August Primary In NY

I recently received a piece of campaign advertising from Miguelina Camilo, who is running for the newly created state senate seat covering my residence. I won't be covered by the district now represented by Sen. Biaggi (though before the lawsuit, looks like this was the seat MC was running for) and she's running for the House of Representatives (she can't run for both at the same time).

The Bronx Democratic Party and various other familiar names, like my former councilman, are endorsing her. The person who currently represents a chunk of the area now is running, but they decided not to shift their endorsement. He seems a good guy, with various strong social justice beliefs. Gustavo Rivera has been in the state senate for about twelve years.

The Camilo campaign letter basically let me know she supported general liberal causes and that she is an immigrant.  I'm inclined to support her since she has the basics, I like women and immigrant representation, and Rivera was there for twelve years -- some change is nice.  And, the local endorsements she received suggests she is decent enough.  

OTOH, the campaign letter said I asked for an absentee ballot.  I did not (I did in the past when COVD first came).  It looks like Rivera is flagging any limited red flags, like an "endorsement" of a member of the dastardly (Biaggi defeated the leader) IDC.  Articles also use things like "cautious stance" that suggest she is trying to be a smidge less liberal than Rivera. 

I checked the discussion on the first thing and it does not really seem to be very notable, especially since she is a political newcomer who at the time had limited power (a $200 campaign donation doesn't tell me much).  And, it looks like Rivera himself had a little slip-up.  But, then again, Biaggi did endorse him.  I can understand, given his past actions.

I'm a bit torn on who to vote for.  It also seems to be the only thing I will have to worry about in the August primary, since it looks like the House seat won't be a contested Democratic primary.  Yet again, why couldn't New York combine the two primaries, and just have both in August?

Anyway, a two person race is not one that will be split many ways. Biaggi's BFF, however, is in such a race.  So, this argument that House seats should be majority wins (not plurality) applies there.  And, I agree this is an important thing, one that can be done by some sort of instant run-off system.  

Why should a race that can effectively be the one to decide a House seat (especially for special elections where it is one and done) be decided by under 40% of the already small electorate? 

Wrestling with Religion in Law

Since they stopped allowing comments [which seems a trend] at all around a couple years ago, I stopped regularly reading Sandy Levinson's blog. I find multiple people who blog there somewhat annoying. But, at times, there are interesting things there, including discussions over some book.

The latest, which I did not read comprehensively, is about a Levinson's old book (is there an update?) Wrestling With Diversity. I actually own a copy, buried somewhere.  Levinson was basically my first online reading, his "embarrassing Second Amendment" article something I printed out at the library before I even had dial-up Internet.  I exempt here my bulletin board experiences from c. 1990, which had some back/forth that are still standard.

I disagree with Prof. Levinson on various things, but that was fairly easy, since his blog posts were really a chance for him to basically free associate his concerns about constitutional matters and so forth.  But, his views also are interesting, and not standard liberal cant at times.  The book cited are really as I recall a bunch of essays about diversity, praising it, but saying it should be full-fledged, covering all sorts of views and peoples.

As one member of the discussion notes:

In the last chapter of Wrestling with Diversity, Sandy and Rachel Levinson ask ‘why should practices rooted in religious belief be treated differently than "cultural norms," whether for good (…) or potentially even for ill (…)?’. Their conclusion can be fairly summarised as stating that religion and culture are not really distinguishable so that there is no persuasive reason for treating the former differently from the latter.

My view here is twofold. First, and I realize he is speaking in part as someone who pushes back against the Constitution, religion is specifically included in our constitutional system.  The Constitution is addressing our current reality, and religion remains specific here, separate from "culture" in general.  The citation of alternative Chinese medicine is covered by constitutional concern about race based classifications, anyhow.

The other is that "religion" is appropriately defined in an open-ended way.  The comments there basically agrees with that sentiment, citing some open-ended liberal view of "belief" factoring into how a person can create their lives. This came up in the Dobbs abortion case though only the dissent truly honored the principle.  And, then, you can try to define that.

Such an open-ended version is tricky and when it touches upon public matters, we should allow more opening for public regulation. This underlines the "right to privacy" hits upon something important, even if line drawing (what else is new) is difficult.  All the same, again given our current Constitution, this still allows (and warrants as good public policy) some discretion based on a broad view of "religion."

So I have argued for regulatory exemptions for religiously motivated behavior, subject to a stringent but not insurmountable compelling interest test. I have argued that when government chooses to subsidize private providers of secular services, including education, it may and must fund secular and religious providers on equal terms. And I have argued for full and rigorous protection of private religious speech, including in public schools. But I have also argued that government should never take sides on disputed religious questions, which means that it should not write or lead prayers, give any sort of special or preferential access to religious speakers, or erect or sponsor crosses, Nativity scenes, Ten Commandments monuments, or other religious displays. 

This sounds fair on some level though it simply isn't how it is now applied. So, his approach in the Town of Greece case (where he basically tossed the atheists under the bus) was rejected.  The "must" part also clashes not only with certain states with stronger separatist traditions, it is also to be a bad approach. It also is question begging.  I went to Catholic schools.  They were not purely "secular" services.  And, I did not know he took a full Marsh v. Chambers position anyway.  

My heart supports a strong separation of church and state. Nonetheless, I understand and probably can support various funding of sectarian institutions in some cases.  An early case involved bus fares (I myself had a bus pass that was good for public buses when I went to a Catholic high school).  Cases in the 1970s split in various ways over maps and field trips. It got a bit silly.  I would allow some discretion there; the "must" bothers me.

I'm not appalled at tax exemptions for churches, since the exemptions are not only for churches.  If they want the exemptions, it is not outrageous (though realistically this is not what happens) for them to be required to avoid political advocacy.  On some level, that does seem wrong -- religious belief overlaps with social and political causes.  Some churches are liberal, some conservative.   The reality basically is that the government keeps out of it, unless a church is blatant.

The line drawing there should be reasonable and again it's okay if there is some discretion [a conservative might appeal to originalism to argue the 1A gives states discretion] on how to do that.  A case in the 1960s involved books. Maybe, it is important to ensure that the government should give the same books to each school.  As James Madison noted, even an "evenhanded" rule will benefit large denominations. That might be fine as a matter of the so-called free market.  But, when the government is involved, funding that benefits a few denominations is tricky.

And, as with all line-drawing, people can carp on the lines.  The lines should be reasonable and reasonable differences of opinion will arise.  Note the last part.  I think it is sensible to not have government supported religious displays.  Not the rule any more (if it ever completely was). But, at the very least, there should not be favoritism.  This is the general idea in certain 1980s cases, cases at times ridiculed for dividing over minutiae (the so called "two reindeer rule" popped up).  

In some parts, especially since the term is often selectively applied ("Christianity" is major case here -- it isn't "conservative evangelical" by definition), the idea we should respect "religion" is seen as ridiculous. Some like to ridicule "imaginary sky gods" or the like. I'm not in this camp, especially since millions upon millions of believers are on the side of sanity.  Religion is a basic part not only of our history, but of humanity.

The trick is to determine how to define and apply it.

SCOTUS Watch: Beard-Lito and An Execution

In related news, Justice Alito is now sporting a beard. pic.twitter.com/SHigxGbD3j

— Howard Bashman (@howappealing) July 28, 2022

So, Justice Alito has a beard, while giving some grumpy, conservative in nature remarks about religious liberty at an event sponsored by Notre Dame, including taking potshots at various foreign leaders critical of SCOTUS.  This is what is seen as appropriate behavior, making the U.S. government look like a bunch of clowns.  

[And, again, there is a speech page on the website, if never used.]

Some of the usual suspects claim Justice Thomas is "canceled" since he decided (perhaps because of controversy) not to take part in some seminar or whatnot he planned to be involved in.  The controversy arising from his actions, including voting to strip women of basic rights.  

==

Alabama is set to execute a man Thursday evening who was convicted of killing his ex-girlfriend nearly three decades ago, despite a request from the victim’s family to spare his life.

A horrible crime, but it's not in the public's interest to execute him at this point.  As Justice Breyer long noted, there are various problems with waiting so long to execute someone.  And, we are often told to "think of the victims," except when the victims are against the execution.  

For some reason, Joe Nathan James (following the required three name rule) acted as his own counsel at the end.  The final pleadings are somewhat raw, but seem credible enough, especially since this whole thing tends to be Hail Mary stuff anyway.  One creative claim: since the children want mercy, he has a religious liberty right not to be executed.

There were another arguments made, including yet another claim that he should be executed by nitrogen gas, the state arguing all such claims made too late and without merit. The time lag and victims not wanting an execution is key here in my book.  Way to help the victims.  

Reply from SCOTUS:

The application for stay of execution of sentence of death presented to Justice Thomas and by him referred to the Court is denied.

Your criminal justice insights are appreciated Justice Jackson. After waiting thirty years to execute the guy (over twenty after sentencing him to death a second time after an appeal), they couldn't smoothly handle things.

The State of Alabama has executed Joe Nathan James, Jr. The lethal injection came after a significant delay. We are waiting on the ADOC commissioner to provide comments and answer questions.

— Lee Hedgepeth (@lee_hedgepeth) July 29, 2022

The fact this guy was his own lawyer at the end alone warranted a statement from at least one justice. I realize the liberals pick their spots, but each execution really warrants a statement at least.  And, this one had multiple things red flags.  Oh, what was the comment?

Alabama Department of Corrections Commissioner John Hamm would not provide an explanation for the delay in James' execution.

A female member of the media also was flagged both for a skirt [which she wore in the past] and shoes, but was able to obtain alternative gear. Another person passed muster.  

This received some ridicule, as it should, though bottom line full disclosure on why there were delays to me is more important.  That involves full due process for the executed person and the appearance of integrity, which is very important.  

The coverage vaguely suggests the delay had something to do with getting the court mandated protocol right.  Why not just be fully upfront about what happened?  It's a sensitive matter and appropriate to be full aboveboard.

Here's a good comprehensive account of the execution.  I get a sense the reason he was pro se at the end is that he had problems with his lawyers in the past.  There are references to him talking to lawyers, even if he himself ultimately wrote the final petitions. 

==

Adam Liptak (in an article dated yesterday), head SCOTUS reporter of the NYT now that Linda Greenhouse retired, wrote about a joint interview of Barrett and Sotomayor ("Justices Sotomayor and Barrett Say the Supreme Court Remains Collegial").  This probably warrants comment.

Sotomayor has -- at times going all in [remember that "shocked people are doubting my friend Gorsuch" joint letter in the midst of the mask controversy?] -- has joined the in modern times tendency of the justices to praise each other's professionalism and collegiality etc. publicly.  

But, they have not shown "fundamentally" that they are "good people."  So, especially now, I'm not really in the mood.  I really don't want it to be part of an interview by  Professor Akhil Reed Amar, who wrote “A Liberal’s Case for Brett Kavanaugh."  

The interview was from May, ten days after the draft leaked, and for some reason is being made public now. Again, if anything, I'm more pissed off at it now.  I figure Justice Jackson will follow this path to some degree, especially since first years often are toe in the water deals.  But, darn, would have been nice to hear her perspective Thursday night.  

==

We will have the first summer order list  next Monday.  Likely to be not very noteworthy.  But, who knows.  

And, to toss everything in, there was another edit, this time to correct a name (if used three times) in the guns opinion.

How to Talk to a Science Denier

A local library had a cart with free books, which I noted was a thing these days for NYPL. This one had multiple copies of "uncorrected page proof" copies, which sometimes winds up on the nearest library's free cart, but this was a case of multiple copies of different books. The subject book, now out for real, was one of these books. Here are multiple reviews. 

How to Talk to a Science Denier: Conversations with Flat Earthers, Climate Deniers, and Others Who Defy Reason.  I found various good things in it though was not interested enough to read through the whole thing.   The reviews cover much of this ground. 

For instance, there are various factors involved in science denial: cherry-picking evidence, belief in conspiracy theories, reliance on fake experts (and the denigration of real experts), logical errors, and setting impossible expectations for what science can achieve.

[These are general concerns in various respects, in part since humans are not scientific minded robots. We have some design fails.  One example is a blog often noting court opinion analysis is really not important, the results are.  But, then, apparently how Kennedy in a purple prose way badly defended gay rights.]

The title is suggestive.  Yes, the author thinks "talking" helps. He [a research fellow at the Center for Philosophy and History of Science at Boston University] rejects some earlier accounts that trying to convince deniers would simply be counterproductive in each case, that they will just bury into their positions even harder.  There are ways, he says, to combat things here.  

A basic thing is to understand your opposition. Why denial?  It is often a coping mechanism to deal with a scary world or to fit evidence into a certain ideology.  Having "secret knowledge" also might make you feel special.  It often is tied to a specific "identity," which is often but not always (GMOs, some anti-vaxxers) conservative in nature.  

[It is hard to suppose that liberals cannot be science denials. I know liberals as a whole are pro-science, but they also often are more about equality, against corporate power, and so on.  Denial can seep in here, including conspiracy theories and fears of certain science that can become extreme.]

The author suggests a compassionate, engaging approach. Listen.  See what their beliefs are and what would allow them to change their mind. Help them out with such things as charts, graphs, and friendly conversations about basic facts.  Help promote basic science knowledge, and flag not just facts, but techniques used to mislead.  Like the debate book, education is important here.

And, be honest -- admitting we do not know the answers, but that should not be used crudely, in irrational ways against science, can help build trust in the end.  You should use inoculation (guarding against the future), intervention (dealing with current problems), and acting overturning belief.  

This is all difficult in the real world.  Some people (the book makes some suggestive implications "denial" as a whole overlaps -- such as white nationalists, but ultimately pulls back to science)  just seem like lost causes. They can be be offensive (being wrong and an asshole about it is so charming).  And, you have to be skillful.  Debaters of creation scientist, like atheists who debate Christians, have to have special skills. 

Over the years, I have tried to directly engage with certain people on blogs, answering their arguments. This is often a tiresome thing since unreason is so much easier.  You don't have to do careful research and phrasing, which can take a lot of time and effort.  Nonetheless, I did (and to an extent still do) feel it useful (or at least it pleases me, also allowing me to put out my own views) to directly respond to people in detail.  

And, I try (though it is sometimes not easy) to avoid simply sneering at people.  I am no saint, but I don't actually find that a pleasant thing to do on a basic level.  Again, I realize my limitations. On Twitter, I do a lot of grievance tweeting.  I often don't put out a "you can engage him" vibe.  I do try repeatedly to show nuance.  I do try also to put out information without a heavy handed agenda.  Up to a point. 

And, yes, I think science denial overlaps with other things, especially since we are often in some sense talking about social science anyhow.  So, the book can have broad value.

A Couple Books

I found the book dovey coe (not capitalized on my copy, but is are others) on the free rack at the my local NYPL library. This is a good resource. People can donate books and it amounts to a book trading system. For some reason, the system doesn't want them to have book sales. People also at times leave DVDs and music CDs.  A few VCR tapes too.

The Wikipedia summary works: "Dovey Coe is a children's historical novel by Frances O'Roark Dowell, published in 2000. Set in 1920s North Carolina, it is a first person narrative from the viewpoint of a mountain girl who wants to clear up confusion about a recent murder."

The book is basically a YA book (it's told through the first person perspective of 12 year old girl), but it is not so simplistic that adults will not enjoy it.  The time period is not really focused upon much, except things like television and the like aren't around.  For instance, a key character abuses alcohol.  This being the Prohibition, this is more notable than the book really suggests.  

The book focuses on Dovey Coe's life in the first part of the book, including her relationship with a deaf brother and an older sister.  The murder trial stuff comes in about the last third.  There is a pretty scary scene involving Dovey and the person who winds up dead.  The book also provides a bit of a message about playing with people's emotions, that is, her sister's use of her beauty to manipulate others.  

Overall, I enjoyed the book, and think many others would as well. She is a down to earth character with a good set of values (reflecting those of her parents).  I'm not really so excited about it that I plan to go out and read more of the author (the book was from around twenty years ago).  

===

I don't recall -- probably something on C-SPAN or maybe online -- when I first saw Kristen Ghodsee.  But, she has written around ten books, mainly focused on her specialty of examining East European socialism, particularly Bulgaria.  One catchy title suggests women have better sex under socialist regimes, with the better welfare programs and equality.  

I read several of her books, several available in the libraries I have access to these days.  So, I was glad to see a new book was coming out, and now it is available. Red Valkyries: Feminist Lessons from Five Revolutionary Women covers three (including Lenin's wife) women involved in the Russian Revolution, a WWII sniper, and a later leading Bulgarian socialist, who the author herself got to interview and meet.  

The book is under 200 pages -- Ghodsee's books tend not to be long -- and approachable for the general reader.  The Bulgarian woman was also addressed in a previous book, with details on her experiences as a teenage partisan during WWII.  Ghodsee's books provide some respect for socialism. I'm reminded some of Goodbye, Lenin. I'm writing a longer book review for the book review website.  

The book ends with a a chapter providing nine lessons (comradeship, coalition building, self-education, relaxing etc.) to be learned from them.  That seems a bit like shoehorning a separate thing in, but it's a good chapter.  She also has a touching/amusing discussion of why she dedicated the book to her dog.  Good addition to her works.

Jan 6th Committee Mid-Summer Finale

We had a sorta mid-season finale, to use the lingo, of the 1/6 Committee hearings with another prime time showing. There will be more, the chair (remotely, since he like President Biden, has COVID) upfront announcing more hearings in September. This left Liz Cheney as the chair in the room while Rep. Elaine Luria (another vet) getting some time in the sun. 

Rep. Luria (a Generation X member), for instance, got to show Sen. Hawley running out of Congress is a rather to be un-PC, he looked like a sissy.  This does not only have amusement value.  His infamous fist shake at the protesters was supposed to be his rode to MAGA cred.  As we see him "scamper off," this outrageous act of egging on protesters -- protesters the hearings showed Republicans already knew were not just peaceful types -- should have consequences on him personally.  

The basic focus of the hearing was to show Trump not doing anything to stop the invasion of the Capitol for over three hours (187 minutes).  If anything, while he watched FOX and multiple people (including the House minority leader and his own children) basically begged him to do something, he made things worse.  Early on, after he knew the invasion started, he tweeted his infamous tweet against Mike Pence.

In fact, and the raw video also makes him look embarrassing ("yesterday" was a hard word for him to say), we see that even on the day after that he did not want to say Biden won.  He was only willing to say that Congress formally announced the vote.  One of the witnesses, Sarah Matthews, the former White House deputy press secretary, focused her disgust at talk about not him wanting to use "peace" in a tweet to the protestors.

The other witness was Matthew Pottinger, the former deputy national security adviser, who reminded me in both appearance and manner as a sort of Dan Quayle type.  He still noted how proud he was to serve in the Trump Administration.  And, yes, in answer to one online, I can see him voting for Trump again if it was Trump v. Biden in November 2024.  

Some are concerned about the important role Liz Cheney is playing here. The reality of the situation is that she is doing a good job and provides a message that this is not just a partisan witch hunt.  There was some feeling toward the end -- her closing statement was rather long this time -- that she was trying to argue there are good Republicans, including good Republican former members of the Trump Administration.  This is rather unclear.

There are Republicans who are showing some spine. One who is not is former chief of staff, Mark Meadows, whose stonewalling without apparent punishment so far is aggravating.  Steve Bannon was just convicted for criminal contempt, but we are still months away from sentencing, putting aside a possible appeal.  Trump's stonewalling of Congress was even an impeachment charge, if one that seems to have gone down the memory hole.

The whole thing was bullshit. The Trump officials appeal to use of litigation and then during litigation claim total immunity. Oh, and offer impeachment as a possible alternative.  But, when Congress moves in that directly, even early stages of investigation, it is a partisan witch hunt and violation of due process. We should not take this seriously.  

People have dreams of Congress sending a marshal to arrest people here and put them in some sort of congressional jail or something.  To me, the sensible thing is for Congress to have some sort of inherent contempt, not needing to rely on the executive branch that times will be at cross purposes -- concerned themselves about executive flexibility -- and use monetary fines as a means to apply pressure. And, decide things quickly, within months at most.  

A basic concern here is that Republicans will regain control in November and then the shoe will be on the other foot.  But, at some point, you have to bite the bullet.  This also shows the value of special mechanisms, including an impeachment investigation, which can put the edge more on the congressional side.  Still, not even wanting to show up?  Hillary Clinton did so. You are going to have to do that even if the Congress is in troll control.

Cheney's final message was that we can not trust Trump with power any more given what he did.  This should be expanded to all of their enablers. She at one point noted that the hearings would have gone basically the same even with the original Republicans chosen for the committee. Sure. Having the likes of Jim Jordan wasn't going to cause problems.

People who don't like Cheney getting so much air time -- other Democrats have some too -- like to call the opposite side Nazis.  Well, we worked with the Soviet Union to defeat them.  I think Cheney can be used now.  But, yes, we should be wary.  The appeal to "good Republicans" and leaving an opening to "move on" without enough full accounting is something to be wary about.  

===

I find it depressing and almost giving oxygen to something that should not be given it, but guess I should add a bit on Rachel Maddow's bit on the Garland memo regarding investigations in an election year.

As one review noted: "Rachel Maddow reported the exciting news that Merrick Garland released the same memo that Attorneys General always do during election years."   No.  We are supposed to be APPALLED at Garland. Fire him!  Biden should have picked someone like Doug Jones ... who tweeted a video reminding people there is nothing to see here. 

Back to the Bush43's firing of U.S. attorneys, one in particular who was in part fired for not indicting someone during a campaign, the possibility of prosecutorial abuse has been cited multiple places. One discussion by Alex Kozinski, before citing him became in bad taste, about prosecution abuses cited the issue.  We were mad when Comey violated it.  

I did not watch the segment, I admit, but at this point am tired of Rachel Maddow's extended emoting entrances anyways.  The memo was dropped earlier this year, sensibly as the mid-term election cycle started to go in full swing.  Oh no!  It cited a Barr memoranda saying that the Attorney General has to sign off on an investigation of someone like Trump.  Just as you would expect.  Anyway, the investigation already started.

I STILL will not believe Trump will be prosecuted until I see it.  I STILL am wary about the speed of certain investigations. But, the Watergate investigations took years.  Five years or so; and they were smaller in scope, without an insurrection with over a thousand participants alone.  

I basically block everyone on Twitter who shows that meme with Chris Farley screaming at Garland to arrest someone ... after lots of people, including top people ... were arrested.  Multiple people were charged by Mueller, until Barr and Trump blocked it, for those who sneer at him too.  

To the degree Rachel Maddow is aiding and abetting this despair that in various cases is probably aided and abetted by trolls, I say "get behind me Satan."  And, as we moved past chattel slavery and a bunch of other things, the idea we won't be able to survive the current times? Grow up.  

Oh, Garland and the Justice Department said the investigation goes on and they will not let an election campaign stop that. And, things will be taken where justice warrants.  Not that this will satisfy those who wish not to be.

Substantive Due Process

The doctors accordingly arouse the skepticism of those who find the Due Process Clause an unduly vague or oxymoronic warrant for judicial review of substantive state law, just as they also invoke two centuries of American constitutional practice in recognizing unenumerated, substantive limits on governmental action.

Justice Souter's separate opinion in Washington v. Glucksberg is an excellent discussion of substantive due process. The opinion shows the principle arose before the Civil War in a range of cases, including in the Supreme Court.  One early reference in the Marshall Court (maybe fleshed out over some wine) defined due process of law (there applying a state provision) thusly:

As to the words from Magna Charta, incorporated into the Constitution of Maryland after volumes spoken and written with a view to their exposition, the good sense of mankind has at length settled down to this: that they were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice.

The first application of the Fifth Amendment provision might be Bloomer v. McQuewan (1852), which interprets a patent law a certain way to avoid deprivation of property rights.  This was before Dred Scott v. Sandford, the infamous slavery ruling, which is regularly used to targeted substantive due process. OTOH, the Republican platform of 1860:

[T]hat as our Republican fathers .. . ordained that 'no person shall be deprived of life, liberty or property without due process of law' . . . we deny the authority of the Congress, of a Territorial legislature, or of any individuals, to give legal existence to slavery in any Territory of the United States.

Two articles talking about the "originalist" meanings of due process can be perused for those interested. One argues that substantive due process was well recognized by the 14A, but not so much for the 5A.  Either way, there was an understanding in antebellum times of some sort of unenumerated rights protected in some fashion. For instance, "The fundamental maxims of a free government seem to require, that the rights of personal liberty and private property should be held sacred."  

The "father" of the 14A in the House, John Bingham, also was known to support an open-ended view of due process:

Your Constitution provides that no man, no matter what his color, no matter beneath what sky he may have been born, no matter in what disastrous conflict or by what tyrannical hand his liberty may have been cloven down, no matter how poor, no matter how friendless, no matter how ignorant, shall be deprived of life or liberty or property without due process of law-law in its highest sense, that law which is the perfection of human reason, and which is impartial, equal, exact justice; that justice which requires that every man shall have his right; that justice which is the highest duty of nations as it is the imperishable attribute of the God of nations.

This in part was inspired by Daniel Webster's argument in the famous Dartmouth College case.  A close reading shows, and this comes up in certain state cases as well, that there is a certain equal protection ("impartial, equal, exact justice") component.  There is sometimes an argument made that it is dubious for the Fifth Amendment to be given an equal protection component when there is a separate Equal Protection Clause.  Nonetheless, there was understood to be one there.  

Justice Thomas in Dobbs v. Jackson wrote separately to underline the argument of some (even some who support an open-ended view of fundamental rights) that substantive due process is absurd.  Nonetheless, there is a deep history here, one where a clean line between procedural (can be denied if done with a fair hearing and such) and substantive (a fair procedure might not be enough) is not present.  

The "substantive" concept was referenced back in 1897 by a unanimous Court (on this matter) in an opinion by Justice Harlan (honored sometimes) that incorporated the Takings Clause.  (So, years before Republic Natural Gas Co. v. Oklahoma, referenced in one article.) Basically, the Court held that even a fair procedure was not appropriate with just compensation. To wit:

But a State may not, by any of its agencies, disregard the prohibitions of the Fourteenth Amendment. Its judicial authorities may keep within the letter of the statute prescribing forms of procedure in the courts and give the parties interested the fullest opportunity to be heard, and yet it might be that its final action would be inconsistent with that amendment. In determining what is due process of law regard must be had to substance, not to form. 

The opinion reaffirmed open-ended language in past cases such as "there [are] private rights in every free government beyond the control of the State."  Again, this principle was expressed in various ways in antebellum times, including recognition of "vested rights" which can not be removed even with procedural due process.  Marbury v. Madison made reference to this, his right to his commission such a right.

It is somewhat late in 2022 to override principles that were in place over hundred years, if not more than two hundred. Anyways, if you do not like "substantive due process," again, the basic concept generally can be secured in some other way such as the Ninth Amendment or privileges and/or immunities.  

Substantive due process is not an oxymoron. The general idea goes back to the "law of the land" of the Magna Charta. There was long an understanding that people had certain rights as part of this law, rights that sometimes were framed in open-ended "liberty" tones.  The legislature could not deprive people of such rights.  Due process was not merely a limit on the executive.  There was some broad idea that the legislature could not arbitrarily act, including by favoring certain groups over others. 

For those who want precedent with originalist language, we have Murray's Lessee (by Justice Curtis, of the Dred Scott dissent fame).  The "law of the land" reference is there. And, we are told:

It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative, as well as on the executive and judicial, powers of the government, and cannot be so construed as to leave Congress free to make any process "due process of law," by its mere will.

How does it suggest we determine the nature of "due process"? Well, look at the Constitution itself as well as those processes traditionally found to be proper under the common law.  The Court looked for those transferred from England that were not "unsuited to their civil and political condition by having been acted on by them after the settlement of this country." 

This would in time develop into the commonly framed definition of due process, including "implicit in the concept of ordered liberty" and "so rooted in the traditions and conscience of our people as to be ranked as fundamental."  Again, the trope of carting out Dred Scott as if that is where this came from is tripe on a basic level. It is about as bad as using that case as a reason to be against originalism because it was done wrong there.

Justice Curtis in that case answered the limited due process component of the majority opinion by noting that slavery was a product of the positive law of the land where it exists.  It is not like life or liberty, an inherent right we always have.  Slavery could be banned.  Something like exercise of religion or caring for children is different.  The answer is not that "due process" is merely a procedural protection, full stop. 

Justice McLean separately noted that a slave is not mere property, but a being with spirit, "A slave is not a mere chattel. He bears the impress of his Maker, and is amenable to the laws of God and man; and he is destined to an endless existence."  He also explained how Congress could ban slavery in territories. Congressional power here shows that due process was not violated in the process of the Missouri Compromise. 

Early cases often were concerned about "property," but the term in time had an open-ended quality.  The protection of private property could include the protection of private lives. The Fourth Amendment reflects this principle as noted by Griswold v. Connecticut.  And, the same overall protections could be used against slavery and individual liberty overall.

For those who want to appeal to originalism, again, it seems that at least by 1868 that "due process of law" had a substantive aspect. Surely, by some provision (maybe the P/I was deemed the main one) a strong protection of individual liberty and property was believed to be present. The dissents of the Slaughterhouse Cases (1873) ultimately was recognized as correct on this general principle, even if the state interest there was valid.

But, we still debate these things somehow.  Well, there are various arguments that go back to ancient times. Why not this?

SCOTUS Watch: Justice Jackson Has Her First Dissent

“Overall, the way the court retains its legitimacy and fosters public confidence is by acting like a court, is by doing the kind of things that do not seem to people political or partisan, by not behaving as though we are just people with individual political or policy or social preferences,” Kagan said.

Justice Kagan spoke at a conference of judges and lawyers, trying like Sotomayor did in another event before Dobbs to retain respect for the Court.  Sotomayor had shades of Breyer, telling people you have to stay positive, even if you want to fight for change. I have not seen the video, but seems to have a slightly different vibe.  

I re-read Eric Segall's Originalism As Faith book, which I own, after skimming his Supreme Myths  book in the library a few months back.  I do not agree that the Supreme Court is not a "court," especially since he was not specifically talking about this one.  It very well is not acting like a good one.  And, that is a major problem.  Term limits won't solve it.

(Again, I'm fine with them. Good idea.  Sane idea.  And, I agree with the op-ed that it probably requires a constitutional amendment. That sort of addresses another fear -- that term limits will be seen as a way, mostly by itself, to lower the temperature, and nothing else really will be done.)  

The second book does more to address the reality that his preference of very limited judicial review can have problems with protecting minorities. The first book simply did not address hard questions, other than the usual "I'm consistent" bit on abortion, which recently he seems to have changed his mind about anyway.  The second, however, has issues, including again basically exaggerating the lack of "originalist" reasoning in certain cases or making shoddy mistakes like calling Griswold a plurality opinion.  

But, you are talking to the choir regarding the shoddiness of originalism. The whole enterprise is ridiculous. It also focuses a lot on 1787 and a bit on 1868 as if that is the only times when constitutional action took place.  One thing missed by the book, however, is that originalism claims to be an overall principle. That is, it isn't just for judges.  So, and Segall admits his way won't happen so pushes for honesty, judicial restraint isn't enough there.  Legislators as much as anyone else have to apply the Constitution sensibly.  Using what we know today.

The Trump Administration asked #SCOTUS for stays of district court injunctions in immigration cases 12 times from 2017–21. The Court granted *11* at least in part (but ultimately affirmed only one policy on merits).

Between this and MPP (which U.S. won on merits), Biden is 0-2. https://t.co/207stczrvE

— Steve Vladeck (@steve_vladeck) July 21, 2022

The Supreme Court decided to give Kagan an immediate example with another shadow docket ruling. You can read about it various places. Ultimately, a Texas district court judge (again) handed down a horrible decision restraining federal power, applied across the board, and the Supreme Court left it in place.  They will hear arguments in December, but we saw how that played with SB8.  

As noted  by the Washington Post:

In September, the Department of Homeland Security directed U.S. Immigration and Customs Enforcement (ICE) officers to prioritize the detention of recent border crossers and immigrants who pose a threat to national security and public safety, and to consider giving a break to immigrants with mitigating factors, such as farmworkers picking crops and grandmothers caring for American children.

Prelogar said the Supreme Court should at least limit Tipton’s order to Texas and Louisiana. Some justices in the past have criticized district judges for imposing nationwide remedies. “For most of our Nation’s history, a suit like this would have been unheard of,” Prelogar wrote.

The Solicitor General argued the whole thing was outrageous, and it is so much, as shown by the fact Barrett joined the liberals supporting a stay.  But, you need five for a stay. So the men beat the women here.  The order didn't explain reasons, neither side did (have to practice what you preach, Elena), but tossed this in, which almost came off as a troll:

The Solicitor General suggested that the Court may want to construe the application as a petition for certiorari before judgment. Doing so, the petition is granted. 

Perhaps, the author of the order is a fan of Princess Bride.  Anyway, this whole thing brings to mind the whole issue of national injunctions (which again conservatives selectively seem not to mind about) and the power of a single judge to apply them. The legislative change where injunctions would be assigned to a three judge court in D.C.  sounds appropriate.

===

Meanwhile, the House of Representatives passed a bill (with a lot of interesting findings) supporting contraceptives (eight Republicans joined)  and same sex marriages (forty-seven; this one likely will pass Senate).  The second involves federal benefits and recognition, and tosses in discrimination by race, ethnicity, and national origin. To toss it in there, good opinion piece against Dobbs by a male minister.  

The same sex marriage (and more) bill is an important statement by our national legislature in support of equality.  It is a reverse DOMA.  Congress has power under Art. IV to rule upon full faith and credit rules as well as a general right to regulate federal benefits. Only a strong state rights' position would hold what it did was unconstitutional.The protection of contraceptives is wider, though the bill spells out its backing.  

[ETA: The conservative Republican candidate for New York governor with an openly lesbian  running mate voted for the marriage bill -- sorta hard for him not to do so -- but voted against the contraceptives bill.  This made him basically par for the course regarding New York Republicans in the House delegation, but is a rather clear signal about what he stands for when people decide to vote this year.]

===

Welcome to the Supreme Court, Justice Jackson.  It is basically as expected that the first open decision you make is a dissent.

Another order dropped that split apart two affirmative action cases.  The reason is clear, if not expressly noted: Justice Jackson will recuse from one (she did not take part in the Harvard part of this order) as she said planned to do.  The likely result will be the one she will take part in will be decided 6-3 (or whatever), and the result will apply to the other per curiam. 

When Sotomayor recused in a case involving the Electoral College, this is what they did.  Anyway, three orders this week. Busy!

Leprechaun 4: In Space

Leprechaun is a not very good horror film that was also Jennifer Aniston's first film role. The leprechaun himself was in other "straight" films like Willow. It turned out also to be the beginning of a long film series, the last two without the original star.

I caught part of this film late at night early this week. And, that is a good time to watch this rather ridiculous, but fun in the right frame of mind, film.

Good Arguments: How Debate Teaches Us to Listen and Be Heard

Good Arguments: How Debate Teaches Us to Listen and Be Heard by Bo Seo, a champion debater from South Korea and Australia, is pretty good. I found the discussions about his debating experience a bit tiresome after a while. Great. You won another debate in some worldwide locale. Fine. 

But, he provided various rules on good argument that I found helpful. For instance, the RISA rules:

1. Real (actual dispute) 
2. Important (worth disagreeing about) 
3. Specific (clear what we are fighting about)
4. Aligned (each side arguing for same reasons 

Relatedly, when people make arguments, there are various ways to rebut them.  The person, for instance, might not have proven their case. Or, and this is something I find often useful, the argument is somewhat besides the point.  In other words, even if you grant the premise [which some rather not do], you can show that the person still did not make their case.

I found the last chapter about technology more boring.  He has a chapter about how debating is a matter of taking a specific side, which some other time might be the job of the other side.  He does not really going into the concern (though flags a few people who don't like this technique, wanting only to promote "the truth") of supporting "the wrong side."  

There is some effort to not make the resolution something really bad, but there are things various people have very strong feelings about.  Did he not ever have to debate a side he personally found abhorrent akin to a vegan needing to support hunting or a pacifist supporting militarism?  

The book overall assumes that debating helps overall, including promoting the truth.  Debate is useful in part since it allows a person to see more than one side.  The author is currently studying law, so he will see the value of this, such as if he ever has to be a law clerk and have to work on an opinion he personally opposes.  Liberal and conservative clerks for conservative and liberal judges are a known quality, and such judges see some good there in having someone who might pushback against some assumptions and will be able to see things from a different vantage point.  

The book does bring up the Trump/Clinton debates, but does not dwell too much on how much of a divided country we are at the moment. That is, the idea both sides find it particularly hard to talk to each other, to reasonably debate.  I think the fact (and I see it) one side being in power is so horrible (in part since they cannot admit to a few basic things that should not be up to debate) is a deep problem.  There is room for debate.

The book in the conclusion also briefly notes the value of encouraging debate in public life.  This would include teaching debating skills, having means for citizens to debate the issues, and so forth.  I took some further notes and again found the book helpful in various respects.

SCOTUS: First Justice Jackson Action (Or Not)

First order dropped since we have a new justice and there is some inside SCOTUS/baseball involved. Meanwhile, Breyer is going to Harvard.

The case involves "Box v. Planned Parenthood" (no not that one). It involves a request to speed along a judgment involving a law dealing with the procedures for judicial bypass (parental consent). The sort of law that could have been upheld pre-Dobbs. With Dobbs, Planned Parenthood did not resist the request. Chief Justice Roberts granted it.

It was a 7th Circuit ruling and Barrett was recused. Now, the rules would then send the request to the next junior, who would be Jackson. If the most junior justice cannot take part, it goes to the Chief Justice. Who is the one who handed down the order. So, maybe she did not take part? Anyway, she doesn't have a circuit yet.

Hardcastle and McCormick

The was one of the 1980s gimmicky (there was a fancy car here; the judge had a pick-up truck of sorts) shows produced by Stephen J. Cannell. It is the "Decades binge" show for this weekend, where the channel continuously plays a certain show on the weekend.

The idea is someone to get off from a criminal rap agrees to help a retired judge deal with a bunch of his old cases, released on technicalities (boo!) though many of the episodes did not address that. I remember watching the show when I was a teenager, though the few episodes I looked at (largely as a Mets game played) did not look familiar. Nice to know the younger guy is still getting work. He also has a lot of theater experience.

Chuck Norris' Texas Ranger show was playing as well. That is an amusing looking show, including all the big hats. He had an amusing line about "this isn't the courtroom, it's the parking lot, it's different here." Conan O'Brien had a bit where he spun a wheel and some random line from the entertainingly cheesy show (in small doses at least) played.

SCOTUS Watch

Odds and Ends: Justice Jackson is settling in (not yet assigned a circuit, the assignments made the morning of her noon swearing in). The only apparent thing (other than Kavanaugh needing to go out the back door to avoid protestors at a restaurant) that happened is a couple typos were corrected in opinions. I dropped a line in the comment box, so to speak, but the calendar is not updated to include summer orders. 

Death Penalty: Ramiro Gonzales was due to be executed by Texas this week.  He wanted to donate organs and there was some reason why that was blocked.  A lower court case also ordered certain religious accommodations to be made. An attempt was made to get a commutation.  But, in the end, the Texas courts held up his execution for the time being. This underlines that even in Texas, there have been very few executions in recent days.  There is still another execution scheduled later this month.

Dobbs: Going back to Kavanaugh, there has been continual news on abortion, including a controversy involving a ten year old rape victim. A major thing was multiple actions (adding to the Administration's statements) from the Biden Administration.  The argument "nothing" was done or that he "finally" did things here is basically a slander.  

You can argue he could do more (though I have my doubts how useful it would have been), but this general framing is a united whole of "Biden is weak" (we are even talking about 2024 elections, when we have November to worry about).  It is both wrong and horrible on a strategic level.  

Chad Meredith: There is also a continual focus (with Biden sometimes attacked in vehement ways) about some "deal" that apparently (the details are hazy) are being considered with McConnell involving an anti-abortion district court judge.  Again, the details are hazy.  Some say it is about U.S. attorneys.  

But, that is far from clear.  It very well might be about helping to confirm judges overall.  I realize it looks bad (abortion? why are we making deals with that guy?) and it's fine for the chair of the Judiciary (Durbin) and others to want answers.  It is just naive to be too mad about Biden not wanting to talk about internal conversations here.  

Bottom line, it an asinine concern on some basic level.  The Senate still has to confirm the guy.  It doesn't have to be put to a vote and meanwhile more judicial nominees were dropped.  Yes.  There are a lot of people in the queue here.  Why don't we focus on getting them confirmed right away, especially if (as some seem to grant as a given) you think Democrats will lose control of the Senate by January?  That is where the focus should be, including summer recesses (I saw something about August as a whole) delaying things.  Dale Ho is one major name still pending.  

The Supreme Court is a travesty now, but lower courts will remain very important with even district court judges have a lot of power. So, we need to confirm as many judges as possible.  That is not hazy at all.  

[I now see the latest is that ... get this ... RAND PAUL's opposition for now has put a kibosh the the deal.  Again, we are told "no deal" just a "personal favor," but suddenly we are supposed to take this at face value and get all upset at Biden being all buddy-buddy? Sure.  I won't link it, but a usual suspect also read this as "oh Biden is a loser again." 

Who knows the full truth, but note one tidbit that the nomination would be tied to a conservative judge taking senior status. The sixty-six year old judge, however, likely only would do so if she knew a conservative would replace her.  The net there is basically getting a youngster, but she is young enough to stick around for quite some time. Again, a whole lot of nothing.]

10 Things SCOTUS Can Do Now: Fix the Court (the "term limits are practical" people) has a list that is mostly sensible.  

I would be somewhat surprised if SCOTUS stops live audio though I personally do not find it that much of a big deal if you had to wait a bit to hear audio.  The lack of opinion announcements (even the ones pre-COVID in the 2019 Term isn't at Oyez.com) is bad and that is fairly likely to happen.  Figure the fence will go eventually and the leak investigation will peter out, if it already has not.  

Drafting an ethics code is something that should be done though if they wanted to do so, they would have by now. Basically, what should happen is Congress should do that (toss in a few bits about Sotomayor not totally disclosing and kick RBG while she's dead a bit much about talking about Trump, if you want).  We already have some financial disclosure but being more complete can be a fairly mild "see we are doing something."

The Supreme Court History Board thing is a bit of inside baseball, but it's fine to toss that out.  Good luck though with the current membership of the Court.  I would say the same thing about fixing (which would require major re-writing) of the abortion and gun rulings.  The more pinprick thing was to grant the fix recently asked of an opinion, one which they somehow rejected without any comment, even though the government accepted it.

I have long thought they should post -- take advantage of that page on the website -- their speeches online; toss in video.  Also, when the Court's press office provides statements to the media, it should also be posted on the press release page as a rule. Repeatedly, this is not done, and we get reports of what the PIO (public information office) said only in media accounts.

[Maybe, Justice Jackson at least will take advantage of the speech transcript page, which in recent years was only used by RBG and Stevens.]

As to the last bit, I guess I see some value in justices not having official party affiliations.  And, the press release there notes that it is actually hard to find out the affiliations of many of the justices.  I am not excited that Thomas or any of them really -- given all else they are doing -- might not be a registered Republican.  

There are a range of things (the idea by Fix the Court that each side should show up at different types of ideological events is fine; have Sotomayor show up at the Federalist Society) that can be done.  Roberts is able to hide his party affiliation, apparently for security reasons (not sure why).  I am not aware of that route being possible in various places, including New York.  

And, if you do not have a party affiliation, here and other places, you cannot vote in the party primaries, and that is often where the action happens.  If there are about five Republicans in the City Council, if you are a Republican, being able only to vote in November is not that helpful.  So, in that respect, no party affiliation can strip justices (for little effect) of a key aspect of their right to vote.  

Anyway, I think the suggestions are as a whole (especially 1-4 and 7) are good ones.  I also want at least a transcript of opinion announcements. The video of Jackson's swearing (along with the video of the Stevens 100th anniversary event) was a good start on openness.  I do not expect it from them, but we should have video as a whole, like so many other courts. 

==

Okay, looks like nothing new happened.

Some Freethinking Thoughts

There are a ton of weekly or semi-regular podcasts and I only listen to a few. I have watched/listened to Gay USA for over fifteen years. Strict Scrutiny Podcast provides Supreme Court analysis. I listened to a few discussions from both SCOTUSBlog and High School SCOTUS. 

And, Freedom From Religion Foundation has one too. I can go on, but will not. My discussion here is focused on FFRF. The most recent podcast on Free Thought Radio had two extended clips from an actress talking about giving a secular invocation [the local government then stopped having invocations!] and involving a lawsuit where you had to swear to God to register to vote.  

The updated form still includes the wording, but it also has a box that allows registrants to opt out of the religious portion of the oath "because of a sincerely held belief." Applicants still must "swear or affirm" to requirements including being a U.S. citizen; being eligible to vote; and not being affiliated with groups that advocate the overthrow of the government.

An article summarizes the case.  The opt-out is tricky since it provides a way to avoid controversy in more than one way. Some people would be against the oath because their theistic religion prohibits oaths. The usual gospel verses can be cited here.   But, the oath should not be there anyway.  It is a form of religious establishment.  The least wrong thing to do is "swear or affirm," the first part basically implying "so help me God."

Doing a search of the guy involved, I found a discussion of testing the idea that you might need to have a religion to be happy.  The idea is that religion has been shown to bring happiness and satisfaction.  But, what seems to be at issue here is a wider belief structure and sense of community:

In an interview with Religion News Service, he said while atheism can give people as strong a sense of identity as religion can for believers, and may help with their mental well-being, the challenge for them is "think consciously and seriously about where they will find community — and organize accordingly[.]"

FFRF promotes secular thought ("freedom from religion").  I have voiced my opinion that the key thing for me is freethinking.  I think religion per se is not necessarily bad.  The term is open-ended at any rate, just as "Christian" does not mean "conservative evangelical."  It is quite possible for a person to have some sort of "religion" while also not believing in or accepting the existence of ["belief" itself is a weighted word] heavenly beings or whatnot. 

There is a lot of vague talk of "belief" or "I believe in spirituality, not religion."  And so on.  This -- as I have repeatedly noted -- also pops up in abortion cases, including references to "conscience," even if VP Harris summarized this way in one of the multiple meetings being held addressing Dobbs:

Let the woman make that decision with her doctor, her loved ones, her pastor, her priest, her rabbi.  But the government should not be doing that.  

Yes, part of liberty is the autonomy to make such choices oneself.

Bastille Day

In honor, of sorts, of Bastille Day, I offer this hilarious bit from Suite Life On Deck. Cody broke up with Bailey in Paris and is letting out his feelings with a really twisted play, especially when he dresses up to play the Bailey stand-in.

Lincoln's Constitution

After re-reading his book on the Ninth Amendment, I checked out this book from the library. Like the Ninth Amendment book, it is basically for the average reader, not just someone specifically interested in the topic and/or a specialist. The book he co-wrote entitled Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations is more of that sort though you do not really have to be a law student to appreciate it. 

The title of this book is something of a misnomer.  It really focuses on the Civil War, with an extended prelude about antebellum ideas about state sovereignty.  A late comment about "if" he was saying he "would sign legislation banning slavery in the territories" also ignores that he actually did that.  One thing that could have been covered more in a more open-ended discussion was something like the rights of blacks. Lincoln said they had basic rights, as spelled out in the Declaration of Independence, without being equal in all respects as whites.  This is the middle path between the "no rights" of Taney and the "firmly equal rights" of radicals. 

(The book at one point notes the debates over sovereignty had a certain metaphysical feel to them.  Yes.  This talk of "dignity" of states and so on at some point becomes ridiculous, except we are talking serious results.) 

Focusing on the more narrow range of the book, it has some interesting aspects.  It also overall thinks Lincoln's moves were defensible, which I think is true as a whole as well.  Some, including those who toss it out to grant something to focus on something else like the idea Lincoln in general was lawless, blithely exaggerate how bad the wartime policies were.  A basic example is in the area of free expression, in an age before modern day law much more strongly protected that. 

The book also tosses in some interesting details such as the fact a federal circuit judge held that the statutes that empowered Lincoln to call up the militia implicitly also authorized him to declare martial law/suspend habeas.  This makes the whole Merryman argument somewhat moot.  Books that cover familiar ground often have some such useful details. On that note, Farber cites the possibility Taney did not have jurisdiction (which would allowed Lincoln to ignore his ruling) but did not cover the details. I recall a discussion that touches upon just such an issue.  

One basic thing covered was the "law of necessity." The line about following one law while ignoring the rest is cited sometimes.  This is done badly a lot of times too.  One aspect of Lincoln's argument (and he said much of what he did was legal anyways) is that the situation when the Civil War began was such that he in effect had a dilemma.  He could not truly faithless execute all the laws.  It was basically a "least bad option" scenario that is covered here in regard to the debt ceiling.

Also, the law of necessity is part of our system of law. It is not an "anything goes" scenario.  There is regularly some third party (there Congress and the people at the polls, other times a judge and/or prosecutor) who has to look at the situation.  They have to judge if the person truly had such an extreme situation that the law being broken was warranted. Sometimes, this serves as mere mitigation.  It is a complex thing.

The last chapter also covers the "limits of judicial authority" and the terms of so-called judicial supremacy.  Lincoln eventually came to a position where constitutional law as expressed by the Supreme Court comes into a firm footing over time.  A single ruling (Dred Scott) would not do so, especially if there is clear issues with it.  On the other hand, shades of James Madison statement on the national bank in his veto message, the law at some point becomes so established that it deserves deep respect.

The chapter cites Jefferson's "departmentalism" view that each branch of government has the power to settle constitutional questions.  So, even if the Supreme Court determines the national bank is constitutional, maybe Congress or the president will decide otherwise.  A more tricky issue here would be when the Supreme Court decides a question regarding rights and an executive official has to decide the same question. What if the result restrains rights in a way the courts find incorrect? 

The lest we be marshall'd book (recently referenced) covered Jefferson's views in somewhat more detail, noting that they were not fixed, and avoided the settlement of hard questions.  Jefferson was known to be more of an idea man. This book, for instance, noted that Madison talked him into toning down his rhetoric in his part in the Virginia (Madison) and Kentucky (Jefferson) Resolutions.  

The judiciary is supposedly particularly able to decide legal matters. They are after all judges, learned in the study of law.  They hear specific cases, able to examine specific legal matters in detail.  They are also protected from partisan pressures, their salary and terms protected.  They have an ability to stand above it all and protect the law, especially minorities.

All of these things are, surely, disputed in various ways.  As I said before, the best approach is to support a more humble version of judicial review.  Lincoln's pushback on Dred Scott is a good example.  Precedent can be bad regardless. But, recent precedent, especially one that is decided in a problematic way, are even more worthy of pushback.

The idea referenced in Cooper v. Aaron, which as I noted is far from a typical case, that the Supreme Court (and on some level all courts) are "supreme in the exposition" of the law can be abused.  If the Biden Administration wants to decide that the federal Constitution protects a right to choose an abortion, it very well can.  At some point, this will clash with Dobbs v. Jackson if it "wrongly" interferes with state power to regulate, but there is a lot of room before that happens. 

I recently wrote a supposed oral argument for Marbury v. Madison, which (unlike the original) included both sides arguing.  A relative uses such "oral arguments" as part of her sale of education materials (she is a high school history teacher).  A thing I flagged was that each branch has certain skills and duties.  They each swear/affirm to uphold the Constitution.  If anything, it is the POTUS that the Constitution gives the strongest oath there.  They all can have a role in exposition.  

The ultimate question then is who is "supreme."  As noted in the book, and by Jefferson (fwiw), each will be in certain respects.  For instance, Congress (so says the Supreme Court) has open-ended ability to determine the contours of impeachment, even though the language is legal in nature.  (Some extreme case like allowing a majority to convict aside.)   Presidents veto bills and can do for misguided "constitutionality" reasons.  And, each branch does a lot of things realistically, in part because of existing judicial rules, that simply will not be put to the legal test.  

There is a lot of play in the joints. There will be cases where a clash might arise.  And, even there, I think it is sound practice to reasonably have some clashes, especially when the legal limits are unclear and dubious.  The fact something in 1987 or something, for instance, held one thing does not mean that signing something into wrong clashing with it is horrible.

Each department, including the courts, have a duty to be reasonable here. And, when special moments, like the Civil War, arise, tricky choices have to be made.  This book helps educate yourself on such matters.

Griswold Again

The Dobbs majority (joined by Thomas and Kavanugh in concurrence though Thomas does want to go further) assures us that Roe v. Wade is special. The dividing line?

its effect on what Roe termed “potential life.”

Yes, the opinion does note that the contraceptives use ban at stake in Griswold was an "outlier" (the state pushed back on exactly how true that was). Nonetheless, the majority attacks the right to privacy too, at the very least as it is covered by Griswold, Roe, and Casey. Thus, Griswold's reasoning is attacked:

Since Griswold, the Court, perhaps recognizing the facial absurdity of Griswold’s penumbral argument, has characterized the decision as one rooted in substantive due process.

We are told that it a right to choose an abortion is not saved because it is somehow connected to family life and marriage since on a "a high level of generality, could license fundamental rights to illicit drug use, prostitution." Again, that is the sort of thing cited when contraceptives and so called "sodomy" (a crude term for non-vaginal intercourse) were involved.  

An opinion that purports to show -- contra how many historians frame it -- that abortion was never really seen as a legal right should not find it too hard to show that open access to contraceptives is not based in "deeply rooted in history."  

How about the potential life thing?

We are already getting evidence that a ban on abortion ("abortion") can lead to blocking what many deem birth control.  This news story shows how the IUD (the most reliable birth control method) is at risk. The Hobby Lobby case also shows how what people do not really deem "abortion" can be so labeled, including morning after pills.  And, on a wider level, the Catholic Church very well thinks birth control "involves" potential life.

Anyway, is there some "facial absurdity" to Griswold's argument?  The idea (to cite Holmes) that the Fourth Amendment's "penumbra" involves a broad "right to privacy" is often seen as arising in significant part from Justice Brandeis' dissent in Olmstead v. United States.  

As noted by Griswold, various Fourth Amendment cases speak of some "right to privacy." The footnote cites a 18th Century case protecting "sanctity of a man's home and the privacies of life."  Justice Harlan, whose Poe v. Ullman dissent was accepted in time as basically official, was also cited by a concurrence citing the same principle:

Certainly the safeguarding of the home does not follow merely from the sanctity of property rights. The home derives its pre-eminence as the seat of family life. And the integrity of that life is something so fundamental that it has been found to draw to its protection the principles of more than one explicitly granted Constitutional right. . . . Of this whole `private realm of family life' it is difficult to imagine what is more private or more intimate than a husband and wife's marital relations.

Harlan also wrote an opinion cited in Griswold holding that freedom of association has a "close nexus between the freedoms of speech and assembly," including the privacy of one's associations.  The opinion cites a few other cases (and writings) that show a right to "privacy" was recognized.  Sometimes, it was more of a general "liberty" (such as to raise one's children), but sometimes it was in cases involving specific rights.  

I do not see the 'facial absurdity" of the idea the same applies with other enumerated rights, privacy has a "close nexus" with them.  A bit of research can show how self-incrimination is part of the whole here (up to the of torture to force an invasion of one's conscience here). The same can be said about a right to conscience (First Amendment) though the opinion itself (as compared to the briefing) does not really address that.  

Justice Douglas in his Poe. v. Ullman dissent does not limit himself to some "penumbra" (though he used the terminology pre-Griswold), arguing that privacy generally is a necessary part of a free people.  He noted the importance of privacy in an earlier dissent, showing in part the wider First Amendment aspects involved:

The First Amendment in its respect for the conscience of the individual honors the sanctity of thought and belief. To think as one chooses, to believe what one wishes are important aspects of the constitutional right to be let alone.

A true respect of this principle, including as expressed in our history and traditions (and the text of the First Amendment), is not to draw a line among privacy precedents (or "liberty" precedents) at some greatly disputed, heavily mixed with religious belief, matter of where life begins.  

I do not think it absurd, especially as a means to try to practice (a bit ironically here) judicial restraint, to fit a right to privacy regarding birth control and general reproductive choices as a a wider application of enumerated rights.  

Melissa Murray in an article, for instance, reminds of a lesser known couple in the birth control litigation who wished to use it to secure a certain path as a couple.  Life choices here, association choices, can very well turn on not having the woman get pregnant.  The same applies to a person's equal citizenship role.  

I think it is probably true that reproductive liberty here is not merely a matter of fully protecting enumerated rights.  The enumerated rights do assume a wider range of freedom.  Nonetheless, it is not necessary or ideal to rest alone on them.  The Ninth Amendment and so on make this appropriate as well. 

(The usual framing of "matters relating to marriage, procreation, contraception, family relationships, and childrearing and education" is a mix of Bill of Rights and a wider understanding of freedom that grows out of history.)  

The "right to privacy" is a label that reflects a range of things. As summarized by one person (same cite):

The first is the right of the individual to be free in his private affairs from governmental surveillance and intrusion. The second is the right of an individual not to have his private affairs made public by the government. The third is the right of an individual to be free in action, thought, experience, and belief from governmental compulsion."

The contours here are determined case by case, in and outside the courts.  Justice Harlan's concurrence in Griswold is basically correct that the true restraint is up the judge, not some fantasy shibboleth (Mark Tushnet) like "history or tradition."  Who isn't in some way guided by that?  And, why is "potential life" separate from the rest here?  

Again, it is not like the Catholic Church admitted that contraceptives did not touch upon that.  And, how much of an "outlier" really was Connecticut?  For instance, regular controversies involving pressuring people to be sterilized continued at least into the 1970s.  Ironically, then, the military pressured women to get abortions.  

Is personal control over one's reproductive life so hard to separate from public sale of sexual services?  Years back, I imagined a right to prostitution.  You can craft one.  But, there is a pretty easy line drawn in current jurisprudence.  The same applies to regulation of the sale of illicit drugs though again cases do arise involving drugs, including lines drawn when you are forced to take it even to protect born humans.  

We past fifty years and are approaching sixty for Griswold v. Connecticut.  And, it is not yet quite secure, even though its popularity is so high that even Alito has to try to -- up to a point -- assure us (don't believe it) that Dobbs will not threaten its basic core and surely its principled wider application.

What a Reckoning at the Supreme Court Could Look Like

Ezra Klein is a political nerd with a podcast. I get the idea he has some good ideas though at times the vibes coming from him bother me. I do not really want to listen to his podcast though it might be useful. His recent op-ed reaffirms this. It also shows that even after decades of dealing with things, I still just have to scream out how stupid certain things are.

The op-ed is a mix of good, bad, and oh so close.  The op-ed starts on my good side by focusing on the presidential commission on the Supreme Court.  It continues to be my opinion that it was a useful device, even if it was woefully underutilized.  The idea it was just something to push things down the road and say you were "doing something" -- a typical reason for commissions -- is reaffirmed by how quickly it was forgotten.

But, the commission had value to examine the topic, inform, and serve as a agreed upon source of ideas for reform.  There should have been more of an effort -- including by law professor types that just sneered at it while in various forms honoring more than one person on it -- to promote it and educate the public.  It should have led to congressional hearings or something to examine the ideas, and push for change.   

The op-ed suggests the report provides various ideas for the "reckoning." Yes.  I have yet to read the think (I admit) since I want to read a hard copy. My repeated requests of the Biden Administration to send me a copy has not been answered, though once I received a form email in reply.  The report is nearly three hundred pages long. Printing it out would cost a lot.

I take the problem with the current Supreme Court to be that there’s no reason to trust its judgment, and many reasons to mistrust it. The process for picking appointees is thoroughly politicized.

The first part is correct.  The second part is missing something.  Ditto the argument later that we have to "depoliticize" the Court.  The process was always political as was the Court.  You are not going to totally remove politics when the Constitution itself gives political branches the power to nominate/confirm.  And, politics of some form will be on the Court.

The basic problem now is that it became so corrupted in an ideological fashion, leading to a problem of democratic legitimacy.  From the 1950s to the 2000, there tended to be a true centrist wing on the Court.  And, the nomination process was not so blatantly ideological on one side repeatedly. The idea of formalizing this (Eric Segall's split court assumes two parties with equal members) is raised by some reformists.

But you can’t fix the court by adding justices. You’re shifting the balance of power by contributing to the underlying problem: turning the court into an untrustworthy institution and setting off a cycle of reprisals with unknown consequences. If Democrats manage to pass a bill adding new justices, Republicans would match or exceed it as soon as they were restored to power, and on and on.

This part pissed me off since it is so tired.  Why does adding justices -- supposedly to make up for "stolen seats" and so on -- "turn the court into an untrustworthy institution"?  What is this verb tense?  The Court is (deep breath) already untrustworthy.  It is already packed.  It is already unbalanced. And, ANY number of solutions can be "matched or exceeded" by Republicans. 

The op-ed then goes into multiple paragraphs on the "easy" solution of term limits.  How do you put them in place?  I yet again say any law here will be prospective. So, when it the FUCK will this actually kick in with the current membership?  We are supposed to just grin and bear it, including the trolls in place now (new and old), until the 2030s or something?

A minor problem here, at least, is that if the limits are 18 years, justices can still strategically retire or die in office. So, the new term limit law has to be carefully crafted.  The op-ed also talks about setting up some mechanism if "two" justices' confirmations are delayed indefinitely.  Yeah.  There is at this time not a high likelihood a Democrat would even get two openings any time in the half-way immediate future.  

The op-ed ends with a more "radical" idea of a "balanced bench."  The ideas are interesting though to me pretty academic.  But, hey, we need to think big.  That is why more should have been done to use the commission as a platform for education and debate.  And, the blame can be spread around here.  It isn't just on Biden, who can't work alone here.

But, hey Ezra, where would this balanced bench come from?  The discussion for instance cites one idea of a 15 person bench [which would be far from extreme given world standards; as an aside, we can have a constitutional court with a limited reach here] where 10 justices pick the other five.  Again, it's academic discussion at this point, but it is interesting to think about.  But, notice the Numbers.

You can not "fix" the Supreme Court MERELY -- let me repeat that for the back row -- MERELY by expanding the Court.  I can be generous and take the op-ed as  a whole to show understanding here.  I am loathe to do this because he did not do it.  He didn't say "critics say that you cannot obtain a reckoning with packing, and they are right! It can, however, be a part of the solution with other things."  It is quite quite easy to say this.

I realize the limitations of the current reality.  There simply is not the votes or will to expand the Court.  The guy with superhero looking big white hair who "retorts" a lot can scream all he wants about how we need to expand the Supreme Court.  Some things we need simply are not possible at the moment in the real world.  Welcome to reality.

Nonetheless, I have reached a point where expansion of the Court does appear necessary for a true reckoning.  It has to be long term part of the solution.  Term limits are fine.  I think there are important and long term will help some.  It is insane to think Potter Stewart was some weirdo for retiring in his sixties when he was already on the Court for over twenty years.  It makes sense to have term limits.  

The same applies to ethical rules, televising the Supreme Court, and damn it already, let's have a full investigation of multiple members of the current Court (including how they got there -- a legal expert was on Stephanie Miller's show talking about all these tips made to the FBI during the Kavanaugh nomination that were not properly handled; okay! let's get a full report on that!).  And, there are other things.

But, the very structure, including the numbers, of the Supreme Court has to be part of the reckoning.  It is insane to have people sneer at court expansion, including assumed Republican tit-for-tat, when a basic reason for the demand is that they ALREADY FUCKING DID IT!  The idea (simply not admitted out loud) that we have to grin and bear this, hoping while thieves keep are cars that we can fix car ownership in the future is outrageous.  And, as I age ever so slowly, I can bear outrageous less and less.

Term limits alone are far from easy realistically to put into action. I referenced in my recent SCOTUS post the idea that if term limits are declared unconstitutional that court expansion can kick in.  The reference underlines the reality that they are not "easy" even if there is a general acceptance of them.  Sure, like there was long an acceptance of background checks for guns.  At some point, that led to a limited gun reform law.

The reality regarding a "reckoning" is that there are various parts. The Supreme Court being YOLO (abortion, guns, EPA, etc.) is one part. A major instigation that shows more than one group that something has to be done.  We have to connect this with Trump, since it a basic reason why we have the Court we have now.  Orin Kerr types can bullshit that "both sides do it," but the process was illegitimate based on just constitutional norms.

There also has to be enough people in power to change things. We should have enough people NOW to get certain things into law, including ethics rules.  So far, we got tweaks.  For the hardball stuff, we need more than 50 senators and obviously we need Democratic control of the House.  If that is the reality, a few Republicans might even go along. Again, on certain limited things, they already are there.

And, then you get to the true reckoning. The true reckoning includes major changes to the size and structure of the Court.  (I might add here true pressure, including impeachment investigations as warranted.) The commission's report and others provide some ideas here, including even some ideas like a supermajority veto of certain judgments.  

And, yes, the current 6-3 majority has to be addressed.  I have no simple answers on how to get there.  Like the constitutional convention, there just might have to be some sort of real compromise that helps to increase the chance of locking things into place.  The "balanced" court idea is a possibility there.  The expansion is not merely the only thing.  It is not just that four justices will be added, resulting in a (the horror!) 7-6 Court (which is really the legitimate breakdown; make it 6-5 or whatever).  

The "reckoning" is a long term effort to try to make the overall system fairer in the long term.  I refuse to grin and bear the idea that the best we can do here is -- maybe -- set up a system that -- maybe -- will kick in years from here. Meanwhile, the current Court (supposedly mildly warned, and with ethics rules not allowing them to as blatantly have celebratory Federalist Society visits etc.) gets to continue to strip our rights etc.

If we are going to talk about this, let's talk about it with sense. To toss it out, expanding the House also is not a bad idea.  Consider that the British Parliament has 650 members for a country with a population of under 70 million.  This is not just about "packing" the House.  Let's not be stupid. 

==

I later saw this piece by Saul Cornell, who is a good source for history of gun regulation in the United States.  

A few people were annoyed at me online for arguing that there has been a historical right to own and (to some degree) carry firearms.  Also, that a constant reference to the Second Amendment does not tell the whole story.  Cornell is one major source of mine to split the baby (militia and personal ownership).  And, there is a history of strong regulation.

Some rather not go there (perhaps of the "give an inch" school) and it's partially a result of so much emphasis on the Second Amendment.  Actual text and history does not lead us into this direction.  It is unfortunate there wasn't a Souter-type approach that granted a right to own a firearm (Breyer sorta did in Heller, but it seemed so weak as not to take seriously) mixed with a strong regulation mindset.  No other liberal since him really went there, Kagan and Sotomayor not speaking on their own yet.  

Okay, I'm basically repeating myself from past entries, but this might suggest the value of a truly balanced Court.  The reason I came here to add this addendum is this portion of Cornell's SCOTUSBlog piece:

Distorting the past to further his ideological agenda has become a trademark feature of Thomas. What is more disheartening is that the court’s newest originalists, Justices Neil Gorsuch and Amy Coney Barrett, signed on to this historical charade. Despite protestations that they are not ideological warriors and political hacks, Gorsuch and Barrett missed an opportunity to prove that originalism can be applied in a rigorous and neutral manner. Apparently, that claim continues to a be a promise as yet unfilled.

The "dishearten" part ("to cause to lose hope, enthusiasm, or courage: to cause to lose spirit or morale") does seem a bit much.  Did Saul Cornell really expect more?  Or is he just being polite? 

Good luck applying originalism "neutrally" -- this is some sort of snipe hunt.  This isn't new ground for Gorsuch (see the administrative state), even if he seems somewhat consistent (Bostock, Native Americans, a few libertarian type opinions).  And, even when he gets a good result, it seems oh too simple regarding how he got there.

(At some point, you might accept somewhat mythical language about principle that do not quite match reality.  At least, it is somewhat a consistent thing, especially when a majority has to be crafted.) 

And, we saw by Barrett's path to the Court a mix of hack and charade.  She wouldn't be here if she was fully honest.  And, once you try hard enough, it's hard to suddenly flip a switch.  You basically accept your own b.s.  

Still, I guess, this is a scholar's polite way of flagging a problem without fully calling justices hacks.  Some don't like softening blows.  I am okay with it to some degree.