SCOTUS Order Day

No opinion day scheduled so far, short week, and no drama order list. Doesn't mean nothing happened. Of course. And, that is without going into more leaks about the leak, this time about talk of going after clerks' cellphones.

A separate order, without comment, refused to shield three Republicans from being questioned under oath in lawsuits by the Biden administration and civil rights groups that claim new voting maps in Texas are racially discriminatory. There was also a stay (for now) regarding counting mail-in votes (usual target for "voter fraud" claims) for the Republian Pennsylvania primary. That was via Alito.

Then, ANOTHER important shadow docket case, this time a sensible hold of a lousy 5CA case, involving regulating social media. Five didn't say why they so held; Kagan didn't say why she opposed. Boo to both. The High Federalists used various bad arguments in dissent.

Memorial Day: All of the Fallen

Individual laws, like federal universal background checks and bans on assault rifles and high-capacity magazines, will most likely make a dent, but they cannot end gun violence. Invariably, more mass shootings will occur that none of those laws would have prevented.

Memorial Day is a holiday to "honor and recognition of all of our fallen service members." A quick search does not fully clarify the selection of the date, but it is notable that May was basically the end of the Civil War (various armies surrendering after Lee) and there is a connection to the opening of summer. There is also a mention that it was a sort of neutral date. 

The day, unlike Veteran's Day, is specifically about the "fallen" (quoting President Biden's message), not just veterans overall.  A full accounting can be applied to all those who died, not just soldiers. At the very least, modern war (as much as past wars, if not more so in "total war") it is appropriate to have a broad definition here.  A nurse, for instance, who died or a spy.  Of course, soldiers particularly are honored.  Which is fine in a fashion. But, I prefer an open-ended view too.

My opening quote expands things and admittedly I am sorta combining two things.  Nonetheless, "weapons of war" are involved in both. At some point as well, as sort of domestic "war," with its own fallen, has taken place. So, the op-ed, which argues the true breadth of the need to address is often not even admitted by those who support regulations. 

I resemble this remark, probably, since I have regularly spoken of "gun regulation."  The reality is recognized by various people.  They speak of Australia or New Zealand, which did not "regulate" alone, but simply banned certain guns and/or "bought back" hundreds of thousands of them.  A Vox piece also noted the problems of handguns, which D.C. v. Heller deems (with very limited factual argument) constitutional protected. 

You have to start somewhere, however, and that includes various categories of regulations with limited reach, but important rhetorical force. There is also the usual complaints that people are "politicizing" the issue, often from Republicans who regularly do so.  They just don't think it matters there since they are doing it the "right" way.  

I would also toss in the 2A itself makes this issue political. A "well-regulated" militia is going to be regulated by political means. Also, a basic concern was to avoid a national military to override local militia.  But, local militia was led by political actors (governors tended to lead the militia) and officers often were voted for by members. This was a political event.

I think appeals to the "Second Amendment" often amount to an under-examined label and slogan.  People on both sides do this.  So, those for more regulation cite the "militia" as if that will end matters.  But, the overall purpose of the militia includes a domestic police function that involves the guns in question. 

Anyways, there is a separate individual self-defense component, which is only more clearly present if you respect historical understandings of the Fourteenth Amendment. The basic idea of a free black having a firearm to protect themselves is pretty easily cited.  So, it falls to regulations, which is always the case.  Speech is regulated in a variety of ways.

But, I think the "Second Amendment" frame is somewhat useful. The exact language ("the people" is a equal protection mechanism, "well-regulated" supports regulations, there is a federalism aspect that encourages state and local discretion, etc.)  is helpful.  Like many constitutional provisions (down to use of "persons" over "property" for slaves), the nuances of the language provides insights.  They rarely are as clear-cut as the loudest supporters on all the sides tend to say, but insights all the same.  

So, on this day, let us remember.  A favorite reading is the Gettysburg Address.  I saw a Lincoln scholar on C-SPAN in a special segment promoting an event honoring the 100th anniversary of the Lincoln Monument, which took place this month too.  

It opened on May 30, 1922.

Rev. Joe: Arguments About God

I have a strong belief in free thought though am somewhat in disagreement with the "freedom from religion" foundation (though appreciate the free copies of their publication). Such organizations have some special concern to be truly freedom from religion. I'm not really concerned about religion as much as the right to be truly free to practice.  I'm a freethinker in that respect.

I wrote a piece on "Why We Believe in God" here.  On some level, each part of that is involved in answering the question.  The essay was not a complete attempt as much as "we" (basically people in this country) believe (what is this?) "in God."  I think "God" can mean many things and that shows up in my analysis.  I think it can be a form of poetry.

The recent program arising out of FFRF had a clip from one of leaders debating the existence of God.  He does this regular and as referenced in the link, a general summary:

I briefly sketched the cumulative case that belief in a god suffers from serious deficiencies: lack of coherent definition, lack of evidence, lack of good argument (many theistic arguments are merely “god-of-the-gaps” explanations), lack of moral and theological agreement among believers, lack of good response to the problem of evil, and the lack of reliability of so-called holy books.

 I heard him mention "six" basic problems in belief in God:

• lack of coherent definition
• lack of evidence
• lack of good argument [design etc.]
• lack of agreement 
• lack of a need 

That's five, but I think he might have ran out of time in his introduction.   The other argument might be positive arguments against a belief in God such as the problems with the problem of evil.  This reflects a response to a basic understanding of "God" as some independent entity. Maybe, more is said about more metaphorical references in the full video.

I don't think there is necessary some basic "need" before God can exist. And, there can be confusion on exactly what God entails.  Like the blind men feeling an elephant, the basic idea is that God is too big for any one mortal to obtain a full sense of God's full existence.  

Still, the concept does require some general agreement, or it's just somewhat confused.  And, the usual arguments posed, including by little children, about God (where did God come from? etc.) can be cited.  Like the argument for Christ's resurrection (I'm reading The Shoes of The Fisherman, which is pretty good, though it rambles too much), there are various arguments of "God" as is usually defined that are not sensible.

If God works, God is sort of metaphor of broader forces and qualities of man (goodness, hope, etc.)  for which humans use to provide meaning to their lives.  Ancients told of tales of gods and animals and so forth to explain the world.  Did they all really accept their view of turtles or whatever?  I doubt it.  They realized fables and myths taught a wider lesson.  They used a means that was approachable.  

[Here is a video of an interview the regular hosts of the program had with a freethinking sculptor.  They have some interesting interviews.]

I think many today realize religion is used in this way, including those who practice.  The more "liberal Christian" often sees it this way.  But, I think deep down many others do as well.  Some reject that approach and wish for a more literal sentiment.  One black minister told Rachel Held Evans that his flock would not accept the more symbolic approach of one speaker.  The suffering, death, and resurrection of Christ as a literal fact is key.

(I felt her last book, Inspired, was a very good different, personal take on the Bible.  Wholehearted Faith was also powerful in its own way, but I was concerned about how much "she" was in it as compared to the person who edited her notes.  She died tragically under 40. OTOH, this has a somewhat fitting place here given biblical books also are edited.)  

Rachel Held Evans in time was not as very sure of herself as she was in her earlier days.  She still gave it her all and notes that she chose to continue to live as if the Bible was correct.  This is often the life of many people of various faiths.  There is something in acting if God exists, that is, God as is the basic usual concept that "we' use when using that word.  

Stephen Colbert* said a few things that sounds something like this. He speaks of a belief, a need, to believe in basic Christian concepts. I question if he would find it overly useful to deeply examine the nuances of such "mysteries."  Playing "gotcha" about evil and all that will only get you so far.  These arguments against God have been here for quite some time.

And, people continue to believe or act as if they do.  

 ====

* Looking at the few hits I receive, I saw an old reference to an interview he had on his old show.  It concerns the problems of amicus briefs [!] and how the "facts" found in them can be unreliable.  

It still is worthwhile and I still would add she looks cute. If I'm allowed to say that. He had a lot of "thinking" guests on that show as compared to simply celebrities.  And, the interviews turned out to often be quite good, he being skillful in editing the whole thing so that it balances his character and the real life material.

SCOTUS Watch: June Here We Come

The Supreme Court on Thursday rejected a plea from Louisiana and nine other states to bar federal agencies from considering the social costs of greenhouse gases as part of their decision-making process. In a brief, unsigned order, the justices declined to reinstate a district-court ruling that had temporarily blocked the Biden administration from using the cost estimates. There were no dissents recorded from Thursday’s order.

There was a SCOTUS conference on Thursday, but so far, no more opinion days. There are thirty-three more cases pending, so it would make sense to have one next week. We are talking about half of the full rate of the whole term. This is an asinine amount of back-loading.  It is also a sign of how low the turnout is, even if you factor in (making it larger, to some degree) shadow docket. 

We did have an order as cited above; one of the no comment, "no" jobs.  It also looks like the Supreme Court won't show up any more in person on the bench. This was sorta assumed when Roberts after the final argument tearfully noted the end of the line for Breyer.  

So, we will continue to not have opinion announcements, or dissents from the bench.  It is fairly far down there, but being denied a Sotomayor dissent in Dobbs (abortion) is bothersome.  As is no opinion announcements available since 2019.  Yes, even the beginning of the 2019-2020 term (multiple opinion announcements pre-COVID) is not available at Oyez.com 

So, there will be an Order Day on Tuesday, with the holiday, and then another Thursday conference.  It would not shock me if they decide to drop another opinion day, which is after all just automatically dropping opinions online.  There are multiple opinions left that are not big deals.  

Meanwhile, High School SCOTUS has a new entry summarizing two recent opinions.  It is an impressive website and something that would have been nice back in the day when I was in high school.  I first was interested in the Supreme Court back then.  NYT used to have excerpts of certain opinions.  I was more heavily into the courts in college, slip opinions available (this was c. 1990) in a back room.  Tempus fugit. 

Weeks to Go ... Lots of More Dobbs Talk To Come!

The leak of a whole draft opinion, including its specific qualities, has led to a lot of commentary.  Let us also remember there there are multiple leaks. There is the draft opinion, which gets a lot of the attention.  But, there are also other leaks, continual really, of the overall process.  This end seems regularly to come from the conservative side.  In fact, I do not know of ONE article that referenced (other than maybe in very vague "they all" terms) the opinions of the liberal justices. 

Prof. Sherry Colb, e.g., have written about it from a religious and feminist angle in strong terms. She's clearly angry (her anger tends to be earned) and blunt. At times, I think she might be a bit too blunt, but when someone on the whole is on point, that's okay. I like to carp, sometimes maybe too quickly. Still, I do believe that. And, when someone does not respect someone because they latch on to a little part, that is one thing that bothers me. 

The leak of the draft opinion -- which a few remind us is a draft opinion and probably will at least be somewhat toned down (so I'm not really inclined to read the whole thing or something though reading drafts can be useful, especially if you have the final draft) -- to me has had clear effects to drive responses from the pro-choice side.  

The likelihood of a bad result was pretty clear, but the draft basically slams it over our heads. Many (with the exception of Tom Goldstein at SCOTUSBlog) non-conservative in nature assume the leak was from a conservative clerk or something.  One outlier liberal professor said she thought it was a computer hack.  But, the response to me suggests there is some argument to be made that the draft leak (again only part of the leaks) could have come from the liberal side.  

Abortion rights are Human Rights

Abortion Rights are Health Rights

Abortion Rights are Economic Rights

A basic response is to reaffirm the importance of reproductive justice, in particular abortion rights, to women equality.  This blog analysis, which ends with those three points, focuses on that significantly.  Linda Greenhouse in a recent op-ed (she no longer has a regular column at NYT, but still pops up) shows that the Thirteenth Amendment argument is also getting some traction.   And, we get some tools and tool curious.

But the argument that Dobbs is an illegitimate action by an illegitimate Court must hinge on more than "I have a different view of the law."

I bluntly call that "tool curious" in part since I'm tired of various things that guy wrote in the "I'm pro-choice, but will handwave the problems of the law ... I get you are emotionally attached, but this is how things work" sort of way.  He once, e.g., compared the Texas abortion litigation and the delays that led so many women to be denied abortion rights to NYT v. Sullivan.  There are significant differences.*

And, "I have a different view of the law" is not why people think what is going on illegitimate.  I'll try to be fair and calm here.  A basic concern for him is a statement like this from the last law professor linked:

If and when Dobbs overturns Roe, this will be the first time in American history that the Supreme Court overturns precedent in order to take away – rather than to expand – fundamental human rights. 

What's the reply here?  The Supreme Court at least "limited" the freedom of contract (Lochner).   Also, they "limited" rights of criminal defendants in various respects.  And, the Supreme Court majority might argue that it is "vindicating a right to potential life."  To be clear, the guy (huh) is tentatively accepting of the framing, but less sure it works. 

I would push back on too much fine tuning here and the fact two law professors are involved show this is just not a matter of me not "talking law" enough or something.  The scope of overruling abortion rights is the concern here.  Planned Parenthood v. Casey already limited abortion rights.  

And, the first person didn't actually say it was "illegitimate."  She said it had "horrendous implications for our democracy that cannot be understated" and "should be alarming enough and give us an understanding of how much at risk all our constitutional rights are right now."  

So, why is he referencing her regarding it being allegedly "illegitimate" for that reason?  I doubt it is rocket science to argue that it's possible for the Supreme Court to wrongly hold something is a right.  The concern is they plan to wrongly remove a right.  And, whenever they do that, they will argue they are somehow correctly defending "rights" in another way.

And, we have some more, this is so hard:

It cannot be the result simpliciter--that my constitutional understanding differs from that of the apparent five-Justice majority does not make their views wrong in any objective sense, much less illegitimate. It cannot be that it overrules precedent, because the Court has overruled precedent. This is also why it cannot be that recent appointees pledged fealty to stare decisis--case are always subject to reconsideration and stare decisis has standards for overruling cases. It cannot be that the stare decisis analysis is wrong, for the same reason that disagreement with substantive constitutional analysis is not sufficient.

Yes, since I do not think anyone with any half-way credible argument regarding why the opinion is arguably "illegitimate" rests on strong differences in constitutional ideology alone. Some do argue specific analysis here are so wrong that the opinion is not credible.  That goes to the merits.  It is simply a strawman, however, to say the argument is merely "I disagree, therefore illegitimate."  It's made too often.  I'm tired  of it. 

Likewise, granting there is limited confusion here, precedents are overturned.  The longstanding nature of the precedent and more again goes to people being very upset at it being overturned.  Still, even the common layperson is vaguely aware about how segregation was once accepted. They lived through same sex marriage being constitutionally protected.

And, people can change their mind about things (Alexander Hamilton did after he wrote the Federalist Papers).  That alone is not the point in a bare way.  Let me note I'm using this guy as a representation as much as a way to answer arguments.  It is an example of people arguing in a bad way.  I get upset at it, but it also suggests there is just a cluelessness of some.  

Anyway, the argument I have seen is that the conservatives basically lied about their respect for stare decisis.  People like Kavanaugh and Barrett were chosen specifically because of their positions on things like abortion. For them to parrot the usual bland bullshit about how Roe/Casey is the law of the land when it is apparent they would overturn it the first time it was sensible to their cause is just that -- bullshit at least, perjury at most.  

Now, maybe that is wrong.  Maybe, they just parroted the usual lines used by both sides.  This, however, is the argument I have seen.  It is not simply that stare decisis means law can never change or they cannot change their minds.  That's stupid.  If you want to briefly go down the list of bad arguments, fine, but let us be clear that you are doing so badly.

So, the basic arguments so far are (1) abortion rights are fundamental and it is on the merits illegitimate [especially given the weakness or even blatant offensiveness of their arguments] to remove such basic rights (2) they were put there, in sham sort of way, to do this and basically lied about it.  

If you want to refute this sort of thing -- like "reasonable" Orin Kerr does regarding how "both sides do it" regarding nominations from Garland to Barrett -- go at it. Still, if you want (the straining seems tough on you) figure things out, perhaps do a better job of it.  

And, yes, a basic part of the illegitimacy is that people think HOW they got there is illegitimate.  To add insult, a case that is about a limited thing (a 15 week ban) is used in a broad way to go after Roe itself.  Finally, many don't even focus on "illegitimate" as much as it being a grievously wrong denial of basic human rights.  

A horribly argument in support of state sponsored enslavement is bad enough for many of us.  At another blog, which no longer has comments either, a prime conservative sort basically questioned the good faith of the other side.  Their arguments seemed so wrong to him, it must be that.  I tried to argue that it is a matter of honest, if often wrong-minded, disagreement much more often.  Even he, however, realized mere disagreement alone was not illegitimate.  

Anyway, it would not shock me if the abortion cases brought us some sort of surprise.  There is so much commentary beforehand, people very sure of themselves in the process.  And, there is a lot of confusion.  To quote a favorite verse of mine of St. Paul, we continue to look at things through a glass, darkly.   

---

* The summary of the article compares the two situations, but SB8 was a novel approach with various dubious legal aspects, including making it more difficult to sue and retain relief.  It is not simply like historical libel litigation, which certain government officials could for their own ideological reasons basically abuse.

The delays of litigation are present in the libel case as with many other lawsuits.  Again, there is a significant difference when the result is to inhibit people from having abortions, and perhaps pressure them to have (permanent) children.  The NYT and other libel plaintiffs generally have temporary burdens (of limited reach) that later can be addressed.   

On the blog, he blandly noted the delays in the SB8 litigation as if there was nothing special about them.  The usual practice in these cases was to hold the abortion limits in abeyance pending litigation. Again, because the alternative is significantly different from the libel context.  

Finally, the SB8 law is patently unconstitutional, if perhaps predicatively acceptable.  The libel law was to my knowledge a fairly typical historical based one that the Supreme Court deemed in need of updating.  So, without fully going into the weeds of the article, I find the comparison to have various problems. 

More Dead Children

We had another horrible school massacre, another mass murder of elementary school children (with teachers, we are talking around twenty people). The eighteen year old shooter was killed by the police. He first shot his grandmother, who last I checked is still alive. I have no magic answers here. Maybe, at least a ATF director will be confirmed now?

"We don’t know everything that happened in Uvalde that day; reporters, and the police themselves, are still filling in the picture." Yes. There are reports that the police somehow screwed up. [Apparently so.] On one blog, people are cocksure about that, and a few were pissed (childish downvotes) that I'm not sure before we can get a clear picture of what happened. One concern is that the police should have just went right into the school (apparently, this is SOP), but again, I do not pretend to know exactly what went down.

I think it's an example of humans being humans, lashing out some without knowing all the details. Maybe, yet another death toll of children will result in some change in Congress. More tinkering, perhaps, since past death tolls didn't result in more. Meanwhile, we wait for the 2A case out of New York to drop at SCOTUS. 

[the below was added]

On that front, we again have people focusing on the "Second Amendment," and how textually that amendment seems to be limited in scope.  The talk of "militia" and all that.  See, e.g. here, which is a more open-ended discussion of the problems of finding a solution (e.g., mental health is a tiny part of the equation, and background checks are limited too ... a basic problem is handguns, which is blocked by Heller).

The emphasis on the Second Amendment is found on both sides of the equation, even though there are other ways to protect gun rights. Also, people neutral or leaning toward gun regulation have noted that the history is that by the time the Fourteenth Amendment came along, there was a broad understanding the the 2A protected an individual right.  

No matter what, there was a general understanding there was a liberty of self-defense (and perhaps other things, like hunting for subsistence). The idea that non-citizens (accepted here, even though they could have limited themselves to undocumented) broadly have no rights is dubious too as a matter of equal protection.  As noted by Prof. Franks in The Cult of the Constitution, this can affect what regulations are acceptable.  

The problem here broad here. We can repeal the Second Amendment and be left with 45 states with protections.  D.C. v. Heller recognizes a range of acceptable regulations, but there is not the political will (mixed with the filibuster) to pass broad legislation (again if handguns are protected, only so broad) or even limited legislation regulating guns.  The record in the states is more mixed.  Again, we will get a hint from the Supreme Court how far such state regulation will be able to go.   

I noticed after writing the first part of this entry an article that in part noted: "India is among a small handful of countries, including Canada and New Zealand, that have instituted legal protections for prostitutes."  The article discusses a legal opinion that provides further checks on proper treatment. It is an interesting example of modern day judicial review abroad.  

New Zealand (with a few million people) and Australia (25M) are nations where major efforts were made to respond to single massacres. But, the systems and nations are significantly different.  New Zealand does have a form of Bill of Rights, checking [I find there is a ton of details out there], without a right to bear arms.  Different countries have different forms of government (parliamentary, let's say), and societies.  Good luck with a 650K buyback program in this country. The litigation alone will be a mess. 

Again, you can point to certain states where regulations were passed, and some tinkering (after the assault weapon ban ran its course) on the federal level.  Both Obama and Biden tried certain executive orders, including lately against so called "ghost guns."  The Trump Administration even went after "bump stocks."  It all seems hopeless when there are more guns than people, but those who want a bit, I guess there are spots.

I again do not have any magic answers.  I do know that in my lifetime we have moved forward in various ways. We have a black woman vice president. We have (no matter if there are concerns now) nation-wide same sex marriage.  We have made significant moves addressing women issues.  At one point, drunk driving and smoking no longer became something to handwave.  Will we, like with slavery, do something BIG with guns?

I don't know.  We have our problems state-wide with things like stand your ground laws, which perverts our basic relationships in public places. We have as was pointed out some places that guns is now a basic Republican (and probably some Democrats in certain locations) campaign trope.  That is the sort of thing we need to shame at the very least.  

"Stop the Steal" candidates have won Republican primaries this year, with the exception of Georgia.  That's horrible and shows how basic lines are not accepted.  We need basic lines for guns too.  For now, we have more dead children, and more "prayers."  Let us assume we are all praying or doing the secular alternative.  Let's mix the empathy with action.   

ETA: We are regularly told that these mass shootings are a drop in the bucket regarding the overall nature of our gun problem.  

There are two general answers. First, we should not diminish the scope of these incidents by citing the immediate victims as raw statistics.  A suicide (a significant number of the gun deaths, in part since it is harder to kill these days) is a significant part of individual gun deaths. 

The numbers are greater there.  But, the reach is not.  Do not assume I do not know that individual gun deaths reach more than the death itself. This is especially the case with gun related crime, which can severely harm communities, and have other aftershocks.  

Nonetheless, there is a special dark power to a school shooting. Every student at the school is significantly harmed, along with the teachers and so on. And, students nation-wide are as well.  A suicide is usually not known other than special cases like the mother of the Judds (singer/actress).  Crime is often generally vague.  Wrong as that might be.  

But, it is hard to avoid the effects of mass shootings.  The psychological harm is not to be diminished too much without misunderstanding the overall harms.  Jake Charles, a legal scholar of the 2A, noted on Twitter that he is very concerned about stand your ground laws because it significantly changes how we act in public places.  These mass shootings have wider effects too, even if the death toll is smaller.

Likewise, it is not just that children are affected and all that. There is something special about a bunch of people all at once being murdered. Again, it would not be human to be unmoved by so many people dying. We probably should be more affected by other deaths.  We have limited abilities to deal with death.  Still, twenty people dying at once is not just twenty individuals. It is a mass event.

Second, all of these effects factor in here, mass shootings are national events that provide some push for change. This too is how things operate. Individual actions can lead to some movement, including local legislation and so forth.  So many mass shootings, including of children, can shock us into bigger change.  But, as with past wrongs, past evils, we as a society have so many ways to not do much at all.

Still, minimizing mass shootings because of raw numbers has problematic aspects.  You can point to the other problems -- the number of criminal shootings are troubling enough, with troubling effects, to warrant major changes.  People have been pushing, after all, changes regarding police related matters.  Often these involve use of guns.  It's an interconnected issue at some level.  I am not ignoring such things.

But, still.

Re-Districting Hits Me

New York’s highest court tossed out both congressional and state Senate district maps on Wednesday, ruling that they were both drawn in violation of the constitution.

The New York Court of Appeals (4-3) did provide a small, if perhaps short lived victory for Democrats.  It held that the litigation did not directly attack the assembly districts.  On the other hand, a pending lawsuit is in place for that.  Maybe, it would be sensible just to have ALL state legislative elections in the second primary.  

Various people on my side are pissed off at the whole thing, in part because there seems to be a double standard that allows Republicans in other states to get away with partisan gerrymanders.  I still have not seen a full analysis that provides a fifty state map that shows this.  I have seen various articles and such that point to various states like Florida.  But, Republicans control over half of the states these days, state legislative-wise.  

The basic problem is that this shows a need for a national check on certain states getting away with partisan gerrymandering since they play the partisan game in a more no apologies fashion. Like no national minimum wage or regulation encouraging a race to the bottom, this is the road to abuse. But, in part thanks to two Democrats and a united Republican caucus, the road to national election reform is blocked. And, the Supreme Court a few years ago washed their hands of partisan gerrymandering. 

This is just one analysis, but it seems like a reasonable take on how the whole thing is coming down.  We have a commission to district, but it is evenly split with Democrats and Republicans. A tie means the legislature gets involved.  This is not a great system.  The way to go is probably to make sure one or two of the members are at least somewhat independent, like a conservative Democrat or the like.  It's maybe possible.

A basic thing is that many of the people upset to me realize that the map was ... ahem ... illegal.  They just would argue that unilateral disarmament is bad this year in particular.  The problem is that you are left wanting the judges, who are appointed (if not for life) akin to federal judges, to recognize that and in effect look the other way.  An iffy solution.

There are other issues.  The late overruling of the maps (state and federal) means that a bunch of late in the day stuff has to happen. First, after we streamlined things to have one primary instead of two, we are back to two.  And, candidates have to deal with the new lines, multiple incumbents (sometimes now going after each other) and challengers changing where they will run or having significantly different districts to defend. 

Non-presidential years (even though the governor is running, I doubt the incumbent is that much at risk to drive up voting in the primary) already have less turnout.  This is so even though we have some important races, including a half-way (he still parroted some b.s.) sane secretary of state winning in Georgia.  Two primaries will cut down turnout even more.  And, without instant run-off voting, winners can have a small fraction of the vote.

(The bad thing out of Georgia is Marjorie Taylor-Greene won her primary, by a large amount, even with multiple other options in the Republican primary.  She apparently -- perhaps for not talking out of school about Republican insider talk -- isn't a lost cause like Madison Cawthorn.) 

I am inclined to think that the court of appeals ruled correctly (4-3 makes me a bit unsure), but the end of the day confusion is bothersome. This includes have a special master now having the power to draw lines, which does happen in cases like this.  It still is bothersome, since you want a more representative means of drawing district lines. 

The commentary I cited noted that the lines are basically fair, perhaps slightly more Democratic friendly than might be expected.  The basic issue here is that the old map was a partisan gerrymander. Of course, the map would be less friendly to the Democrats.  It would be a matter of if you could somehow maybe get one or two more seats anyway.

There is complaints that the district lines do not properly respect racial diversity.  The commentary I cited doesn't really think so though others disagree (my current senator, Alessandra Biaggi, linked a critic).  There is an upheaval regarding incumbents.  But, is that really a bad thing? A "blatant" case is two members there for thirty years who might now have to run against each other.  People do not have some sinecure for life here.

AOC had a constituent session online.  By surprise, when she talked about the new lines, Morris Park (my neighborhood) came up.  And, damn, I have been redistricted and will lose her!  I also lost Biaggi, who is another young upstart, but since she is running for Congress (now in a different district), I was going to anyways.  You cannot run for state and federal office in this state.  The assembly map is the same, so no change there, though my current assembly-woman is less exciting (she's fine).

Looking at the map, it turns out that Morris Park Avenue itself is the new line, splitting my neighborhood between AOC and another person.  I find this a bit asinine since it is simply not a natural line population-wise.  It should have been not that hard (a district has hundreds of thousands of people; even if a thousand people was involved, you could do it) to unite my immediate neighborhood. I would say Sackett Ave (a few blocks away) and Williambridge Road (a short walk the other direction) would be logical.   

As is, the new line is -- not kidding here -- a fraction of a block away from me.  Like Sarah Palin, I can will be able to see AOC's district from my house.  I'm sure Ritchie Torres (who I suppose will represent me) is a fine person; he is in his thirties and a newcomer.   Like the new blood.  And, with a new senate district, figure, I'll have less to worry about in that race, since there will be a logical incumbent to support.  But, I felt nice being in AOC's district.  And, now I'll be in it when I go the supermarket (if that side of Morris Park is her district) or something.  Oh well.  

We will see if anything changes, including regarding the assembly. As of now, the first primary will be at the end of June.  

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ETA: We also have a new lieutenant governor, Antonio Delgado, which means for a short period there will be one less Democrat in the House of Representatives.  I am reminded about this by a reference in a pro forma session, which also noted that the current membership is 428.  That means there are seven vacancies, a significant number with the thin majority.  

Delgado is now the first Latino to hold state-wide office.  To some degree of dissent, there was a vote passed that allows the LG that resigned to be off the ballot, some grumbling about the special means to do it.  Maybe so, but it seems reasonable to dispel confusion, the alternative having the old LG on the ballot.  The old LG now worrying about federal campaign finance charges, running for re-election is not his concern.   

SCOTUS Orders/Opinion Day

Order List: Short list with one notable thing. Breyer again flags his longstanding opposition to executing those on death row for decades, especially when the government is clearly to blame for the delays. He also flags the solitary confinement suffered by the people involved. Such a person was due to be executed last week, but was delayed for a technical reason (competency matters also were flagged by his lawyers).

There were two opinions today. First, we had a technical arbitration opinion by Kagan, which liberal sorts have praised as a reasonable unanimous opinion. The opinion was not even seven pages long (minus head notes) and shows SCOTUS will have various limited cases that are not controversial. These are the sorts of "see?!" cases Justice Breyer loves.

The second opinion [against the same person as Breyer's statement] was a lot more controversial, a 6-3 habeas opinion that received some strong criticism. Thomas v. Sotomayor, which is likely (as here) to have strong takes on each side. It involved the right to counsel in a death penalty case. Sotomayor shows how much "hollowing out" of precedent is going on.

More on Truth's Table

The other day I noted:

I also just started a book based on a podcast by three black women entitled Truth's Table, telling things through a black Christian women lens. So far, it is a good way to get a different perspective of things, even if I might not agree with the specific Christian views of the women in particular. This might be a good time just to let them express their own vision.

I finished the book, which is a collection of topics of life, love, and liberation by the three hosts (each have certain chapters) of that podcast. The book is not really (suffice to say) meant for me, namely, a white non-Christian male. 

Nonetheless, it has an educational value, and I am (mostly) inclined to let them see things in through their own ways. I don't want to "mansplain" (as someone accused me of online when she posted a comment that I thought could be read to partially refute what I said; I disagree though it might have been pedantic -- a fault of me at times) or need to be "decolonized" or something.  And, I am not really being sarcastic though maybe a tinge. 

A few quick things.  The women here are firm believers (one is listed as a "public theologian" and another a "senior pastor"and another wrote, e.g., a chapter on "disciplining the church" as a self-corrective.  The book, more chapters than others, has Christian references and analysis, including doctrinal (there is even a passing shot at Gnosticism) that let's say are not my general cup of tea. A little of that goes a long way for me.  

I'm not really going to spend time here to refute that here though again that isn't for me.  More general themes, including their clearly negative experiences with white churches ("white" here including leadership of churches with significant non-white membership), interest me more.  

The book has some strong anti-white vibes at some points.  Again, so be it, given the viewpoint.  But, at some point, I did say -- wait, isn't Christianity for all peoples?  There are a few points where a major draw of the religion is as much as its non-white origins in Palestine as any number of doctrinal points.  (I find the basic sacrificial aspects rather outdated; I favor if anything the "self-knowledge" approach swatted aside at one point).  

One thing that I find ironic regarding a book with a clearly feminine sentiment (black women Christian to me is the clear order here) is support of a religion that is framed in such masculine ways.  A creator God that is framed as "He" to me is just ridiculous at some point, even if logically in the context of the times back then.  The whole "son" bit also bothers me and the Twelve are all men too, even if (though some translations make this harder to catch) "apostles" is sometimes used broadly to apply to women.

At some point, the doctrinal stuff and to me repetition (one author to me did a better job of hitting to the core of the matter) that could have been condensed better (and it was somewhat doctrinaire, not written in down to earth ways) led the book to be somewhat tedious. 

The anti-white stuff at times also seemed heavy-handed.  But, and I'm not handwaving here, I firmly am aware that they are speaking with a heavy degree of compensating for the realities of power here. I still think the truth is a bit over.

Overall, I was glad to read the book.  It provided some good insights and to the degree I disagree (and each were generally of a liberal mindset, even if one chapter's reproductive freedom principles were framed somewhat opaquely), I should read more in that respect.  I readily admit that reading just plain conservative material is not something I do. 

SCOTUS Watch: Some More Drama

An opinion day was announced for Monday, but before we do so, we can say some more words about ongoing drama.

First off, a summary of SCOTUS drama news. First, we have Thomas v. Roberts. SCOTUS conservatives in general acting out (since the leak, other than perhaps reference to an overall unease, the liberals seem to be absent from the coverage, except for an SCOTUSBlog argument on why it is logical to assume a liberal clerk leaked the draft).

And, more news about Ginni Thomas, now attempts to get the Arizona legislature (a former Thomas clerk, now a state judge, has a spouse there) to overturn the official finding Biden won.  And, surely, Clarence Thomas has no role here, including any reason for him to recuse from election litigation!  

Meanwhile, I have seen some people just handwave the value of private Supreme Court deliberations.  I think that is tossing the baby out with the bathwater.  The conservatives are leaking like a sieve, which can't be skipped over as if only the leaked draft matter. And, the result is the most serious thing.  Overheated b.s. also is hard to take seriously.

But, we have private deliberations (in a range of contexts) for a reason.  Sneers about a "right to privacy" for only judges aside, privacy as a general matter during deliberations helps the process.  Likewise, use of leaks to influence public opinion and/or other members of the Court (see second link) does send a message that the justices are but politicians.  Maybe, that is honest. All the same, doing so blatantly changes matters. 

===

As a sorbet cleanser, some good blue state abortion news.  I have seen an advertisement about Gov. Hochul supporting a state constitutional amendment to support abortion rights.  I thought the state constitution already has been found to protect abortion rights. The process would take two years and it looks like the idea is an open-ended one not just abortion related.  New York already recently statutorily expanded abortion rights. 

===

Meanwhile: Primary season continues, including Madison Cawthorn losing (not by much) and it being too close to call in Pennsylvania for the Republicans (the urge is to root for Dr. Oz as an easier mark for November, though after 2016, you continuously fear doing that; but everything isn't the same there).  

One more wrinkle is the Republican governor candidate very well might be disqualified under 14A, sec. 3.  His role as a "stop the steal" guy has been cited though I have not seen this covered elsewhere (not that I really researched it, but this issue has been generally ignored).  People also note that if he wins, he can be in power after the 2024 elections.  There is however some chance the chance for ratfucking will be somehow addressed by pending bipartisan efforts to address electoral counts. 

Oh, there is drama with new maps in New York.  The whole thing is a mess -- even if (maybe so) the court of appeals was correct to strike down the House/state Senate maps as a partisan gerrymander -- however unfair that seems since Republicans in other states have gotten away with it -- doing so with elections in August is really a mess.  It is still unclear just how final the map that just dropped will be. To be continued!

The Lioness

Books: I was the first one to take out the new fiction book by an author that I never heard of but many others did (e.g., the pretty one in Big Bang Theory is in a new series based on one of his books). I don't know if I would like the others -- I tried that with a romance novelist and didn't like the second book I read -- but maybe I'll try at least one more. 

This one -- The Lioness -- concerns an actress and others accompanying her on a safari in the 1960s being part of a kidnapping going seriously wrong. The book has a bunch of first person points of view, which is a tactic I like. I like to see things from various vantage points.  When I was a teenager, I actually tried that out with a story about -- what else -- abortion. 

I found the book a free and easy read, flipping back and forth from the past (recent and further back) and the present. The fact the captives fought back is both dubious as strategy (half died though one from her wounds, one separately) and questionable as something likely to happen. But, as a fictional device, it worked overall. About three hundred pages; good length.

===

I also just started a book based on a podcast by three black women entitled Truth's Table, telling things through a black Christian women lens.  So far, it is a good way to get a different perspective of things, even if I might not agree with the specific Christian views of the women in particular.  This might be a good time just to let them express their own vision.  

One thing referenced is that "there are no white people in the Bible."  My thought there is that as a half-Italian, what about the Romans?  This argues that the reason is that "white" was not a concept yet.  Here is another take:

Does that mean though that there are no White people in the Bible? Race isn’t only about color; it is a social system about power. In this respect, the Bible shows systems of inequality that are all too familiar. Although it’s true that the Roman army was much more ethnically diverse than White history often chooses to remember, it’s likely that at least some of the Roman occupiers would have been—what we now call—of European descent.

I just started the book (a few chapters in), so maybe the concept is discussed more later.  It is surely correct that the Bible as a whole concerns people of Near East persuasion, even if it is common to portray Jesus as white, sometimes as if he is some sort of white hippie type.  And, people like the great Christian scholar Augustine was North African. 

Anyway, the early chapters include discussions of colorism (black people being concerned with shades of black), protest, and decolonization of the black church.  I might not be meant for the table, but I assume that I am among those allowed to stand up in the back and listen.  

And, even evangelicals these days are mostly seen as the pro-Trump party, tainting Christian religion in general, I welcome those who live in the Christian faith and have something useful to tell us.  Plus, black women are the most likely to vote the right way.  A plurality of white women voted for Trump.  Black men can be lose their way too.  

(On the bus today, one black guy maybe twenty or something, was firmly sure that men were superior to women because Adam came first and they were stronger and built a lot more stuff.  Some guy he was speaking to tried to calmly explain why he thought women were equal to men, but figure him starting off "granting" God exists alone made him seem confused.)  

So far, I like overall the woman's point of view, and again the Christian stuff is not overwhelming, even if (the reference to God as "he" just seemed off) even beyond the fact I'm not Christian at times I simply don't buy it. Still, again, I'm open to seeing things using their poetry as long as the rest of the stuff is has something to say worthy for even this white dude.

SCOTUS Watch

As the abortion draft leak continues to fester, the Supreme Court continues to do its work. The Order List was relatively uneventful though two cases were granted. Another in the conservative campaign to micromanage the structure of the administrative state. And, a habeas case that some are worried about given the leaning of the Court.

The two opinions split basically along ideological lines, a finding person deportation had no statutory right to access to the courts written by Barrett, an expected result in a Ted Cruz campaign case by Roberts. Kagan, as she did in the past, wrote a strong dissent in the second case. A limit on loans to campaigns is not some free speech violation, even beyond the dismissive "money isn't speech!" line, which is overblown since money is necessary for it. 

[A typo in this opinion was later fixed.]

A mild surprise, at least to those not aware of his past actions, is that Gorsuch wrote the other dissent. He does from time to time have a libertarian quality when federal power is involved. Not in the Muslim Ban case and in various other instances. 

But, his vote here is not really surprising. A 6-3 Court allows a judge to bleed off from time to time, anyways.  As to the right result, again, I'm not going to pretend to know what the exact law is.   I do think there should be a strong understanding here [basically cited by Gorsuch] to allow judicial review.  The Biden Administration supported that at lease, an amicus invited to argue the position ultimately accepted. 

If there was a clear statutory bar, such a constitutional / fairness principle would not necessarily rule the day.  Unless, you could make an independent constitutional argument.  But, a constitutional avoidance argument is valid here.  And, I doubt in a 5-4 case, there isn't enough room to you know, avoid it.  

===

Meanwhile, an execution -- involving a crime from over four decades ago -- was scheduled today in Georgia.  Clemency was denied.   It was a horrible crime, but there is a basic injustice (Breyer again repeatedly cited this) about executing someone so long after the crime and conviction.  

A hold was place, an argument made that the state agreed to a COVID hiatus that has not truly been completed.  The real failure of judgment is to decide that after all this time that an execution is warranted. If you dug, you probably could find various reasons for the delay.  But, at this point, such reasons are a bit besides the point.  Forty plus years is just too long.

If he is executed all the same, I will update this piece. 

Film and Books

I saw The Slipper and the Rose in my movie review book (Leonard Maltin) and actually found a full cut on Youtube. It is a 1970s British take on Cinderella, adding music. The familiar face is Richard Chamberlain as the prince. And, this version does focus largely on the royal side of things. 

We do get Cinderella too though there is no comeuppance for the wicked step-family.  She (to the stepmother's annoyance and you think something will come of it, but no) forgives them since she has found true love and happiness. A healthy sentiment.  Still, some might want more "Cindy" [note this is an insulting name, from the "cinders" she cleans up] when watching.

The post-ball material is somewhat off (the whole shoe fitting thing quickly is handled, no one is found, and later on we don't even see Cinderella's foot in the shoe -- she just finds it!).   But, overall, it is an enjoyable film, well acted with a wonderful story-like setting, and good singing and choreographically as a whole.  Cinderella never looks very down and out, but the actress looks young, beautiful, and full of life, as necessary.

[Beyond This Tale: There are varieties of this story, including ones that might add some literal meaning to the "fairy" godmother -- using an impolite use of that term -- but one I would be interested in seeing is one via the perspective of the stepmother and stepsisters.  

I think Angelina Jolie is another context was in a film where an "evil stepmother" type character is given some perspective.  A revisionist view would likewise try to consider the second wife and how she would have to handle two daughters and a daddy's girl etc.  I even was thinking, though this is really going out there, having a stepsister win out in the end.

The Drew Barrymore take-off had the younger step-sister at least fairly decent as I recall.  And, the stepsisters -- like Cinderella -- are possibly but teens.  Cinderella was a minor in this film.]  

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Books: I found two books at the Van Nest Library, which has various displays of shiny new looking books.  One is a young adult book by someone with many (I'm not familiar with her) entitled Every Single Lie.  A teen finds a dead baby and the rumor mill (helped now by Twitter) kicks in, her family already dealing with the death of a father with various issues.  

The book is well written and we find out in the end that it is inspired by various facts in the author's life (various parts, not the united whole).  The book covers such things as social media and how tragedy is reported and exploited.  I did feel a bit put upon that when I finally took a break from Twitter, which I use too much even if I now do so only Mon-Th, I had to read about Twitter too!

At some point, there is a feel that the poor girl has one thing after another put on her, down to the final reveal.  Still, I liked it, and the simple statement that some junior in high school is having sex is just tossed out without much comment.  It's one of the nice realistic feeling touches. 

(There is a "friend" who turns out to be not much of one, but to remember, the girl is only around fourteen.  She is selfish and has horrible judgment, but she is an immature girl.  Also, an assumption is made mid-plot that makes sense up to a point, but is somewhat less realistic today.  OTOH, it adds to the "assumptions we make" theme of the book.) 

The other book is a manga entitled Banned Book Club, which is based on college protests and related action during military rule in early 1980s South Korea.  The power of books [the deeper meaning of Shakespeare is touched upon] and resistance is still very topical around the world.   The heroine using her assumed innocence to her benefit in one side was great. 

Talking about 1980s, the son of the infamous Marcos duo will now be the leader of the Philippines.  I find these reboots a bit tired after a while.

Friday was Jen Psaki's last day.  And, since the Internet and so on is addressed above, this analysis on the "marketplace of ideas" is apt.

Clarence Dixon Executed

After eight years, the last time reported botched, Arizon executed someone else. The Supreme Court rejected his final appeal (citing mental illness) without comment. Again, I don't find that right. They should have a brief comment and this executed in particular deserved a few words from a liberal dissenter.

Telling comment: "Arizona now has 112 prisoners left on the state’s death row." The AP story says the execution went smoothly, but other reports says they struggled for twenty-five minutes to place the IV. Another wrinkle I saw: Dixon was a Native American of a tribe morally against the death penalty.

Dixon had various health problems and was sixty-six when he died for a long ago crime. If executions are ever justified, there were enough questions of his state of mind, and the safety factors involved (no escape from prison etc.), to make his a bad call. Only six executions this year and still there continues to be problems.

Cheap Speech: How Information Poisons Our Politics -- and How to Cure It

I generally respect Richard Hasen, the election law expert, though a few times he said things I found stupid. For instance, Hasen decided to repeat multiple times the idea there was no reason to filibuster Neil Gorsuch, that it would do no good, and it might help (if you did not) when the next nominee came along. Shades of "hold your fire" when Roberts were nominated and nothing really happened with Alito.

Disagreements aside, including his argument that a sort of "skinny" voting rights bill should be promoted [basically negotiating against yourself and it was pointless since you STILL had the filibuster], he is well worth reading. He has had a few smallish books now though the content largely overlaps (if with more explanation and notes in one space) what you can find online.  

His latest is about the dangers "cheap speech," widely available information without the filters of past days.  The first chapter starts with 1/6 and the 2020 Election as a whole.  Hasen in a somewhat emotional moment dedicates the book to the "heroes" [I quote here, it's not sarcastic] who defended us and a fair election on that date.  

[At one point, Hasen notes that the 2016 Trump campaign did not collude with Russia to interfere with the election. Without at least a bit of nuance, that is wrong.  There were multiple cases involving his son/son-in-law as well as his campaign manager and that creepy guy with a Dick Tracy villain look (Roger Stone) where they worked with Russians somehow, including trying to get dirt, giving poll data to a Russian agent, and helping leak materials.]

"Cheap speech" is the sort of thing provided on this blog, music able to be downloaded on YouTube, and all the information provided on the web.  This includes information that is filtered -- such as SSRN based articles -- as well as things largely not (like a range of things on Twitter though that can be a mix depending on who is speaking).  

This information explosion is good and bad.  It provides of useful information and engagement.  But, bad speech can also crowd out the good.  This is a sort of "lemon" problem, based on an old economic paper talking about how the amount of untrustworthy bad used cars (lemons) made it hard for people to trust the good ones.  Carfax now helps that.

Older viewers are more likely to rely on bad speech.  Younger ones are cynical and think it all is bad.  Hasen opposed a constitutional amendment to deal with Citizens United (for various reasons) and only goes so far with limits here.  He supports things like more regulation of foreign involvement in elections, disclosure laws (including of "deep fakes" / altered content), defamation laws, and perhaps stronger antitrust rules.  

A few less well known options are suggested.  One thing I'm wary about is not allow micro-targeting (of specific groups, collection data that people are not really fully aware of).  Hasen also supports outlawing blatant lies ("you can vote by tweet") though lines here might be tricky (the whole stop the steal bullshit).  Disclosure laws can also address use of algorithms by Facebook and other platforms, which have been shown to favor Trump and invite reading divisive/sketchy content to get more clicks.

Many things are not going to be done by law.  One thing is to keep the law from stopping certain things, like the idea that Twitter should be treated as a common carrier that has to accept all comers.  Also, basic legal structures such as reliable electoral institutions and the courts are very important.  It is downright scary to note the number of Republican trolls who will be in leadership roles in upcoming elections. 

Self-regulation, encouraged by pressure from inside and out, of such things like Facebook and Twitter is important.  Means to support traditional media, if carried out on new platforms (such as online), is also important.  Such media can be funded by certain very well off people (such as Washington Post/Amazon) and by the public.  Various regions, however, are "media desserts."

Again, the law should recognize the press has certain value, and can in various ways (such as access to courts, source protection, and certain limits from campaign rules) be treated differently.  And, ultimately, it is up to each person to be an informed citizen, a careful consumer.  This is something that has to be learned, taught, and promoted.  See, for instance, this good book aims for teens on analyzing truth.  

[A snapshot of cheap speech's dark side is seen by the attacks of a woman chosen to be on an advisory board set up by the Department of Homeland Security on the threat of disinformation.]

I had one limited (was it even a full year?  do recall the teacher was not very good) class in high school focused on current events.  Recall needing to write short papers on various news items or something.  But, students should not only have civics classes each year; they need a constant lesson on how to think and be an informed consumer of facts and knowledge.

There was an old ad line where the "informed consumer is the best customer."  I'm not  sure that is really right in the mind of many companies.  It still is a good thing to promote.  

---

* One thing to add is that the book references the limits of the "marketplace of ideas" concept where the answer to bad speech is "more speech."  In various respects, this does not work, and bad speech might be more powerful.  Shades of The Cult of the Constitution.  

This simplistic libertarian view (Holmes) should be balanced with a more democratic/citizenship model, where the intelligent citizens needs to be informed (Brandeis ... modern day Breyer) with some limits and regulation to make sure this is possible.  

My heart was with the libertarian view, but in time -- especially in light of certain MAGA type comments online -- I see there are some limits.  At the very least, the libertarian model is a bit too simplistic though I still question something like obscenity bans. 

Representative Taylor-Greene is not ineligible to run

An administrative law judge determined that Marjorie Taylor-Greene did not "engage" in an insurrection for purposes of the Fourteenth Amendment. This was after a hearing where her memory was sketchy though we did get to see it all, including in a video link at C-SPAN. Such an open process alone is useful, including to get things on record, help inform the public and get media attention. Other congressional members are being challenged too.

This surely isn't final (that would be the House deciding whether or not to sit her in 2023); also, it is appropriately limited in scope. There is not an idea some 1872 law or something means you can't challenge her today. The issue of what an "insurrection" means is not finalized. And, some narrow involvement in the events that day is not necessary. But, not enough was found to be present here, the burden on the challengers.

I'm not going to say it is clear the finding is right and/or there isn't more to show she should be barred. But, the test should be fairly broad, since the public is being denied a chance to elect her. I also am fairly sure someone in Congress should be barred. To be continued; maybe, Congress will eventually pass a new enabling act for the provision. They should.

Supreme Court Watch

There is no conference this week and so far no more order or opinion days scheduled. We will get back on schedule there with the conference/order set (Thursday/Monday) for the rest of the month. With less than thirty written opinions, surely will have opinion days, if maybe leaning toward the less hot button cases.

(There is an execution scheduled next week, so that might require an order. As usual, there might be some miscellaneous order, or something else popping up.  There was also an order for further briefing in the Remain in Mexico case that is due next week.)

The big news this week, obviously, is the leaked abortion draft.* This led to a lot of reaction, including some basically using it to assume abortion rights and more are clearly DOD. Others try to tone that down, though this gets some ridicule from the usual suspects. Some, including the official line from Jen Psaki, remind it is only a draft. So, we don't know exactly what will happen.

The first thought from many liberals was that the leak came from the conservative side to keep together a strong conservative opinion. Another take, reminding that we already had a leak about negotiations, suggested an argument for a liberal leak. Victoria Nourse, the law professor, on Twitter suggested the leak came from a computer hack of some sort. I think we need to be wary here about assumptions. A surprise, limited it might be, is still possible. Guess away though.

If Nourse is right, maybe the idea it is laughable that the Court's marshal can help find the leak is a tad overblown.  I think that commentary is good to remind that the Supreme Court still is too unregulated, the idea that an ethics reform is just stupid (how would we bind them?) overblown.  If a reform law provided various means to complain, reporting rules, and so on, that alone can be useful. Anyway, this is a powerful statement:

Most Americans, we suspect, assume that there is some procedure to enforce both internal rules and federal laws within SCOTUS. There is not. If a justice commits an ethical breach, including a violation of the federal law mandating impartiality, there is literally no recourse (short of impeachment). There is no way to force a recusal; that decision lies with individual justices. If an employee witnesses malfeasance, there is no mechanism to report it—no tip line, no whistleblower protection, no chain of command to ensure that the matter is investigated. If that employee dares to disclose it anyway, they can be fired with impunity, as can other staff who experience discrimination or retaliation.

I saw one poll cited that showed broad support for ethics reform, term limits, and age limits.  Term limits are popular and logical, but hard to put in for constitutional reasons.  Ethics rules should be a lot easier to handle as would more open government processes such as permanent live audio or even video.  Again, maybe that is a bit more controversial as a matter of constitutional separation of powers, but only so far in my view.  

One visual bit of symbolism is the use of fencing around the Supreme Court building.  Senate Democrats are preparing to again vote for a sort of statutory Roe, which last time obtained forty-six votes, a few Democrats not available. There is the nay-saying that this will just be eventually overturned on federalist grounds, but that is not presumptively obvious, and a few steps ahead. 

Collins, just shocked at Kavanaugh's apparent turn, already is saying she won't sign on to this basically symbolic (without the end of the filibuster) move, since it allegedly will not protect Catholic hospitals (a b.s. argument; the hospitals also have their own problems, repeated cases of women's health being threatened cited). Figure Murkowski will go along with her. 

Again, one thing some "reasonable" types are arguing is that the abortion ruling won't go THAT far.  At best, this is a matter of raw pragmatic power, not really a matter of principle.  I know, that is shocking and all, but just to point it out.  And, the argument is dubious based on "popularity" given a strong anti-abortion ruling isn't popular.  

One form of this argument is put out by a favorite among some liberal professors and the like, Orin Kerr, who is known for such things as "both sides do it" regarding Trump nominees.  His reasonableness only goes so far and I'm done with such types. The stakes are too high.  Let's cut the b.s.  And, that is yet again going after RBG. Is that some sort of kneejerk?

[The argument is overblown. Liberals don't just "fall in love." Loads of them, including as shown by support of Biden, compromise and go along because that is how you handle things. It is a flawed coalition and the alternative is too harsh to contemplate.  Anyway, she's dead. Move the fuck on.  Well, you won't, but that's just my sentiment on that point.]

Anyway, Roberts was out in the wild, noting that the released draft won't affect their judgment (uh huh) while Alito decided not to take part in a scheduled Fifth Circuit event  (so sad).  I have yet to see Sotomayor or one of the liberals having a public event.  Sotomayor had one not too long ago and at times some questioner flags the divisions or some such thing.  

She is a tad less blatantly ostrich-like about the whole thing, though still politely says she has to do her best.  The mask kerfuffle also noted she and Gorsuch are pals.  Always nice.  

The abortion draft leak has increased -- as "moments" tend to do -- wider debates.  One is the limits of the courts as an institution.  I think this sort of thing is a bit overblown.  One central thing that comes to mind is that courts not only have only so much power (the Plessy Court was part of an era), but is part of a wider political institution.  

The Barrett Court is a result of Republican ratfuckery, helped along by some political structural problems.  Consider how the Dred Scott Court was in large part a result of the existing political world of the time, one where the party system favored going along with slavery.  If the Civil War did not occur, a real shift could have took place in the 1860s with a strong Republican Court, eventually led by anti-slavery Salmon Chase. 

The bottom line message here is the breadth of the situation, moving past the depressing state of needing to worrying about basic privacy and equality rights fifty years after they seemed to be addressed.  This situation built up over a long time and it won't be fixed right away.  A major part of it is to understand the problem and be open to change, even if you cannot immediate do as much as you want to do.  

On that front, we are but in the middle of things, perhaps on some front the beginning of things. The 2020s will continue to be ... something.  

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* I will edit this entry by noting that the "the leak isn't the point" replies are overcompensation. The Strict Scrutiny Podcast women law professors surely can't be labeled soft on women's rights or anything, but found the leak particularly notable.  The leaking of a whole draft opinion, on top of the leak to the WSJ about negotiations is notable, including the attempts by insiders to use political pressure to influence the law.  

This is another installment of my general sentiment that life is complicated with things having various aspects. Surely, the content of the draft and eventual opinion matters.  Process still matters, even when results are most important.  Law especially is a lot about process (due process, you might say).  

And, however you see it -- and some think the leak ultimately is a good "snap out of it" honesty moment -- the leaks is an important part of the story.  If Republicans are hypocrites for NOW worried about appearances (since it taints what they made and lets them avoid talking about stripping rights), that only shows again this is an important part of the story.  

We can still focus on the results. 

Karine Jean-Pierre: New White House Press Secretary

So, I just want to take the opportunity to celebrate and congratulate my friend, my colleague, my partner in truth, Karine Jean-Pierre, the next White House Press Secretary.

It has been known for a while, though she still doesn't want to talk about it, that Jen Psaki was in talks to move on to MSNBC, which got some people miffed. We now know Jen Psaki will leave the podium at the end of next week and Karine Jean-Pierre (who regularly filled in though someone else did too when both were out with COVID) will step up. 

It was a touching moment to see Psaki introduce her and Karine later was called up to add a few more words about the moment by a questioner.  She resisted some the push to highlight her being a 'first." We had a few women press secretaries (which seems logical on some stereotypical "women communicate" level; there also was a bit of a recent trend to have women secretary of state).  

Now, we not only have a black woman, but one (as her bios seem to usually say) with a woman "partner" with a child together.  Another first for Biden though to be clear (like Psaki), she has a lot of experience.  (Ha ha -- she was a deputy campaign manager of Martin O'Malley.)  She looks young, especially in that video, but is actually born a year earlier than Psaki.

Karine Jean-Pierre has a different style than Psaki, seeming to be more soft spoken, seemed less free and easy, and not as snarky and CJ from West Wing-like in some ways.  So, it might be a bit of a shift at first.  Clearly, given her career, she has a lot of skills to do her job.  So, though another person who filled in for Psaki was more comfortable to me because she was more Psaki-like, I look forward to Jean-Pierre doing a great job.

I hope Peter Doocy will be able to handle it.

Reproductive Liberty on the National Day of Reason (Prayer)

I noted in my addendum on Monday regarding the leaked draft abortion opinion that I would continue my hedging on making strong conclusions. Nonetheless, there are various things to be said, and many said it. One good discussion is from a separatist leaning religious law scholar. One thing it includes is that the opinions reference to a "belief" underlines the religious liberty nature of reproductive liberty:

The way to allow everyone to live their own truth is to keep abortion legal. Those whose religion condemns it can eschew it; those whose religion does not can opt to end unwanted pregnancies and control their own fates.

The religious liberty nature of abortion rights is not really surprising given how religion is such a big part of the movement against abortion rights. Nonetheless, many for abortion rights also are motivated by religious faith to some degree.  Catholics For Free Choice is but one group whose stance is influenced by their religious faith.  

The matter is often not seen in a religious way though again that is a bit silly given the history.  Other words like "belief" or "morality" or "conscience" is used.  One significant lower court opinion noted:

Whatever discretion a legislature may have in deciding, within constitutional limits, to assert a generally acknowledged state interest at the expense of a constitutional right, it cannot do so here where the significance of the constitutional right is extraordinarily high, and the nature of the state interest asserted is itself a matter of such diverse personal judgment. 

And, the "personal judgment" involves a range of things, but religion clearly is a significant aspect.  The American Humanists had this to say about the draft opinion:

Access to safe and legal abortion is about more than reproductive choice and freedom. It is also about economic justice, racial justice, and our inherent right to self-determination,” comments Nadya Dutchin, Executive Director of the AHA. “This leaked draft shows us what humanists and the American Humanist Association have known; religious extremism continues to undermine good government and advance a bleak and regressive future."

Reproductive justice is warranted for a range of things. Religion is not going to be the grounds for that in every case, but quite often it will be, including the purpose of the restrictions.  A personal's position on "life" in this context is not going to be merely some scientific decision.  It will be a choice that will be religiously motivated or some non-religious approach in place instead.  Not speaking is free speech; no religion is religious liberty.

Reproductive liberty or justice (justice sometimes used to be more open-ended) often is something that humanists and freethinkers support in part because of this very fact.  Again, it isn't just this.  Thus, for instance, it clearly is a matter of sexual equality vs. stereotypes and so on of sexual roles, the importance of true equal citizenship.  And, other things.

The religious liberty aspect is unfortunately not addressed enough in court opinions though Justice Sotomayor flagged it in the Dobbs oral argument. The National Day of Reason might be a good time to cite this.  In fact, so might the more well known National Day of Prayer.  A day that I have expressed might problems with in this past, granting there are bigger issues.

Democratic presidents these days try to frame religious messages in a broad way, honoring the fact that not everyone is a member of a monotheistic faith and so on.  Nonetheless, there is only so much that can be done when Congress singles out a day to honor "prayer" and in a statement "in the year of the Lord," President Biden decides to "invite all people of faith to join me in asking for God’s continued guidance, mercy, and protection."

There are a ton of days honoring things, but there is a certain provision in place that is concerned about separation of church and state as compared to any issues with honoring Asians and Pacific Islanders.  There is a certain gratuitous thing here too since these days "God Bless America" or something is a thing tossed at the end of standard presidential speeches.   Why the need for a day of prayer?  Sorta what the Sabbath is for, huh?

Charlotte Salomon

One thing I like to do is to read reviews and saw a review of a new animated film (Charlotte), which is about the German Jewish painter Charlotte Salomon, who was murdered (let's use the right word) in the Holocaust. I was not aware of this woman, but she has an interesting story. And, a sort of family tradition of suicide, multiple family members doing so.

Charlotte eventually sought refugee in France though eventually full German control of the country led to her death. Her father and stepmother sought refugee in Holland, but eventually were able to survive the war in hiding. Her French connection suggests why a French author and screenwriter to find her fascinating.

He eventually wrote a sorta biography (largely based on her magnum opus) of which I read an English translation. I liked it; it was almost written like a poem. I tried to find some other things in the library, but the books were limited (a collection of artists) or an academic essay collection. I did see other books online. I did not see the animated biopic yet.

Mets Update

While other fun was going on, the Mets lost (with the help of more than one ex-teammate) to the Braves. April fun over with May troubles? Well, can't win them all and the Braves are a good team (if slow out of the gate).

Various story lines all the same. And, Keith (medical issue) is still not in the booth, Gary again calling the game with Todd Zeile (okay if boring). It apparently isn't anything too serious.  He checked in remotely to comment on the ESPN Sunday Night broadcast (they have a thing where ESPN2 or something have further live commentary)

Trevor May after the game admitted he is playing hurt. The team is now 0-2 without Buck (first time it was a medical issue; this time he was suspended for allegedly inciting a pitcher to hit a Philly on Sunday).  I did not watch the Sunday Night game -- checked in a few times - but the Mets offense picked up Max (four runs).  ESPN games are generally boring, underlining the value of a good announcement crew. 

Looking at a video, Yoan Lopez threw some balls that looked suspicious, the key issue being that the teams were warned. The umps didn't toss either Lopez (already famous for sending a message to Cards after JD Davis was hit) or Buck. So, it's curious that the league did so after the fact.  

I understand it looks suspicious, especially a second time (the Mets are upset since -- small sample size noted -- they are notably leading on players hit this season), but does this not also sorta make the umpire crew look bad? Talking umps, from the re-cap of the Braves game:

Bassitt said umpires are better than people give them credit for, and he respects the accountable and off-the-record conversations he’s had with umpires ever since they began checking pitchers for sticky stuff last season.

That's generous of him (an umpire who seemed to make a bad call also appeared to make a gesture admitting he made a mistake).  Calling balls and strikes is a matter of making over a hundred calls a game.  You are going to blow a few. It's a part of the game.  Bassitt has had some good soundbites, including saying the league knows the balls are hard to grasp but don't care.  I am not sure why Mets particularly are being hit though.

Lopez was suspended for three days.  He's in the minors at the moment though I guess they could have called him off last night so he could be done (with a double header today).  A first step is cutting rosters required the Mets to make a couple moves.  Lopez was an easy one (he was only up anyway since another marginal pitcher got hurt).  But, what hitter?

The obvious move in the minds of many was Cano, except for that darn 40M, and intangibles like teammate presence and the GM having a long relationship with him.  If you recall, he was basically part of a package to get a closer, though it was felt he could help the Mets win now.  And, he did well in the first season.  Then he cheated.  Oh well.

The owner, a billionaire if you recall, decided that the smart baseball move actually should be taken here.  Good for him though again it wasn't really a hard call baseball-wise.  The other options had various valuable uses though JD Davis was somewhat less useful (if he became hot, he would be good off the bench, but defensively, he is less useful than Smith and Luis G.).  

As to the intangibles, okay, I will respect that somewhat, but as one analysis noted, the team already has some vets.  It isn't some young team.  Plus, maybe it is a good message to send that an over the hill player who cheated (if it looks like admitted publicly it was a mistake, saying the right things, unlike some who try to b.s.) is let go since it is the right baseball move.  The Mets too often did not do that.  So, kudos.

If the Mets are a bit more honest about things, I would truly think they are a whole new team.  Along with injury woes, well, we wouldn't want to totally not be able to recognize them. The other thing is that the GM has a few questionable things in his past, letting some dubious characters stay in place, so I'm a bit wary of him.  But, again, the Mets made strides. 

Anyway, as compared to abortion rights and all that, baseball drama is just that.  A few times, there are important human stories involved, so it isn't all just a game.  It overall tends to be.  Which is one reason why it is a pleasant way to entertain oneself among everything else.  

ETA: Mets sweep a DH, so they will at least split another series, not losing one yet.  Peterson spot started and flubbed a ball, giving up a HR after.  But, the Mets hung on 5-4.  The late game was a eight inning gem from "Cookie" with the Mets winning 3-0.  

Split it is with a horrible sixth.  

But, to update again, the Mets avoided another bad game by winning 8-7 vs. the Phils. It surely looked bad, down 7-1 in the ninth.  But, Trevor Williams had mop up duty in that bad game, so the call up was able to go 2.2 scoreless.  Toss in another shutdown relief effort earlier after a bad four from Walker, Buck decided to keep his regulars in the game.  

And, the Phils bullpen (after Famalia pitched a good eighth) showed one of the reasons why I still don't trust that team.  The Phils were no-hit by the Mets (group effort) and now this.  How to top it?  A rain out delayed seeing what, but even if the Mets had a few blips after seeming never to have a bad game, they still are looking like a team on a mission in 2022.