept. And, some Easter Egg where the ERA is by quirk of fate the law of the land without some additional action is probably a bit much there. That is the charm of some congressional action to deal with the time limit. Given my druthers, I would have the states do it (though again I don't think experience or constitutional principle should count recissions though they can factor into congressional judgment).  Congress is a valid reflection of the American public all the same. 

The 27A didn't have one and it's a joker anyway.  It didn't really do anything, the law already covering pay increases, a minor issue too. Plus, I don't think it was a great precedent.  Anyway, if the thing was re-submitted, the extra few legislatures probably would have ratified anyway, like they wind up doing after it was announced as the law of the land. 

A final thing is again what the thing does. The article links to a list of things supporters suggest it can do.  The big concern, of course, is abortion, though I bet some anti-abortion types who support sexual equality (or say they do) would argue it doesn't require it, just as the current Constitution does not.  What does "equality of rights" mean?  "Deny or abridge" is also different from "deny" [Equal Protection Clause] or "deprive" [due process] though just how "abridge" changes it is unclear.  

I'll repeat my argument that a debate should be have, especially on just what it does.  I asked a question at some book event and two of the law professors from Strict Scrutiny Podcast took the question (in writing) and basically didn't know either. Perhaps, we can have a full debate.

SCOTUS Confirmation: Another commentary talks about the likely "bitterness" of the upcoming Supreme Court confirmation, one that is likely to bring up recent controversies. Yes.  And, it should.  It should bring up it all.  Let's air it out and have an open debate and so on.  Let's sneer at this shit:

“It is a sad commentary on the nomination process that it has so disintegrated over the years,” said Senator Susan Collins of Maine, one of the handful of Republicans considered to be in play as potential backers of Mr. Biden’s pick. “If you look at the incredibly strong vote by which Stephen Breyer was confirmed, you just don’t see it nowadays.”

Sad commentary that Sen. Collins was in full troll mode supporting Kavanaugh.  Running for re-election, especially since her vote didn't matter, she was the sole Republican who couldn't with a straight face vote for Barrett after letting Garland swing in the wind.  Again, the vote didn't matter, so I don't really think much credit should be given for someone running for re-election against supposed real competition [people repeatedly were sure she would lose; she won by almost 10 points].

Breyer was supported by the likes of Sen. Orin Hatch, and confirmed to the court of appeals after Carter lost re-election. But, Garland was also previously supported as a great choice by Republicans.  No hearings or anything.  So sad. Both sides do it, you know.   Kagan was another person who should have received wide support, especially given her palsy-walsy with conservatives in academia.  Was not to be.

But, didn't Sen. Obama "filibuster" Alito and not support Roberts? There was not enough votes to block Alito.  It was just a symbolic vote, one dealing with an important swing vote that clearly shifted to the right on multiple key issues.  And, yes, some Democrats didn't vote for Roberts for Chief Justice (opponent of voting rights).  Half of them did.  Only a handful of Republicans voted for either Obama pick.  

Anyway, some people are arguing that Republicans won't go all in here with the stakes not that high and ultimately (other than the asinine idea that a VP can't cast the tying vote) not having the votes.  They could in theory try to block action in committee (two have to show up for a quorum), but I doubt they will go that far. If they do, the Dems can change the rules. 

I think ultimately at least 2-3 Republicans will vote for the nominee, even if they will in general make some show of it.  But, again, it's necessary and proper to bring up wider issues, along with the usual pomp and congratulations.  

RIP: An black actress who is a cult favorite recently died.   RIP Carol Speed.  One person who also was in one of her hits is Austin Stoker (still with us), who was in the 1970s classic, Assault on Precinct 13, which was remade with the usual over the top touches, films these days not realizing the low key can be better (see also, Day of the Woman).

Talking film, there were two Robert Downey Sr. (father of the better known actor) cult films from the 1960s on late TCM last night.  Both are B&W and work better in small doses in my view.  Babo 73 is an off the wall short (under an hour) film about a future President.  Putney Swope is a full length satire about a black man who takes over an advertising agency.

I saw bits of both and again found them off the wall but tiresome after awhile.  The director actually dubbed the lead actor in the second (the actor had trouble remembering his lines; the dub is of a gravely voiced person that seems to fit the character, who looks like he should be playing jazz some place).  A bit part was played by the actor who was the psychologist on the television show MASH, one of a few familiar faces (Mel Brooks is apparently in there some place too).  

TCM tosses in some cultish films sometimes late at night.  They also play silent films sometimes.  You can find some interesting stuff if you look. And, maybe unlike me, you actually will find yourself watching the whole thing.  Svengoolie tonight conveniently is playing a film I saw a bit of (and it looked interesting) on a classics channel.  

Not the first time that happened by coincidence, but not so close to the first time seeing it.

Packed Court Speeds Along Another Execution

Instead, however, the Court was the scene of a cynical coup d’etat, in which Mitch McConnell jammed three hard-right judges—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—into place to fulfill a cynical campaign promise made by Donald Trump. The Court faces a crisis of legitimacy unlike any since the 1930s, when the conservative ideologues of that age shredded much of the early New Deal.

We repeatedly get bullshit about how those who talk about expanding the Supreme Court are merely concerned about conservative results, which is you know so troubling unlike let's say those neutral sorts that support term limits. You can ignore the elephant in the room all you want; it is still there. 

A basic concern is HOW the three nominations got there.  This comes up after one of the other six announced his retirement.  It partially was noted that Democratic administrations since 1968 so far were able to put four nominees (two -- Fortas and Garland* -- blocked, though the first with a hearing) on the bench.  

This is tempered a tad since a few of the Republican nominees were moderates, Souter and Stevens (a Bork supporter) now basically counted as liberals.  Only so much.  The nature of the last three nominations especially rankles.  But, it is perfectly fine when talking about court expansion to flag how in the last FIFTY years there was a mismatch of popular vote (ONE Republican since 1989 won the popular vote, that upon re-election).  

On that front, yes, term limits and/or plans to encourage a steady diet of nominations will address the problem to some extent. Eventually.  Nonetheless, there is quite a reasonable passion here to address inequities, including regarding to birthday girl Amy Coney-Barrett. Until then, each time the Supreme Court acts, people have a right to question it. 

It's tainted. We can ignore it.  We can just sigh, as some do, and not even admit the problem (if realizing the inability to change it for now).  The elephant is still there.  

====

Matthew Reeves was executed yesterday amidst all the Breyer news. Who was Matthew Reeves?  He was a forty-something black man, intellectually disabled, who murdered someone at eighteen.  The details, like many murders, are horrible to read about.  So, we get the "he got his" comments. Do these people all want the thousands of other murderers to be killed too? The public does not seem to want that to happen.  

[ETA: The Vox article on this case reminds me SCOTUS handled this case before.   The unsigned majority leads with the facts, which is a sort of red flag, though the issue is the law.  The dissent notes among other things that the jury only 10-2 voted for the death penalty, non-unanimous juries allowable then on such questions.  The opinions help to clarify why as a matter of law his intellectual disability is in effect not an issue any more.]

Lower courts accepted that since he was disabled that it was appropriate to explain to him in simpler language the alternative Alabama provided -- lethal injection or nitrogen gas.  Supreme Court doctrine holds people in his position have to offer some alternative if they claim another means of execution is problematic.  States are starting to offer nitrogen gas though no state has yet actually used it yet.  Nonetheless, it is put out as the newest ideal method to execute people and you'd think the state would just wait and use him to serve as an opener. 

See, we are so generous!

Now, people also focus on him being disabled, but for whatever reason, that wasn't enough here even if years back the Supreme Court held that a state can not execute someone below a certain intellectual ability.  The Court gives the state some discretion there and I guess he felt into a hazy area or maybe could not make the claim for some other reason. 

But, again, people flag this as an independent problem.  Plus, he was eighteen. There is starting to be some concern that eighteen is too young, and twenty-one is a more clear line for maturity.  People like Justice Breyer also might flag that he has been on death row over twenty years.  Or, oppose the death penalty generally.  The claim here is narrower.

Justice Kagan wrote a dissent for the liberals.  She would have let the lower court ruling stand, not finding a strong enough reason to second guess its findings.  They are particularly detailed and well sourced as these things go. Now, maybe you disagree with her.  I am not inclined to do so, but maybe you do.  What did the majority say?  Well, nothing.  They merely overruled the lower courts without an opinion.  Bad pool.

This sort of basically gratuitous action was apparently too much for birthday girl Amy Coney-Barrett.  She did not join Kagan's dissent.  She simply noted that she would not accept the state's request to overrule the lower court's judgment.  A limited bit of sanity though WHY she did so would have been nice to know. This is a matter of life and death.  A federal judge is disagreeing with a state's judgment.  Why?  

(Again, this is not about blocking his execution.  Barrett was fine with executions after she came on the Court, after all.  Ultimately, the path is left open to execute him using nitrogen gas, which the state has authorized. It is not some theoretical alternative. It is one they have established, in part because of lethal injections being so controversial in recent years.)

As with the majority's ruling (since five people need to have joined, we don't have to pretend not to know who they are), we can guess. Perhaps, as one person suggested, she was following a previous statement where she would not in the so-called shadow docket vote for relief basically out of time unless there was a compelling reason to do so.  

Meanwhile, the majority (using past standard weighing factors) went the other way.  Thinking the lower courts were abusing their discretion.  Then, SAY SO.  It's a matter of a person's life.  If you feel the lower courts here are not doing their job correctly, explaining why will help them in the future.  We can disagree with their reasoning, find their whole majority suspect, but at the very least we would have it on record.

They went another way.  Matthew Reeves is now dead.   

---

* I'll end there for now.  

ETA: Clearly, the biggest news is the release of the calendar of the March argument with generally low key issues (if one or two that might be interesting to more than five or so people, including a war powers one) such as "When a locomotive is “in use” on a railroad’s line and therefore subject to the Locomotive Inspection Act and its regulations."  Surely, to quote Justice Breyer, one of those rabbit-duck issues.

Also in the news ...

Eric Adams:  Other than an amusing this I saw on Twitter where the new Bronx Borough President flagged that she wasn't on the "welcome to the Bronx" sign, don't know if there is anything significant happening yet with the new city personnel.   Or, it is a bit soon, since they just came into office the beginning of the month.  Some things are popping up.

The decision by the New York City Conflicts of Interest Board, made public on Thursday, seeks to put an end to an uproar that erupted in America's largest city after Adams initially sought to hire his younger brother Bernard as a deputy police commissioner for a yearly salary of $240,000.

The new mayor wanted to put his brother in a well paying policy job.  A finding has been made that the only way to obtain a pass of anti-nepotism rule is that if he is paid $1 and get a lot less power.  With major policy positions going to Trump's relatives, such concerns are appreciated. 

The mayor, who might be open to some reform minded stuff even with his past position as a police officer, still has made some conservative noises regarding criminal justice matters.  This article suggests his policy paper on dealing with guns is not just standard boilerplate, but includes some concerning conservative shifts such as on bail reform.  

My state senator is already on him and I'm saw some local progressives will too.  In his remarks yesterday, Justice Breyer said that democracy is basically left to us, the people at large.  I continue to respect that sentiment and I'm sure in various respects the City Council and other actors, including activists and protests etc. will influence mayoral conduct here.  

Breyer might be too naive or worse (a bit of bullshit), at least as applied to the current Court, about how the Court is above politics (whatever that even means). He was right on this point. 

Ukraine:  A major concern, if one many here (and I assume there) probably feel is just out of their hands, is Russia's saber rattling against Ukraine.  Remember the first Trump impeachment?  Yes, that Ukraine.

There are some ways the U.S. (with other countries) can act to pressure Russia and punish it (I assume Russia here is at least a bit more than Putin) if they do invade.  My bottom line there is that I am glad more serious people are making the decisions on our end.  As Breyer (yeah Gorsuch, see yesterday) noted, the world affects us in a range of ways. We see that with COVID, including to some degree on largely forgotten areas like Africa.

Congress should have a role, but realistically most of the effort will be on the President and his Administration.  

ERA Again: President Biden dropped a statement calling (including its legality, clashing with the last Administration) "Congress to act immediately to pass a resolution recognizing ratification of the ERA."  This is basically advisory since it has long been accepted that the only role a president has in the amendment process is a sort of ministerial one to accept state ratification and declare an amendment is passed as a mere matter a form.  

The situation now is a tad more tricky. The House again announced a resolution supporting this.  I am not aware of there being much chance of it passing the Senate though you might find a couple Republicans supporting it in theory.  Three states "ratified" it and the question is if they should count with the time limit set forth expiring thirty years ago.  

Again, simply put, I support the constitutional power and logic to discretionary time limits as part of congressional power to provide details (necessary and proper etc.) to the ratification process.  States do not seem to have a power to revoke ratification (at least, Congress has no need to accept them).  Congressional power to set forth rules of ratification is like the Senate power to apply a punishment after an impeachment conviction: even if the core power is supermajority, the detail is majority rule. 

(There is debate over such things, but that is what they are at best. Debate. A constitutional policy dispute is not a trivial matter, but it gives the elective branches more discretion to act.) 

I have various thoughts, but the core one I would focus on is to have a debate to provide clarity on just what the ERA would do.  The text is not just a matter of adding "sex" specifically to the Equal Protection Clause (and apply it to the feds).   It does more than that.  

Perhaps, this is something that people should bring up in the 2022 elections. Given my druthers, with so much time passed, I would let the states decide again [Congress can even offer a resolution inviting advisory statements from states to help clarify the current need.]  

International Holocaust Remembrance Day: This day was set based on the liberation of the Auschwitz concentration camp.  A few years ago, I went to a holocaust memorial museum near the Staten Island Ferry.  We have here the horrors of life that put detail in terms like "man's inhumanity to man."  The organized scope of it is hard to imagine on some level, but specific cases continue to occur. 

The date might sound a bit early, but the camp was in Poland, and was liberated by approaching Soviet troops. The most famous survivor, probably, was Otto Frank.  His daughter Anne was moved to another camp with other women and died shortly after.  Anne Frank's diary continues to be a standard reading for many teenagers.  A lot fewer probably read about the final months of her life, harsher reading than hiding out in an attic.

I gathered in some way I was taught about it (in the 1980s), but don't recall how.  I gather some are showed some unpleasant film strips or something.  Some are wary about the details as shown by a controversy about eight graders reading the Maus graphic novel (which I read a few years ago).  Can't include a touch of curse words and nudity or something.  

I will end this "other news" segment with a reminder that graphic novels are a useful education approach.  Persepolis, a graphic novel about a girl growing up in 1980s Iran, is another case. Also, there are various graphic versions of things like the Constitution or great works of literature etc.  It's a helpful approach in my experience, even if the specific details, like all sorts of things, are variable in practice. 

Breyer Announces Retirement

First, Oklahoma executed Donald Grant for murdering two people in a robbery over two decades ago. I'm not horrified, but still find it without much of a useful purpose. It's not as close as a call as some, but others as bad or worse will not be executed. And, the lethal injection protocolo (as noted in his brief) is dubious in practice in Oklahoma.

Then, there was an official announcement of Breyer's retirement, his letter dropped earlier. He will stay until the end of the term, "assuming" his replacement will be confirmed by then. The wording of the letter also appears to suggest he will take advantage of a privilege to retain the "office" of a justice by doing work in the lower courts. 

We also continued to have some good coverage of Breyer's career, including from two liberal court journalists which also provide some links for further reading.  Like Prof. Leah Litman (who just got tenure and is a strong voice on Strict Scrutiny Podcast) tweeting today, both articles provide a reminder that Breyer was an excellent public servant. Now, he very well might have past his time, but that is another matter. 

The Vox article provides a favorite summary from Breyer's book Active Liberty, which is a lot more realistic (if vague) that originalism or some simplistic textualism:

“All judges use similar basic tools to help them accomplish the task” of interpreting such a text, Breyer wrote. Judges “read the text along with related language in other parts of the document.” They consider the text’s “history, including history that shows what the language likely meant to those who wrote it.” Judges “look to tradition” indicating how this language is used in the law. They must take into account previous court decisions and other important precedents, and “try to understand the phrase’s purposes” or “the values that it embodies.” And they “consider the likely consequences of the interpretive alternatives, valued in terms of the phrase’s purposes.”

Also, one of those links is to recently deceased Lani Guinier discussing the ability of judges to speak directly to the public about certain issues, highlighting Breyer's dissent in Parents Involved.  The opinion is but one where Breyer trusts the expertise of other branches of government, including administrative agencies and sentencing commissions. 

The other (shorter) article is from RBG, largely talking about the value of reasoned decision making, including in dissent.  It ends with her general argument about Roe v. Wade, which tries to do too much (she compares it to Brown as being less based on precedent; there is a long summary of such precedent, even beyond the concurrences).  I am more supportive of the idea Roe went too fast than stuff (written in the early 1990s) about how legislatures -- when even New York only had abortion rights with a government veto -- were ready to change the law anyways. 

The general idea is that Breyer supports negotiation, trying to get something, even if it means needing to go along with some stuff he doesn't like.  A prime case tossed out there was the PPACA (not Obamacare! the SCOTUS had a page labeled with the actual name!) where there appears to have been some sort of deal where Breyer/Kagan accepted striking down mandatory Medicaid expansion in return of getting the individual mandate (and the Vox article notes, perhaps something more, Roberts perhaps ready to only accept part of the law even if he signed on to the tax portion) upheld.  Given his druthers, he surely would not sign on to the coercion portion.  

But, Breyer -- from his time working in Congress -- is a deal maker.  Now, the value of that NOW is dubious.  It remains a useful approach though I also like to have some people who are less inclined to do so.  You need a diverse group on the courts, both in style and personal characteristics like black women.  Breyer's overall optimism at this point might seem too naive at times.  That too overall is a nice approach.  And, like Prof. Litman tweeted, he is seen as overall a nice person.  

President Biden says he will have a name by the end of February.  Jen Psaki in response to a question yesterday said he received the Presidential Supreme Court Commission report and is examining it.  Okay.  Well, again, while this confirmation process is front and center, let us not only honor the precedent being made here, but the wider court issues involved.  

ETA: Here is the link to the official press release and kind words from his colleagues.  Kagan's is sweet, Thomas' is touching too (long colleagues, often sitting next to each other), Roberts' is charming too, and Souter has another nice brief comment.  Gorsuch's reference to "our" law instead of just "the law" annoys me since Breyer (including with a book) has emphasized his belief in the international nature of the law.  

To partially quote the show Friends, this does seem to be "the end of an era."  Thomas is the only justice left from pre-2000 after Breyer leaves.  Kagan has some of his optimism (though Sotomayor might too -- she always puts it on in public appearances, her public persona, even if on the bench, she comes off more truth-teller)  and coalition building spirit.  

And, I don't know the vibe of the next person, obviously, but a newbie will probably take time to get her feet wet anyway.  We have truly reached Trump Court (or six person conservative / use your adjective) status.  The band-aid is already off.  I think saying he played "hardball" (Dahlia Lithwick) is a bit much there.  Yes, like others, it was a strategic retire.  

[The short ceremony is fairly atypical though his predecessor didn't have one totally different.  One professor said he thought it was not really appropriate, comparing it to Stevens' opposition to having a swearing in at the White House.  But, that is a ceremony introducing a justice to the Court. This is less of an official event, and is more appropriate as part of the notification of the resignation.  I think it's okay.]

"Hardball" suggests some special amount of strategic action. I think retiring now makes basic sense without a matter if being obviously trying too hard.  He waited a year (like Kennedy, but there you also had another seat, and they have a policy of trying to do it one at a time) to show some respect.  He promoted his book, selling the "above the politics" nature of the Court.  He can wait longer, but why? Did Kennedy?  

What about retiring in February?  That seems a bit early to announce, though one reporter flagged remembering Justice White did it.  Who knows why he timed it now.  After recent nominations, adding more time to avoid delays (Kavanaugh missed the very beginning of the term) makes sense. He very well might have been affected by pressure and the political situation.  Again, his overall pragamatism should factor that in.

Anyway, as the "friendly one" (his name for Leah Litman when she was a clerk) and others noted, it was charming to see him and all the nice words said about him.  It is bad to need to badmouth in any way decent people (I don't even like people who can't admit Thomas has some good qualities and get why they do), including the RBG.  He is very decent and an appropriate ending of this entry is Kagan's statement:

I’ll miss Steve Breyer every day after he has left the Court. He is a brilliant and wise judge whose vision of law will remain of great importance. He is the best possible colleague. He believes in making institutions work; to strengthen this one, he listens to other views with care and generosity, and does everything he can to find common ground. And he is the best possible friend. He is kind and warm and funny. He has boundless optimism and a great heart. I can hardly imagine the Court without him.

RBG died wishing President Hillary Clinton nominated her replacement.  Breyer got his wish, even if he didn't want to go -- his former congressional colleague (of sorts), someone like him in various ways, replaces him, and likely will be a former clerk.  That should go down better than the last time that happened.  (Kennedy/Kavanaugh) 

Breyer To Retire (Soon)

Jen Psaki might not have wanted to assume so without a formal announcement from the horse's mouth, but after some teases recently from people with supposed close connections to Breyer, it basically is assumed to be now. This includes not only a range of SCOTUS reporting, but Majority Leader Chuck Schumer (with an ill-advised "all deliberate speed" reference to the speed of the process) on down giving Breyer their thanks and assuming a pending confirmation process. 

(I did see a different phrasing later, perhaps an assistant clued him in, though the guy did graduate law school not too far after Brown:  "In the Senate, we want to be deliberate, we want to move quickly, we want to get it done as soon as possible.")

President Biden is sticking with his promise to nominate the first black woman (black women are the most loyal base for Dems these days). Sherrilyn Ifill, moving on from heading the NAACP Legal Defense fund, is a sentimental favorite of some. But, probably in the order of likeliness, the short list appears to be:

• Ketanji Brown Jackson: D.C. Circuit
• Leondra Kruger: California Supreme Court
• Michelle Childs: South Carolina District Court

Judge Kruger reportedly was a top favorite for Solicitor General (Elana Kagan was Obama's), but she didn't want the job.  Jackson was recently confirmed to the D.C. Court of Appeals (53 votes).  She was even raised as a possibility for the Garland Seat, but she was a younger district court judge then.  It was not really sensible, especially for a lost cause seat where the best shot was to embarrass Republicans.  

Various examples can be cited to show the value of caution.  But, it is likely that he will announce his retirement and his replacement will be confirmed. Will it be without Republican votes as troll Lindsey Graham suggested? I have my doubts.  If their votes do not matter, and given Breyer's vote is not some sort of "swing" vote or anything, 

I think you will likely get at least two to five votes for the nominee. Also, helps Republicans seem reasonable and not racist.  I won't bet my non-existent farm on it and the lower number is clearly safer.  I do not think we will have to deal with the VP tiebreaker scenario.  And, no, I don't see Manchin or Sinema (neither who had issues with Biden nominees except in two or three cases, none judicial) causing any problem.  Not their concern.

(IF the Senate elections went differently, the Republicans could have been in control.  Given their votes mattering, I'm less clear you would get Republican 'aye' votes, if they mattered.   Or, if we would get a vote at all. Oh so important was that Georgia run-off.)  

There is being raised some idea that constitutionally a Vice President cannot be (Tribe regarding Pence) a tiebreaker here.  Vice President Harris already cast a tie-breaking vote in nominations.  The debate is on Advise and Consent power.  A divided vote is going to be pretty rare, but there were numerous cases where vice presidents cast a tiebreaker here.  

It might not be IDEAL for a vice president to be the tiebreaker here, at least for judicial nominations.  Even there, I'm not really sure why a slight tiebreaker should not be present since presidents are doing the nominating and here we have the president and a split of the Senate going one way.  Plus, the popular representation of the Senate favors the Democrats here, to the degree you want to toss that in. 

But, even if you are appealing to Hamilton's op-eds, he didn't differentiate judges here. And, even there, there is a recent precedent.  The argument is purely academic and normative.  The Constitution has no clear barrier, even on the level of not wanting a biased presider during an impeachment.  Anyway, I don't think it will matter in the end -- at least ONE Republican is likely to vote for the nominee along with 50 Democrats. 

SCOTUSBlog has a good summary of Breyer's career, including reactions from liberals regarding his latest book. At one point, Amy Howe references this commentary, which I generally support too (including the suggestion even by Breyer's own lights, it would be a good time to retire).  

Brianne Gorod, a former Breyer clerk, also is quoted on Twitter as noting that he "believes the courts should be attuned to the real-world context in which they are acting, as well as the consequences that will follow from their decisions."  Breyer is cited in general as a pragmatist, willing to compromise to get the most he can, the most practical result. 

This is a sensible pragmatic path, but it also should be factored in when making retirement choices.  And, regarding concerns about looking "too political," his approach already doesn't pretend they are just acting as separate independent entities without overlap.  Breyer's own writings suggests this is something of a gut check balancing test.  What "looks bad" matters.  It still does not mean reality should not enter into the equation.

If not now, when? A presidential election year is dubious.  So the next logical point is 2023, but that is just tempting fate.  He's 83.  It's sensible to retire now, even without (and you really should) noting the reality of how Republican control can result in no one replacing him.  The current Senate will provide for a smooth nomination, the first time in four tries. We have been down the opposite road too many times.  

Breyer can then enjoy his retirement and promote civics.  Meanwhile, the road to his replacement can be used to address not only his replacement, but the courts in general.  The Supreme Court is broken and the federal courts overall probably needs fixing (more lower court judges, for one).  This is a prime chance to discuss the matter, especially with the Presidential Supreme Court Commission out of the way. 

A third liberal vote is obviously not as important as a fifth and sixth conservative vote.  Probably the most important thing is the appointment of the first black woman justice.  A new liberal justice arising from a new generation will be important too.  The replacement will help prevent an eight person, 6-2, Court.  One of the recent cases, the Medicare/Medicaid vaccine case, could have went 4-4 in that case.  That matters.

But, no, for the short term, a one person shift in the liberal wing won't matter too much.  Justice Stevens argued (quoting Justice White as I recall) every new justice changes the Court somewhat.  As they might.  Breyer's vote mattered more with a 5-4 Court; a few cases will arise when even here the new justice might be a wild card.  It can matter more down the road.

[ETA: Breyer's positions on certain issues  highlight there is some possibility that some newcomer can have a difference voice, putting aside that let's say getting a former public defender there might actually bring Sotomayor a criminal justice defender from someone who wasn't a former prosecutor.  This might not matter much in the short term, but even one voice can matter somewhat.]

Still, including to give Biden/Harris a win, the nomination still matters. Breyer being on the Court (so nice to be in person to watch a conservative shift on multiple issues) rankles some while also stressing out.  A younger black woman justice among other things will be a net benefit.  If nothing else, it all matters to some degree.  Let's get moving!

==

Meanwhile, there is an execution scheduled for tomorrow.  

Donald Grant alleges mental issues and challenges the safety of the lethal injection protocol (that ship has left to dock or whatever though his petition claims there is evidence from the last one to prove it).   

With Gorsuch (it's Oklahoma and that's his former circuit) not taking part, SCOTUS rejected a stay request.  A bit ahead of the curve as these things go.  No recorded dissents, which to my mind means no dissents. 

I thank Rachel ...

 

Nickolodean is having an online contest connected to its Friends block and I probably can stop now. The actual "Joey" had to cut corners there.

Supreme Court: Order/Opinion Day

The Good Fight: I re-read Danielle Steel's book, which involves a woman who lives thru about thirty years of history from World War II to the early years of the Nixon Administration.  The book was pretty good, if not too dramatically deep (sort of her style), though after a while it was like "okay ... what ELSE historically is these people going to encounter?!" 

It might be included in the future among the history books on the Books in a Flash website.  The website covers non-fiction, but the history aspects of this book is a sensible fit, including a twist of the normal format where I featured a sort of "for further reading" list covering the many events covered in the book.  

The connection here is that not only did she become a civil rights lawyer, but her grandfather became a (fictional) Supreme Court justice while her dad became a district court judge (appointed by Ike). Her grandfather is fictional but is a sorta more liberal fill-in of one of two actual replacements of liberal justices' Rutledge and Murphy. No opinions of Justice McKenzie though.

Orders:  At times, the Monday Order List is not too exciting, grants dropped on Friday.  But, this time, before their mid-winter recess, the orders did not include various bookkeeping matters.  

The cases involved important matters involving the administrative state, but the big ideological news is taking two cases challenging affirmative action in education. And, one was particularly "I want it now!" because the appellate level was skipped.  I understand the YOLO energy, but figure it might be more of the Roberts long game, if at a somewhat quicker speed.  

This won't be something to be "reassured" about, sure thing, though life is often a matter of finding some limited chances where you can.  Some simply will find that naive, but pure evil is hard to find.  This might sound precious to some people though many in need (and I'll tell you, I'm sometimes in need too, even if I'm a white male) will agree.

Opinions: We have (after a typo in her last no one cares opinion was fixed) another no one cares Sotomayor opinion about ERISA.  Barrett didn't take part; no separate opinions and this one is under ten pages long.  Let's see if she has a statement regarding a capital case later in the week. And, what else happens.

NFL Divisonal Round: Kickers Shine

The Titans were lucky to be a first seed and didn't really show up. Bengals win a low scoring game via their kicker, including off a turnover with twenty seconds left in the game. Packs lose 13-10 in a frigid snow game, the last ten coming after a blocked punt/score (after a failed 4th Down by SF); then, a stop, and a field goal drive to end the game on a long FG.

Titans are boring and everyone hates Rodgers because of his anti-vax shit. So what about the other two? Rams really tried to blow it (blew a 27-3 lead), but had enough time at the end for a game winning FG. Pretty Boy out. KC won with a kick tying it at the buzzer (after Bills went ahead with 13 seconds left) and KC then winning with a TD. Totally ridiculous.

I Too Remain Pissed

Someone who in the past compared delays of abortion rights in Texas to litigation delays of some newspaper being interfered from covering something cited the latest in the SB8 case. The law professor grants the law clearly conflicts with current precedent and the Fifth Circuit is full of it.   

Probably by mistake, he left comments open, and someone responded:

If indeed the inferior federal court is getting out in front of SCOTUS (which is unclear), it is reminiscent of the same-sex marriage issue, where lower federal courts were overturning state laws and SCOTUS precedent in anticipation of the 5-4 Obergefell opinion, which Sotomayor joined. That is small consolation to those whose legal universe consists wholly of Roe v. Wade uber alles.

The reply didn't completely answer the claim:

Except: 1) No lower court screwed around with procedure in those cases; 2) those lower courts decided the substantive legal issue. If the Fifth Circuit had declared the law valid in anticipation of overturning Roe, the analogy works. Not this.

This is true, but incomplete.  The lack of good faith is suggested by the "above all else" (German) potshot.  The "SCOTUS precedent" here was Baker v. Nelson, which the person granted (and then comments were closed).  The person didn't (not writing in good faith, I'd argue) answer any of the rest of what the other replies said.  So it goes.

I covered this issue in the past when the same sex marriage litigation was ongoing in various posts.  Still, it's useful to repeat it, since these things clearly never really go away, do they?  Yes, the Supreme Court ultimately bluntly "overruled" Baker v. Nelson.  But, this doesn't change that the ruling was simply stating that the lower court opinion did not raise a substantial federal question.  That was the whole opinion.

The lower courts did not "overrule" (not having the power) Baker v. Nelson.  The courts argued that the opinion was limited and intervening events clarified that it did not block protecting same sex marriage. 

As I noted there, e.g., the state court did not address sexual orientation discrimination.  Lots of intervening Supreme Court opinions, not bare statements which don't say why the case wasn't worthy of more (plus at the time, SCOTUS was required to decide the case somehow) at the very least made it a substantial federal question.  As RBG noted in one of the oral arguments, even 1970s sex discrimination cases changed the law there.

Justice Kennedy's opinion clearly buried Baker v. Nelson, no matter what limited reach it had.  This did not make the lower courts in the same position of some lower court that blatantly ignored Roe v. Wade or acted in expectation it would be overruled.  Planned Parenthood v. Casey is still on the books; Roberts who provided the fifth vote in the latest substantive abortion dispute said as much.  

I think the reply basic skips over the fact that there is an argument that the lower court implicitly acted assuming Roe was going to be overruled (you know, that is partly why Sotomayor is "pissed," to cited the somewhat patronizing sounding title of the piece). So, the comparison is not necessarily wrong on that front.  

And, I think the rest is quite relevant.  A few lower court judges took a narrow view of their discretion given Baker v. Nelson. But, there was a lot more room there than for an honest lower court judge here.  A good faith reply not sneering at the apparent group (happy 49th) "Roe and that's it" would perhaps understand that.  Or, say more.

I have the "Someone Is Wrong On the Internet" comic near my computer.  But, sometimes error is a useful way to address certain things.  Plus, it is pretty timely.  I understand the desire not to have to deal with sometimes tiresome comments.  OTOH, the argument was germane and worthy of a full refutation.  

Guess he will be more careful about leaving comments open, most of the people there (as seems to be a trend at where I go) closing them.  When open, I will continue to type.

How To Be A Girl

A mom started a blog and podcast about her experiences being the mom of a trans child. She now has a book out. She remains anonymous with her (now teenage) child's face not shown. I read a few books on the general subject and this is a good if somewhat standard (basic liberal, the child is shown as strong and vibrant from an early age if with a few hiccups where she's scared and has issues) point of view. IOW, it's basically comfort food on some level.

I was a bit taken back by the idea that c. 2012 it was so novel to have a trans child since the concept surely wasn't to me by then. But, she didn't emphasize that too much and there already being a support group in place and some protections regarding bathrooms and such then (Seattle) at any rate suggests the fact. Plus, it wasn't THAT standard.

Anyway, we have moved pretty far since then at any rate. Ways to go. The book does underline how hard it must be to be a parent. I surely wouldn't want to deal with me and I'm not an only child. "M" sounds like a great kid and maybe one day we will hear more from her. Maybe, she will be a "big sister" (or is?) to a young trans girl.

Supreme Court Watch

Stupid Asshole Alert: The Supreme Court has a conference on Friday and then goes on a sort of mid-winter break (next conference is 2/18; next arguments the week after), so the whole Gorsuch is not wearing a mask thing was due to at least taper off some. But, then during the morning oral arguments, this was reported:

“Reporting that Justice Sotomayor asked Justice Gorsuch to wear a mask surprised us. It is false. While we may sometimes disagree about the law, we are warm colleagues and friends,” said a joint statement from Sotomayor, one of the court’s most liberal members, and Gorsuch, one of its most conservative.

This is the sort of thing someone says when they feel miffed (long term SCOTUS reporter Nina Totenberg dropped a behind the scenes/justices in disarray story) even though it is not productive. But, darn, they were wronged, and they just want to clarify it. It is a very Gorsuch thing to do. 

The "warm" business is just trying too hard.  Also, it just calls attention to the whole thing.  Finally, the reporting was that [to exactly quote] the chief justice "in some form asked the other justices to mask up."  Which the usual suspects (including NPR) immediately pointed out.  It comes off as something Sotomayor did to shut Gorsuch up, knowing he was just digging the hole further.  Like she laughed at him behind his back.

(Dahlia Lithwick, adding some more details, suggests she actually was saying that honestly.  Okay.  Let me just note that early on there was reporting even his fellow conservatives thought Gorsuch was an ass. His alleged reasoning here wouldn't give me the feels.  You aren't required to have sweet warm friendships here.  Just be respectful colleagues.)  

THEN, Chief Justice (ah to be a fly on the wall) releases an official (these things usually on the record) statement that  he "did not request Justice Gorsuch or any other justice to wear a mask on the bench."  So, NPR still stands by the reporting, noting that the reporting was "in some form" (suitable vague).  

Then, there is the concern about the exact wording, but I think that is cutting things a bit thin.  If the justices (or Gorsuch) are gong to harp on "ask," they are being just too darn literal and strictly so at that.  

On a basic level, they don't seem to be challenging the basics?  How could they?  Sotomayor isn't there, the others are wearing masks, and so forth.  It would be pretty bad if Roberts, as the presiding judge here, didn't say at all that he thought it would be nice if they wore masks. It was the simply nice thing to do.  Gorsuch could have just wore a damn mask.

The original article compared the current Court to the FDR/Truman Court where there were strong hatreds behind the scenes.  When it comes to Gorsuch, I'm getting the idea that might be true now, even if the article used the history there to contrast how conservatives are more united now. 

Trump Documents: In a short unsigned order, the Supreme Court got around (if a lot quicker than the last time) to rejecting Trump's request to block release of documents to the 1/6 Committee.  The comment about how the underlining question was "unprecedented" seems wrong, but maybe that was just to assure near (Thomas dissented without opinion) unanimity.  There is also the usual possibility that a quickly handed down per curiam will be less careful than an opinion the result of a full process.  

[The "8-1" talk is technically wrong since we only know five people agree to the result with only Kavanaugh and Thomas on the record, but I'll stick with the eight talk.  Silence assumes consent.  

Thomas' wife was the subject of a "we know this, but can we have a summary version" article, mixed in with some discussion about recusal debates.  Only thing we know for sure is that both of them surely are great friends of Sotomayor.]

Kavanaugh (wrongly as noted there too) flagged the lower court opinion assuming a current President alone can block a past president's request to block material here.  The well written lower court opinion more clearly (without making it absolute) was loathe to second guess a combo here:

On this record, a rare and formidable alignment of factors supports the disclosure of the documents at issue. President Biden has made the considered determination that an assertion of executive privilege is not in the best interests of the United States given the January 6th Committee’s compelling need to investigate and remediate an unprecedented and violent attack on Congress itself. Congress has established that the information sought is vital to its legislative interests and the protection of the Capitol and its grounds. And the Political Branches are engaged in an ongoing process of negotiation and accommodation over the document requests.

And, on top of that combined effort, the arguments provided by Trump are weak, especially given the clear need.  Anyway, the result here that (some kneejerk comments by some aside) this Court isn't going to just be a sucker for any conservative argument.  There are limits.  

The bottom line here is also that basically there is an assumption that there is now a clear official SCOTUS acceptance of the legitimate nature of the 1/6 Committee. Now, since even the lower court talked about ongoing negotiations, that only takes us so far.  There can be new "this goes too far" arguments.  

Still, it's an important moment and is what should have happened in January 2020, when in the midst of the impeachment [#1] process the House asked SCOTUS to speak along the Trump financial case, but SCOTUS simply rejected them without comment.  Which was bloody wrong.

Opinion Day: We had another case of an opinion day being a nothingburger.  I'm not sure the need to have one for a single case. Anyways, with Thomas dissenting on jurisdiction (arguing the issue was not properly brought), Sotomayor wrote a 8-1 criminal justice opinion involving the Confrontation Clause.

By  chance, it involves a horrible crime out of the Bronx, but don't think that is the reason she got the opinion.  The fact Alito (along with Kavanaugh, just highlighting a point; concurring with the opinion itself all the same) supporting the defendant suggests it was a rather narrow matter. 

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Later on, Sotomayor also penned a dissent for the liberals when (as expected) the Supreme Court did not grant a request to send the Texas abortion case [Texas banning most abortions is now out of the news basically]  back to the district court.  This might have had limited effect, but it still should have done it.  

Breyer wrote separately basically to say "come on."  We say ... come on retire (some rumors again arose recently that he is thinking of doing so soon).  

Conference Day: Monday has been flagged to be an opinion day though that technically means they "may" release one.  I'm not aware of a time where they changed their mind, but that is how it is phrased on the SCOTUS website.  We did have the Texas abortion opinion in December, but lately that has been basically nothingburgers.  Still, interesting cases left from the October sitting, so maybe something of that nature will drop.  

They also granted one case, for April argument, regarding "Whether a state has authority to prosecute non-Indians who commit crimes against Indians in Indian country."  McGirt v. Oklahoma, which relied on RBG's vote, has caused much drama in the minds of the Oklahoma Justice Department apparently.  We will see how the Barrett Court handles the matter; they resisted a request to consider whether to overrule.  

The bottom line issue involves Native control now that the Supreme Court held that tribal rights were not relinquished.  Congress could clearly settle the matter, which to me is best as compared to relying on somewhat hazy determinations of what happened a hundred years ago.  Somewhat doubtful.

Roe Turns 49

Roe v. Wade, which in a broader sense is a general right to choose an abortion as recognized by the Supreme Court (it was watered down in Planned Parenthood v. Casey and in effect more so later on) was handed down 1/22/73. Sarah Weddington, the woman who argued it twice, recently died. Roe's chances for 50 look to many as fairly grim.

As we wait for another shoe to drop, the anniversary can be a time to think about all such matters [labels]. And, remember and address all that is necessary and proper to apply them the right way. I think that includes but is surely not limited to court protected rights here.

Apparently, Sotomayor's clerks are so upset that they leaked her draft opinion in the upcoming Dobbs case. I hope it covers all the bases.

Voting Rights: We Need More Democratic Senators

Porn stars might believe in God, but God is easier to believe in than Manchin/Sinema seeing reason. To be clear, as President Biden said yesterday during a long press conference, Democrats and Biden (helped by Senate control) got a lot done.

Voting and elections remain key. TPM has a good summary of the long and tiresome effort to get the duo to see reason. How Republicans have failed to support anything here. How a talking filibuster, at the very least for THIS, is not some radical move. And so on.

After a lot of talk, we got to the same result as months ago. Two things, for those who want something. (1) 48 senators did sign on (2) We are done with the apparently neverending farce, always hoping, ending with Republicans patting Sinema (wearing red!) on the back and shaking her hand. Let's deal with BBB too, including finding what can pass. Dragging that on too is tiresome and counterproductive probably at this point.

Supreme Court Watch: Order Day

December had some action, but the Supreme Court is fully back in the groove. We have orders, more cases likely to be scheduled for oral argument this term, and more Thursday opinion days scheduled later in the month.

Friday Grants: Five cases were taken for argument via an order dropped Friday afternoon. This is a common practice -- the judges have a Friday conference, some order is dropped that afternoon, and then a general order list doing a bunch of mundane things (usually dominated by refusals and some mundane things, including perhaps asking the solicitor general's opinion on a case or things like waiving some procedure usually required for litigants) is dropped Monday.  Or, with a holiday, Tuesday.

The cases taken were not really a surprise, with four of them on the top of the list provided by the SCOTUSBlog re-list watch.   Some criminal justice types are wary about the cases taken in that department, given the leanings of this Court.  One regards a dispute about what procedural avenue is allowable to challenge methods of execution (a path repeatedly narrowed by the Roberts Courts).  Another might threaten Miranda protections.

An anti-death penalty advocate/scholar wrote about the request of some to be executed by firing squad.  The article highlights this as a "violent, brutal, and frightening way to die," though these days, some experts argue that it is better than the error prone lethal injection method.  And, the logic of recent jurisprudence is that when you challenge such methods, you need to point to a possible alternative.  Some try nitrogen gas, though since that was never used, that can be deemed unavailable.  So, firing squad.  

The first link also summarizes a fifth grant, which involves a conservative religious liberty FOX News special about a coach praying on a football field.  As summarized in the first link, more so in briefs and opinions below, a basic problem seems to be that the question presented is not actually the reason why he ran into trouble below.  Some truly private right to pray is not at dispute here.  Comes off as a bit of a troll grant which the original conservative four took now since Barrett is here. 

Order List:  Nothing too notable except for Gorsuch dissenting from a denial in a case involving a tax exemption for ministerial housing.  The case was re-listed (on conference discuss list) repeatedly, so one or more judges found it notable. 

Gorsuch is in high dudgeon about "bureaucrats" making religious decisions and all, but (1) it's a tax deduction, so the religion is asking said bureaucrats for a privilege (2) there is likely a reason the other religious liberty friendly judges didn't go along with him. So, figure it isn't quite as simple as he makes it out to be. 

(The vaccine cases also had some links in them, so the online sources page has been updated.)

 ==

I covered Gorsuch not wearing a mask at oral argument and how that matters regarding the vaccine cases last time.  The overall matter was addressed in a Slate commentary  as ultimately a form of "judicial immunity."  Special rules seem to apply to the Supreme Court and they do not have to really say why that is justified.  

I would note that the general rule about wearing masks in the Court building (looking at the linked procedure) makes an exception for when advocates are "presenting argument."  I guess that would also apply to the judges at that point.  We are left to assume what Gorsuch does in other parts of the building.  But, unlike talking for thirty or more minutes, the others show that you can easily not wear a mask for questions.  

[It is quite possible, professors and others do it, to talk with a mask on all the time.  When I was a poll worker, dealing with incoming voters all day, I always wore one. I had to talk to each voter and all.] 

Chief Justice Roberts' end of the year report argues that judicial independence is key and that we can trust them.  Oh?  It would be helpful if they did basic matters of open government here, including posting press releases for the general public informing us about Sotomayor (and once Breyer) not being involved.  Something simple like that.  

But, basic civil behavior (as noted in the article, Gorsuch wrote a damn book sanctimoniously promoting that) would include wearing a mask next to two senior citizens, one with diabetes.  If you can't handle that, why should we trust you?  The Court by their actions are just taunting us, knowing they have little to worry about given who runs things now.  At some point, maybe they should be pushed.  

I also saw this bit in the commentary: 

For decades, court reformers—and most recently President Joe Biden’s commission on court reform—have noted that the court’s financial and ethical rules are purely advisory, that nobody needs to follow them and that the justices will not enforce them against one another.

This points to one value of the commission, which many (including some liberals I respect) basically treat as useless (Prof. Litman of Strict Scrutiny sneered at its "report" as the only response from Biden and the Democrats as if that is all that is going on) without trying to see that it can have some value. The commission, with its range of membership, offers a sort of official summary of the situation which can be cited as an agreed upon starting point.  

The commission's marching orders was not to set forth a series of recommendations, no matter how much some rather that be the case. It was to examine the situation; which it did.  The report has a few basic things for which there is general agreement about (I have not read the thing, I grant, but that seems to be the idea from reading various commentary).  

But, there is some value to put things on the table, an agreed upon starting point.  The establishment of commissions to study a matter is a common thing.  Sometimes, suggestions are provided.  So, we have that step done. Why not try to get the benefit of it as much as possible?  And, sure, push for more, as the Supreme Court keeps on poking the bear.  

Wild Card Weekend: Not EVERY Game Was A Blowout

We had the first "super" Wild Card Weekend with extra teams and only one team having a bye. In each case, the extra teams did poorly, so the teams sorta had a bye anyways. Buffalo also crushed the Pats. The Monday Night Game was a bust too, with Arizona being crushed. The only upset was Dallas, with SF trying to help blow it, but not quite doing so.

Genghis Khan and the Making of the Modern World

This book will be discussed in much more detail eventually on the book review website, but see this review for an overview now. Not being an expert, I will be agnostic about the historical criticism there. As with my analysis of court matters here, I will respect my limits, while noting that on some subjects, I do have more knowledge than the average civilian. (I do have a BA in History and apparently retained something from it, after all.)

I had not read much about the subject matter and found the book overall well written and interesting. A bit too pro-Mongols and at a few points the historical details were a bit hazy (including stuff about India; and a major defeat was to me deserved more detail). But, especially as an opener, it is a good way to look at the topic, including with new eyes.

As an aside, this year is not starting off that well in various respects. Other than it having three twos, not sure one expects much more out of it. Still, hopefully, I will get into a 2022 gear and something useful will be made out of it. 2021 was in various ways a holding action though I think as a nation we got some things accomplished, especially basic sanity political-control wise. After yesterday, for now, let us still recognize we have that.

Well, the Day STARTED Well ...

The announcement of indictments of Oath Keepers for sedition (big deal) connected to 1/6 was a bit of good news. We even had the "Garland is a loser" brigade admitting a bit they might (eventually at least) have to eat some crow. What is the vegan alternative to crow? Is there a plant based version?

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There was an announcement (now a thing) that the Supreme Court would drop one or more opinions. So, this brought expecations of the vaccine cases or maybe some other lingering one like that now mostly forgotten fast track death penalty religious liberty issue. Instead, we had this 8-1 job:

In an 8-1 decision in Babcock v. Kijakazi, the court rejected the arguments of David Babcock, who worked as a dual-status technician from 1975 to 2009. In that role, he worked as a test pilot and pilot instructor and also served in the National Guard.

The question concerned whether his "pension fell under an exception for pension payments that are “based wholly on service as a member of a uniformed service.” He lost. Barrett wrote a short statutory interpretation opinion. Gorsuch dissented even more briefly, tossing in some smarmy sounding (admittedly I'm expanding a bit there) comments about how he was somewhat embarrassed about being a solitary dissenter. 

Oh well.  So, nothing to stress out about ...

funny boy.  Mid-afternoon, again without them actually showing up, the vaccine cases dropped.  The result was fairly expected except for maybe the exact vote totals. It just is a question why they didn't just do it in the morning.  Is there some rhyme or reason to this?  It is not a matter of not being able to finish.  This was not just something (like a death penalty deal) they just was working on the day before.  It seems intentional. 

The broader vaccine or mask/testing mandate for large employers was blocked [note this was a request for a stay, so in theory had a high test for success]  6-3, with a rare joint dissent (see, e.g., the PPACA Cases), if one that sounds Kagan-esque in tone.  The majority (in both cases) was per curiam, though I believe we can assume all six of the conservatives joined the one, and the four dissenters in the other are on record.  

Suffice to say the reasoning was stupid.  And, offensive in some fashion, such as one opinion (not the main one) including referencing vaccines as some major medical procedure, with Barrett (who blithely spoke about baby drop boxes as a solution to anti-abortion laws) joining that frame. Gorsuch not wearing a mask was connected to his votes here, quite well. 

The opinion is darn short -- it's like ten pages long (three conservatives joined a "major questions" type of concurrence that would have gone further to put a questioning eye on administrative law), and reference things like the novelty of the matter (wonder what's novel that warrants it) and how vaccines affect more than workplaces (the mask alternative is more limited and so what -- if something necessary for work place safety has out of work effects, it still is necessary for work place safety).   

The joint dissent (though Breyer's name is cited first by seniority, which might confuse) points out how the statutory language reasonably is applied and the balance of equities doesn't warrant a stay.  But, 6>3, even if the three are corruptly there.  

The liberals also basically have to triage, that is, pick their spots and find where they can find two votes for sanity. That's the other more limited regulation involving Medicare/Medicaid funds in health centers.  Nonetheless, even there, four conservatives (including Barrett) dissented.  So, we have the "when can we find Roberts and Kavanaugh" (or some other person as the case might warrant, Gorsuch now and then being libertarian or finding statutory language warrants something etc.).  

The first opinion leaves open, in theory, more limited requirements (such as for very crowded work places).  This is where we are now -- the "mother, may I" approach where five might allow for something (though the critics will logically not emphasize that), and Biden et. al. has to find room to act where they can.  Still, talk about how "disappointed" they were about the decision comes off as lame.  I get it though.  Nonetheless, long term, this sort of opinion should be cited to push for change.  

ETA: One thing to toss in here is that per curiams often don't have headnotes. Anyway, Strict Scrutiny Podcast had a somewhat disappointing "emergency podcast" (no link for you!) on the result. 

They spent so much time (though was there some sort of time limit?) on the first, they spent less than five minutes on the second. They didn't even talk about the two dissents, one by their favorite hate  target, Justice Alito.   

One thing highlighted by the podcast was how the OSHA opinion started by [dubiously] referencing a "vaccine mandate" and only later noting the testing/mask alternative. This to the trio was a slight of hand on the majority's hand.  And, note how this slants their reasoning. Testing/masks can be limited to the work place [the universal effect of vaccines is something they underline though if something is occupational, it very well might also have effects after you leave]. 

They suggested Roberts or maybe Kavanaugh (Roberts is good for the compromise/ends result sort of deal; Kavanaugh likes to toss in comments about how reasonable he is being, here perhaps to reassure conservatives) wrote the OSHA ruling.  I'm not sure if he does that as often.

Who wrote this one? After all, some see a disconnect between the two opinions, but that might just point to their ends result/pragmatic [an aspect of judging] sentiments.  There is a footnote, so maybe that counts out Breyer, who never uses them.  There is a bit of wordplay in the note: "We see no reason to let the infusion-clinic tail wag the hospital dog, especially because the rule has an express severability provision."

The opinion seems to me to carefully address the statute and procedural details.  Also, the opinion doesn't seem to even mention the other one.  It would be logical if it did, to underline the difference between the two.  The OSHA opinion also uses italics for argument in a way the other does not.

It's possible to do so, though that doesn't mean you will accept the differences are strong enough for a split ruling.  But, neither opinion refers to the other. I think that suggests different authorship. I think there is a case to be made that Kagan wrote it.  The podcast didn't go all the way there, but did note that the opinion seems to follow her "you can't kill your patient" comment at oral argument.  And, a form of this shows up.  

Finally, there is a bit at the end of the OSHA opinion where it says it is not their job to balance equities, but to determine if the regulation was properly established.  The other opinion factored in the situation to help determine if the regulation was arbitrary and capricious.  As noted by the joint dissent, this is what the law warrants when deciding to grant a stay. 

Anyway, after starting off on an okay foot (minus the "vaccine mandate" bit), the OSHA opinion shifts gears about halfway in.  As a basic matter of good opinion writing, the other opinion is better.  The clear language, citation of the relevant materials to build the argument, and ending on the right note (agency has limited power, but given the authority here) all did a good job of it.  

No matter who wrote the darn thing. 

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While we were processing this, there was the ongoing push to put voting rights front and center in the Senate.  Sen. Sinema, not that this actually surprises any more than the Court rulings, said "NAH!" with some ... well asinine is one way to put it ... approach where she supports the legislation, but strongly opposes changing the filibuster.  Which means she doesn't actually support the legislation.  That's the net reality realistically.

This was the big "fuck you" moment, but her bullshit about the filibuster and comity was previewed by Senator Manchin (already on notice for BBB).  His talking points about the filibuster as some ancient constitutional principle continued to be parroted by the media (hey, we are just stating things), without enough pushing back that they were based on bullshit. 

The net result here is that Biden and the Democrats look like big fat losers, even if you provide a list of things they managed to do with all the burdens in place.  The Democrats inability to deal with these two assholes, who spout bullshit to enable the insurrection party in their ever continuing efforts to suppress the vote and throw doubts on elections (at least when the other party wins), is aggravating. If Democrats lose in November, people will justify and say "I told you so" as if the Dems as a whole are to blame.

It's simply the work of fucking morons given the state of affairs, as again, we have major prosecutions reminding us of what the alternative might be.  What the hell is wrong with you?  It also is just tiresome to draw this damn thing out.  Some Democratic senator got COVID (proxy voting has to be a thing in the Senate, people), which delays things a bit, but I saw something where Tuesday (after the holiday) will be the vote.

Fine.  After the President of the United States strongly voiced support of voting rights, the House voted on it, a majority of the Senate claims at least to strongly support it, and we have a holiday to honor a civil rights icon who in part lead the issue to promote voting rights, we can have a procedural vote where the Republicans and two assholes (maybe Schumer will ultimately go along for procedural reasons) block it.  

I am not sure what the next step here is.  What is 2022 going to be all about?  I guess the next logical thing is to yet again try to find some method (people still saying there might be) to get Manchin to support some form of the big reconciliation package.  Time has a tendency to go by.  We are already half-way into the first month of the new year.  Before you know it, it will be the heat of the 2022 election cycle.

Will we have the same old laws in place, with a packed Supreme Court and anti-voting rights laws helping to pollute the results?  Meanwhile, I assume we should watch and see what else we find out about the 1/6 and related Trump lawsuits, including out of Georgia.  The Supreme Court -- showing less speed of course than on the vaccine cases -- is examining another Trump running out the clock lawsuit connected to the 1/6 Commission.

Raffensperger Tries To Show He Is Okay to Anti-Voters

The big news for some this week was Georgia beating Alabama for the national football championship. January is now Georgia's month. Last year, they elected two Democrats in a pair of run-offs, giving the Democrats control of the Senate. A key aid to Biden as well given the power of the Senate to potentially block nominations alone.

Secretary of State Brad Raffensperger came out as a hero as well when he strongly resisted pressure from Trump to find some votes and so on. This, of course, made him a bad guy for many Trump loyalists.  

As the Democrats go the to the next step toward trying to pass voting rights legislation, one prime target is Georgia. Which passed anti-voting legislation, which in part is intended to rein in people like Raffensperger and the ongoing investigation of Trump trying to pressure him.  So, he's trying to find a middle path, yes?

I saw something among the updates at Talking Points Memo yesterday, where Raffensperger tried to show his bona fides via  three step plan (other than general ridicule of the Democrats), using standard talking points.  

First, you have the collection of votes by others, such as to help isolated rural voters who have a hard time getting to the polls and even might live where postal service is sketchy.  This is attacked as "ballot harvesting."  

The practice generally is regulated in various ways, but there is always some call for more, which could particularly problematic during the Big V pandemic (e.g., some strong rule regarding notarized witnesses or something).   Basically, it's fine on some level to regulate; the problem is when you demonize and totally ban something that is helpful to various people. 

Second, he went with the tried and true voting identification thing. Voting id for in person voting (as compared to registration) is is another troll device, especially when it requires special types of picture identification. If you simply require something like a utility bill or something, it really can be a mild requirement.  It also is basically pointless.  

Still, if you include a mild voting id requirement as part of a wider voting rights package, it need not be a poison pill.  You should encourage and promote picture ids -- they are useful to have.  You should provide an extended time to roll things out.  Have exceptions and affidavit options for special cases. And so on.  Again, we are talking Republican here. I realize there is going to be some imperfections here.  It's a scale thing.  

The last thing was promotion of a state and federal amendment to block non-citizens from voting.  As a general matter, I'm not going to argue too much about non-citizen voting.  Personally, I am okay with it, especially with some restrictions.  Ditto there service on juries or something.  But, voting is a logical part of citizenship, and it is not some sort of travesty to think it of that way.  It is not the same as those who already served their time having the right to vote.  More like the convicted in prison.

What really bothers me here is the idea we should amend the fucking Constitution (reminded me of when people wanted to do it to "defend" marriage against the gays) to stop it.  Like there is some glaring problem.  I'm sure -- like after Hawaii looked like they might protect same sex marriage -- New York City (Mayor Eric Adams decided he didn't have to worry about it, after wavering, so no veto) passed a non-citizen voting law for local offices.  

We should amend the U.S. Constitution because a few localities allowing non-citizens to vote is so problematic?  We need to send a message by putting it in dark black text, so to speak, that only citizens should have the right to vote?  For those who care, historically, many places in the past allowed non-citizens the right to vote.  And, the basic thing that will happen will be a few places will allow it, especially if there is a limited right to vote for special elections such as school elections.  

There is no big possibility that Georgia will suddenly pass a law allowing non-citizens to vote.  If they did, the horror, I know.  Likewise, if it allowed local option, such as such suburb of Atlanta allowing it in school elections. Who cares?  Raffensperger is basically trolling here, if in a somewhat less offensive way than others.  So, the state constitution thing is only somewhat less bad.

But, the overall message is still poisonous.  A distrust of non-citizens, of "them," so much that you need extra protections against them. You are going to have unnecessary message type laws. It's part of the deal.  Sometimes, however, the message (think DOMA) is bad and helps add oxygen to worse things.  That is the nature of all of these things.

Meanwhile, we are looking at how the Senate is doing on voting. 

ETA: On that front, there is the usual tiresome arguments/warnings against/about at least a partial change of the filibuster.  The problem there is twofold: (1) people thought these things through and realize net it won't be worse (2) on principle and overall practice, the current policy is far from ideal.  

As noted by one person on Twitter: "A gridlocked government promotes extremism and performative politics. Since you can't do anything to address the major problems of our time, you end up with a Congress that just posts all day."  Meanwhile, workarounds have been done to pass stuff, including reconciliation, and judges were dealt with separately.  

And, it is a guesstimate (yeah, I see you smarty-pants, who cited Trump as a possibility pretty early), but a supposed 2025 trifecta is likely to include an impatient raw conservative component that will want certain policy things done. Filibusters by a supposed 54/46 (R) Senate or something stopping them much is dubious.  

Of course, we can stop that from happening (voting rights and judicial reform can help) at least in some form, including a second presidential term.  This can also involve passage core legislation now of some popularity (see ACA), which can have some degree of staying power.

Again, let's see how that goes.

SCOTUS Watch: Order List (and Bit More)

After a brief order on Friday, I thought maybe today's Order List would be particularly boring, but not quite. It wasn't like exciting, but it was over twenty pages. If mostly catching up end of year/new year refusals.

The U.S. Sentencing Commission is an independent agency in the judicial branch of government created by the Sentencing Reform Act of 1984. Congress enacted the SRA in response to widespread disparity in federal sentencing, ushering in a new era of federal sentencing through the creation of the Commission and the promulgation of federal sentencing guidelines.

Time for another Sotomayor statement (joined by Barrett this time), where she accepts a case should not be granted since that requires a higher test, but is concerned about something.  It has been years now (so bad, but starting to be accepted) of the Sentencing Commission not having a quorum.  Breyer loves sentencing guidelines. It's now a family business since the one person still there is his brother.  

One blog that is off my list that is about sentencing issue not surprisingly has flagged this and added it to his targeting (selectively) of Breyer. I'm fine with the criticism to some extent, but obviously at this point, it is a joint effort of avoidance. So, it is not just Breyer.  I was not along in saying this and him ignoring it is part of the reason I have stopped commenting at the blog. Also, a couple people "in the know" commented that the net effect has been limited. I don't know. But, yeah, that adds to things.  

Three cases were also taken for argument (doesn't seem like anything too notable) and you know the usual stuff.  Later, the multiple oral arguments scheduled this week began.  Sotomayor still took part remotely.  Will she just do this forever as a sort of self-isolation?  I can relate.  Mark Sherman, SCOTUS reporter for AP, notes Gorsuch alone is not wearing a mask during the Monday orals.  Troll.

And, it was announced that one or more opinions will be handed down on Thursday.  Meanwhile, we wait to see what they do with the emergency vaccine non-mandate cases, Trump issues, and more.  Sigh.  Meanwhile, some lower temperature orals. 

(Below was written after an earlier draft of this message; I updated and pushed the publication date up.)

After this was written, an miscellaneous order was dropped separately for whatever reason.  It was a request for stay in a pending [arbitration] case, which Roberts referred to the Court (suggesting it is of mild interest at least).  Rejected, as normal.  Likewise, as normal, no discussion, even to provide the basics.  

You can look up the docket number and the briefings can provide some detail about the case.  

... and on, Tuesday, Breyer (near Gorsuch) also is remote!  

This last part was added and originally it wasn't clear why he didn't take part.  Perhaps because they saw the comments or just as a matter of delay, it later was noted that the issue was that Breyer had a false positive.  The press office passed it along to reports, but it would have been better if they posted a message (like they did when Kavanaugh didn't take part).

So, he didn't take part as a matter of discretion. No clarification regarding Sotomayor.  Another bit of clarification I didn't add before was an edit of the transcript for one of last Friday's oral arguments. 

Gorsuch is now reported to have said "hundreds, thousands"  (comma/not "of") in reference to deaths by the flu each year.  The assumed larger number was used to ridicule him though his comments didn't need that to challenge his arguments.  

Meanwhile, conservatives have had a field day on some thing Sotomayor said.  My overall thought was it shows that justices should be careful trying to cite too much fact specific material when a more vague basic argument is enough and probably more appropriate (they are not fact findings).   As cited here, this also pops up in written opinions.  

Sotomayor could have correctly said that the number of children hospitalized with Covid-19 is at a record level, and she could have correctly said that the number has spiked in the last month as omicron has spread. But the claim that "over 100,000 children" are in "serious condition" is just false.

I cite here Daniel Dale here on specifics, since he is reliable (if in my view at times perhaps overcorrecting), and regularly reliably calling out conservatives (had a field day with Trump).  

As he in effect notes, her wider point is correct.  That to me is the bottom line here.  She had an overall argument and some single fact doesn't change it.  People are going to get specific things wrong from time to time.  The bigger picture is what we should be particularly concerned about, while it's fine to correct details. 

There is a lesson here -- be careful, both on the bench and off it.