Love, Classified

Stephen Colbert appears to be off for a month, after already not that long ago having time off. It's a bit annoying. The intro had Jon Batiste referenced even though he was on hiatus. It was eventually noted (not so surprising) that JB would not come back. The guy won like a million Grammys and now is doing acting work too. Anyway, a member of Stay Human, his band, will step in. 

Back next week.

 

More than once, I had problems watching Love, Classified, including someone apparently deleting it the DVR.  Luckily, it was in the library, on DVD with another Hallmark movie. As an extra little bit of amusement (I live for things like this), the back of the box mixes up the plots of two films.  The descriptions do not match.  Edit fail!

I watched this film before and it's one of those that are light and enjoyable enough to at least partially watch twice (I only ff-ed a bit).  The film takes care to toss in romances for the mom and her two kids, who hook up with other characters whose stories we see too.  The very end of the movie even tosses in a hook-up for the bestie of one half of a couple and the mom's editor.  Heck, familiar Hallmark familiar lead Paul Campbell even gets a few minutes of air time, though he doesn't get a hook-up himself.

The most notable thing about this film is that basically the key romance is a same-sex one, in fact the woman (shown) might be thought of as bisexual. We aren't quite there where a "hi-jinks ensue" plot involving  a surprising same sex match-up (one or both halves supposedly with other people, at least one a heterosexual match-up) ala Imagine Me &You, but Hallmark is starting to have some same sex match-ups, especially supporting roles.  

One sign of how busy this film is and how it is somewhat atypical is that the kiss between the couple (the mom's doctor -- plot complication alert! -- and a plant boutique store owner) comes like half-way in the story. A common trope in Hallmark films is for the kiss to come at the very end, a sort of "true love kiss" that shows the couple is truly together.  

(One good older film -- Trading Christmas / 2011 -- did have the older couple, who included Faith Ford [a widow], make out mid-movie.  Again, that was somewhat notable.)  

Anyway, the film was pretty light, though the family issues add serious content, and the first part takes a bit of time before it really warms up.  I  like the characters as a whole, including the quirky bookstore assistant with the purple dye in her hair that on re-watching did not stand out at times in certain shots.  I was wondering if that was some sort of editing fail, the hair and makeup people not making sure to have her hair the right shade all the time. Or, maybe I was not watching closely enough.  

The doctor is also on the latest version of the L-Word, which I checked out, but got bored of.  Maybe, that is why her voice sounded so familiar. The purple hair book store woman deserves her own film.  And, the mom accidentally picking up in effect her own son via a pick-up app (she was really just trying it out to do research for her book) was funny and a bit creepy.  

==

Bridget Loves Bernie and Fish were the Decades marathon shows last weekend. I saw a bit of the first before; rather forced sitcom antics with some familiar faces.  The couple married in real life, were married into the 1980s, but at some point it didn't go happily. The actress married a few times over her life, her most recent spouse a woman. 

Fish also seems standard 1970s sitcom and somewhat amazing the Barney Miller spin-off actually lasted two seasons. Again, there were familiar faces, including the adults, and hey isn't that Willis, one of the foster kids. Fish comes off more decrepit in the cop show.  The actor really was not that old at the time -- he wasn't even sixty when Barney Miller began.

(A bit of math suggests this. He died in his mid-90s around 2015.  So, he was thirty-five years younger.) 

"The reckless rage of the lawless" (But, I'm SOOOO Concerned!)

Whether this will ultimately be a criminal prosecution or not is far from clear, though nothing suggests the Justice Department has ruled the possibility out. Regardless, those of us outside of government will likely not get the immediate gratification of a quick resolution. The investigation from here is likely to vanish for a while.

Yes. There has not been much "immediate gratification" except a continue series of "look at that!" sort of things that after a while gets tiresome. Fine. Yeah. That's something. But, what is the bottom line? Are we really somewhere ahead of where we were before? Or, is this a not that exciting extended process for which success will only be seen in hindsight down the way? 

The search of Mar-a-Lago for national security documents is a story that continues, now with a partially unredacted affidavit to help us obtain a bit of clarification. Another story getting somewhat less attention is that whole Secret Service mess, including deletion of key data.  What will be the ultimate justice here?  Trump was impeached twice and here we are.

One continuing difficulty is that idea that doing anything major here is so very fraught.  This is the case even when people agree Merrick Garland and so on (after all we have  TRUMP SELECTED FBI director) can be trusted and that Trump did bad things. Note this op-ed by the usual old guard:

William S. Cohen is a former secretary of defense and former Republican senator from Maine. William H. Webster is a former director of the FBI and the CIA and a retired judge of the U.S. Circuit Court of Appeals for the 8th Circuit.

They say basically the right things, but the assumed stakes underline why going against Trump (or expanding the Court or)  is supposed to be so dangerous.  

Garland’s actions upholding the principle that no one is above the law reaches well beyond our borders. Surely, he is not eager to be the first person to initiate criminal proceedings against a former president. To do so will establish a woeful, even if justified precedent, and possibly will set off a level of civil strife we have not witnessed in more than 150 years.

Two things here. As someone flagged online when I cited this, why is this a "woeful" precedent?  Yes, on some level, it is  not happy. But, on another, if is a good precedent, a precedent where wrongdoing is answered and justice is applied.  Not doing anything after this "unprecedented" wrongdoing occurs would be much more "woeful."  

The second thing is "more than 150 years" would be before 1872. So, the "level of civil strife" that will arise when a (limited) prosecution of Trump finally comes (is "initiated") will be worse than Reconstruction.  Or, I might add, the urban riots and assassinations of the 1960s.  We can cite other moments as well such as the two Red Scares or the civil strife that arose during the Great Depression.  And, so on.

These are very serious and violent moments in our history.  The KKK or some form of racist violence poisoned the South with murders and mayhem. Is it REALLY likely that any reactions to criminal prosecution (which quite honestly will not likely lead to him in an orange jumpsuit) will lead to reactions comparable to that?  The overheated fears here are a tad ridiculous.  And, if anything, a form of incitement.  

I will not argue here that nothing will happen. We recently had a prosecution for the attempted kidnapping (or worse) of a sitting Democratic governor.  Violence against government officials has been attempted and in a few cases accomplished.  The Capitol was invaded. And so on.  But, a sense of historical perspective should also be recognized here.

The op-ed does not say we should not act.  It ends with the statement that Garland "cannot tailor his judgment to accommodate the rage of the lawless." Still, the op-ed -- from even the sentiments of these two -- troubled me.  Others more partisan take things further.  Democrats are the unhinged ones, trying incite partisan hatreds against Trump for their own ends.  Any violence is basically their fault.  And so on.

I'm tired of these people who seem to be almost crying in fear about what will happen if we do what bottom line we should do to answer the crimes and violations of norms of Trump and his minions.  And, yes, I do also point to those who cry about the idea of court expansion, as if doing nothing is of no harm.  Such a reminder is particularly easy when the person in charge of prosecution is Merrick Garland. 

"The Liberal Justice Who Warned Against an Activist Supreme Court"

Jeffrey Rosen is the president and chief executive of the National Constitution Center and a law professor at George Washington University. This is a assumed above the fray (honorary co-chairs: Breyer and Gorsuch) institution. It worked with C-SPAN on their Landmark Cases series. Rosen himself comes off as oh so "reasonable" and enthusiastic about constitutional measures when they air stuff with him in it. 

 

Much of that is fine, even if you are more passionate about pushing a certain ideological point of view.  There is a limit there and I was somewhat annoyed reading his review of a new Justice Frankfurter biography.  It is somewhat selective though Rosen does note Frankfurter himself was an imperfect sort with a lack of self-awareness.

Frankfurter is put out as a warning, a liberal who support judicial restraint:

Ever since the New Deal era, Frankfurter had warned liberals that fighting their political battles in the Supreme Court would backfire, since conservatives would inevitably regain control of the court and reverse their judicial victories.

The book notes that this is a good time to remember his argument for “modest, incremental and democratic approach to judging."  Again, that's fine, but Frankfurter was not soooo very restrained.  The review makes it out like the ONLY time he didn't restrain himself (and even there he is given the credit for finding a way to delay judgment to get unanimity) is in school segregation.  Brown.  The ultimate exception that proves the rule.

Racial discrimination was a central political battle of the day. The courts supporting racial equality is a major reason there was backlash and conservatives used the courts to go another way.  Brown was not the only ruling where racial equality was promoted, including with Frankfurter going alone.  The review oversells the case even here. 

The Supreme Court got involved in other battles for which Frankfurter did not feel was off limits. A famous case here is the Steel Seizure Cases in which the Supreme Court chose a side.  It was possible, I suppose, for the Supreme Court to play keep away there as well, giving Congress, the steel mills/workers, and POTUS more time (events were already speeding along) to find a solution. He chose not to go that route.  

Frankfurter famously argued for the constitutionality of the flag salute as a matter of national unity.  Not noted and often forgotten was his strong belief in separation of church and state, basically for similar reasons. He went further than Justice Black on that (voting to reject bus fares) and did not have a "minimalist" view on the Establishment Clause in that fashion.

The bottom line then becomes what actually did Frankfurter warn the liberals about? The main "political" battle that seems to stand out is partisan gerrymandering.  Was it really wrong there for the courts to step in to address something politically broken and hard to see being fixed without a push?  The breadth of the approach might have been dubious in the end, but the basic principle to me was a sound bet.

Frankfurter also clashed with Black on how far to take the Bill of Rights, including regarding free speech vs. McCarthyism. I think it was ultimately a good thing to have conservative forces in the Supreme Court to balance what was a bit more complicated than Black/Douglas argued though their point of view is where my heart generally is.  

But, even here, there is something of a case of degree.  Frankfurter agreed in certain cases as did Justice Harlan, another conservative of the day. In that period, Brennan was a moderate liberal, willing to compromise and put forth middle positions on various issues.  It's fine to have a conservative there to help caution and remind. At the time, however, it is unclear when the justices were going "too far," especially since they overall was not really going against the general tenor of the times. 

Frankfurter is a useful tool to remind that there is a place for restraint. Still, it is also useful to note that the guy was a bit of a hypocrite. Restraint would be to keep one's hands out of the political cookie jar while on the Court.  Frankfurter was fine with continue to be involved some way there, not giving up totally his years of being a power behind the scenes.  

He also did not totally keep out of political battles in another way. Frankfurter's conservatism was at times motivated by the concern that the courts going too far would backfire.  Courts have no power of the sword or purse, after all, and if those with power thought the courts were going off their skids or something, it might bite them. It also might be counterproductive to liberal causes. 

So, for instance, Frankfurter from my understanding (along with Warren) did not want to touch cases involving miscegenation in the 1950s, even if the result was individual litigants were burned. Is this a sound use of judicial power?  Perhaps, it is an honest accounting of the limits of judicial power and the realization that justice comes in various forms. 

Still, it is a form of fighting political powers in the courts to factor in assumed political effects when judging.  The op-ed is a tad simplistic about the balances of Frankfurter's approach.  Rosen also notes that Roberts cited Frankfurter in Dobbs in support of an in between position:

The fact that Chief Justice Roberts could not persuade a single justice to join him in the court’s recent polarized Dobbs opinion suggests that neither liberals nor conservatives today are inclined to put institutional legitimacy above their vision of constitutional principle.

Again, of course, Roberts minimalism is selective.  And, what is this "both sides" business? What value would the liberals gain by watering down Casey and having a 5-4 Court anyway?  Isn't the path to "institutional legitimacy" a matter of upholding decades of precedent, which itself provided a moderate compromise position?  

Kagan and Breyer repeatedly compromised to uphold principle even when their ideological priors would lead them to go another way.  This comment is blatant bullshit on a basic level.  Frankfurter fought political battles in the courtroom repeatedly.  It is a matter of degree. 

This can be shown even in a relatively brief book review. 

Health Check

Had my annual check-up, which is basically blood work and a bit of "well you look good" (the body exam is rather limited; I also just gave blood, so my blood was recently tested). The results apparently match the accepted ranges.

The last two times also had some other special additions. This year, it was time for the shingles vaccine, which turns out to be a two step process (so need to get a second shot in two to six months). I had a minor case of chicken pox as a child; don't want problems as an adult. I'm all boosted COVID-wise.

Last year: colonoscopy, which was the first time (that I'm aware of) I was put under. The whole thing went smoothly enough with even the pre-procedure "cleansing" not too bad. No problems after; probably could have walked home though they didn't want me too. People who need to deal with doctors and procedures continually find this a big f-ing pain. As a one shot, it was pretty fun.

I have been generally lucky health wise, though don't think I'm in great shape or anything. Had a few moments, including somehow putting my fist thru a window as a child (still have a scar), but no broken bones or anything. Knock on wood.

Peppermint

The middle (II-IV) Death Wish films were on cable. This led me to want to watch this Jennifer Garner revenge flick again. The DVD has a director commentary that is decent. It could have had more commentary about the process (had some) and actors (not too much). But, I basically watched the whole thing while listening to the commentary with closed captioning allowing you to follow along with the film dialogue.

The film is basically about standard mom becoming a vigilante against everyone (including the judge) behind the murder of her husband (who got in trouble with the wrong people) and young daughter (who bought peppermint ice cream before being shot) as well as those who helped the denial of justice, including the judge involved. And, there were various cannon fodder sorts, like the low level crime syndicate personnel disposed of along the way.

Jennifer Garner, who played a spy on t.v. years back, does this with aplomb. I'm somewhat surprised that there was no sequel yet. The supporting cast is generally serviceable with a few people standing out, including two of the officers involved. The crime boss involved (himself only part of a wider criminal conspiracy) is a fairly good if not too notable, big heavy. This is really Garner's show, spending much of the film basically as a walking wounded expecting she was going to die fighting anyhow.

[Checking out part of it again after writing this, I want to add here that the film all and all is well put together.  It looks, at least to my untrained eye, rather like a serious effort to make a superior product. The basic story is a bit too straightforward, including her ability to mow down everyone, if with some injuries and a complication or two. But, Jennifer Garner is excellent, is looks very good, the basic story is professionally done etc.  It really all mixes into a decent, if flawed, film.  To give this film like two stars or something is silly.  For what it is, it's pretty good.]

The morality of all of this is clearly dubious.  We like many on the social media referenced in the film are on her side.  Killing a bunch of people like this, including a retired judge, is still not really great on principle.  The film does not rub our nose in it all too much (we do get more shots of her being injured and tired than we often get, but it is played fairly straight, without gratuitous gore or the like), at least as compared to other films.

Death Wish sequels (the first one is treated generally with respect by critics though I only know the general outline) go another way. The second one decides his already traumatized daughter (played by a new actress) should be traumatized some more.  First, the family housekeeper (a more voluptuous Latina, played by B film heavy Billy Drago's wife) is raped, and we get more shots of her body (all the sexy parts).  

The love interest in the sequel is Charles Bronson's own wife, Jill Ireland, who was in many films with him. He didn't want anything to really happen to her character, so she gets off easily as compared to the usual female family member in these films. She finds out he is a vigilante and gives him back her engagement ring.  Good move, life expectancy-wise.

The third film is his character being used by a police chief to deal with local gangs. The fourth goes back to killing off family members (daughter of girlfriend) to set things in motion. And since having someone is inconvenient, the mother is rather gratuitously killed off at the end too. She was played by B-movie favorite Kay Lenz, noted by a distinctive voice.  

The fifth film, not shown as part of the cable run this time, goes back to the female victim well. Apparently, it also is a more heavy on the graphic violence.  There is a certain addictive feeling to this, though at some point the character comes off as just a silly caricature.  The third was mostly about slum / urban jungle feeling.  The others had some plot with various familiar character actors giving viewers a bit to care about.

So, I am not going to be totally self-righteous here. I understand why people like this sort of thing. Many movies play with our emotions and baser instincts. This includes some wallowing into things. I still find it pretty unpleasant, especially when it gets to be like an assembly-line type series that cannot really be taken seriously.  

Some films have more quality than others.  A basic theme here is that there is evil out there, at times it is personal (like harm to family), but in a wider way, it's just too big to totally conquer.  The revenge (which feels better viscerally when the crime is worse, thus the wallowing in the pain of the victims) is sweet, but only so much.  The better ones find a way to show some complexity.  I'm also reminded of this:

She was a champion of the underdog but also sensitive to the needs of society as a whole. She began her criminal procedure class most years by asking students to identify the harms that private actors inflict on one another when crime goes unchecked and also to identify the harms that arise out of the abuse of police power—quickly bringing them to the realization that anarchy and authoritarianism are mirroring evils. Long before the most recent wave of attention to overzealous and racist policing, Sherry [Colb] proposed that traffic stops for nonviolent offenses should be drastically curtailed.

Paul Kersey kept on having more people to kill, destroying some drug dealers in one film just allowing another person to step in (a somewhat ironic reminder).  Horror films remind us that certain things, including evil forces, never truly go away. Thus, the need of constant sequels.  Any move to improve things will not lead to true completion either. But, some approaches are better than others there. 

Those who support pacifism can still  read about war.  A few might think it a bad idea to even have stories about war, which seem to glorify it.  That's true on some level.  There are also some who see many of these films as having some hidden depths. A film like Peppermint with a female lead is going to appealing to some as a sort of feminist message.  Again, some of these films have more to say about some things, like this one wanted to include the issue of how social media factors in.  

Anyway, I support a sequel -- why leave her alive, if there is not sequel? The director commentary shows a bit more that the film was done with some finesse. Another film that I am even more surprised (since sequels of Nicholas Cage films are popular) was not followed up was Drive Angry, where Amber Heard (in the news of late) added great support. 

My Future Representative Acts Like An Asshole

I am proud to endorse @danielsgoldman as the Democratic nominee for NY10.

The time has come for the Democratic Party to coalesce around the nominee.

Unlike Republicans who insist on perpetuating the big lie, we as Democrats respect the results of elections.

— Ritchie Torres (@RitchieTorres) August 26, 2022

The NY-10 race turned out to be progressives v. Dan Goldman, who is not exactly some sort of DINO, but did turn out to have various issues. He previously was generally known as the guy who helped to prosecute the first Trump impeachment. Turns out he's darn rich and is "relatively moderate," as one article noted.

My primary complaint (pun not quite intentional but okay) is that we should have instant run-off voting here.  He received about 25% of the vote. Fine to note that his opponents were foolhardy not to figure out a way to rally around someone.  THREE candidates received a fairly respectable amount of the vote, Assemblywoman Yuh-Line Niou (a charming sort I know in part on Twitter and as my current state senator's BFF) received about 23% of the vote.  Two others split around 35%.  

The article notes that the results are not final but Niou's deficit (however small in absolute terms) is likely too big to be overcome. A few years ago, there was an upset in a local DA race (the loser is now in the City Council) where there was an upset from counting votes after Election Day.  But, it rarely happens unless the margin is razor thin. 

But, especially given the passion of the race, Niou wants to make sure. That's fine.  My future congressman here (again, I was redistricted and will lose AOC by less than a block) wants to make an issue out of it.  I can understand (somewhat) Goldman rushing on Election Night to declare victory.  But, Torres here goes a step further.  He speaks of some "big lie."

What the fuck are you doing?  Three quarters of the people who voted did not vote for Goldman.  Alessandra Biaggi lost 2-1 and conceded, endorsing her opponent, probably in part since the district is less blue.  This isn't that case.  It is perfectly fine in this case to wait for the votes to be counted. It's a standard thing to do.  It is not fantastical or a "big lie."

There is some talk, hard to tell how much (I saw a bit on Twitter), that Niou should run on the Working Family Party line (Mondaire Jones technically won, running unopposed, the exact dynamics apparently confusing; but the party endorsed Niou before the primary).  I am wary about that sort of thing since third party splits have a tendency to be made by groups lacking some perspective and endanger splitting that results in what happened.  

I also would find it basically okay for a Democratic member of Congress to support the Democratic nominee for the position.  In the situation at hand, unless there was any realistic chance for a Republican upset (however slim, 2022 is so important and likely to be close, that being careful makes sense), I am sympathetic to the call for a WFP run.  Goldman is not the person the district's voters in the primary wanted.  The primary was so thinly participated in that it is somewhat misleading, but still 75% is pretty damning.  

I saw one account -- don't know how much to put stock in it -- that a leading Democrat in the House is no big fan of Niou.  This also might somehow be involved here.  See also Maloney -- Biaggi's opponent and a key point person on running candidates -- talking about how "moderates" won.  Niou, as a symbol of the left here (Jones is rather liberal too, but as an incumbent, is a bit different) might be seen as something of a divisive force. 

I'm not linking the article I cited since it's just not clear to me how much it should be considered.  The bottom line here is that there is some divisions in the Democratic Party between moderates and more passionate liberal leaning sorts, though as a whole, the liberals have followed the will of the majority as a whole.  This sort of thing is just blatant "screw you" material that is a horrible look.  The guy should apologize.

Elections these days (see Biden/2020) regularly are not clearly over on Election Day.  The special race in Alaska, for instance, is taking a while to finalize.  Many races basically are over but there still is a chance, however small, that the results might go another way. That is what is the case here.  The fact the apparent winner won such a tiny plurality and is a newbie to politics (not an incumbent) only adds to the need for caution.

Some decided to go another way. 

James Coddington Executed

Another execution without a final Supreme Court order beforehand. This is somewhat depressing though it is probably good policy not to have to worry about some last minute long-shot litigation with the rather morbid death watch now easier to do online. There is sometimes grounds for a late appeal. Nonetheless, I think it's good policy to make sure they are complete by forty eight hours before the execution. The state then has plenty of time to set things up.

James Coddington was executed by Oklahoma, which has a record in recent years of flubbing executions. Oklahoma also has a goal to play catch-up and execute twenty-five people in twenty eight months. This one was done over the recommendation of the Pardon and Parole Board, over twenty-five years after his crime:

Plans for Mr. Coddington’s execution were thrown into doubt for a time when the state’s Pardon and Parole Board recommended on Aug. 3 that his life be spared. An unusual coalition had formed over the past several weeks to oppose the execution, including a former director of the Oklahoma prison system and a Republican who once served as the speaker of the state’s House of Representatives. Both said that Mr. Coddington had rehabilitated himself and was far different from who he was when he committed the crime.

A son of the victim did not agree with this assessment, not really surprisingly, having a different opinion regarding execution than the children of another victim in a recently apparently botched somehow execution. Such sentiments are noteworthy -- to the degree we wish to know the full story, it's part of the humanity involved to respect and understand the victims' family -- but clearly not consistent. 

The murder arose when a twenty-something guy, apparently [the article cites the murderer, but if not true, figure they'd comment] high on cocaine, murdered an old man with a hammer after he wouldn't give him $50 for drugs. As these things go, even if someone gives a drugged up person money (or someone not so drugged up), they might be murdered as a witness.  Criminals of this sort are violently in the moment.

The crime deserved punishment and separating the person who committed it from regular society.  This happened.  The guy was in prison for over twenty years when he was executed.  The pardon and parole board aren't a bunch of softies either. If they figured that by his actions (which provides an incentive to those inside prison) he deserved at least not to be executed, I'm inclined to agree with them.  The governor decided to go another way.

This tenth execution of 2022 was not in my book somehow a horrible travesty.  Some pure of heart death penalty opponents would say so.  I think all the same it was bad policy and more troubling than some because of that vote to spare his life. If you are not a pure opponent (I'm not a great fan of the word "abolitionist" since it seems extreme, but I guess that's valid on some level), the facts here provide grounds to determine this is one of those cases where an execution should not occur.  

The line sometimes used is that a person should not be judged in an absolute way for the worst act of their lives.  Or something like that. The board here decided to follow that approach.  It encourages good behavior in prison and personal redemption of some sort.  Again, the governor went another way.  That is bad, even if the death of some murderer might not impress some much in way of moral wrongs. 

RIP Sherry Colb

I was surprised to see the news in the morning that someone I have read online for maybe twenty years (Verdict/Justia and Dorf on Law) had died. She had blogged another vehement  piece against Dobbs not that long ago. Since she was less a regular at the blog, the fact she didn't have an entry that recently did not bring much notice. Her last column was early August, but it's summer.  Her husband noted, however, she has been really painfully ill of late (cancer), and that her death was in that fashion was a mercy. 

She was a more serious sort than her husband Michael Dorf though she had bite and clearly had a sense of humor too.  Her death (at 56) underlines the importance of living a good life and appreciating those who (like her) made it better for others while she was here. Colb had various scholarly interests, including criminal law, and shared her husbands vegan beliefs.  She would regularly compare treatment of cows and chickens with abuse of women.  

I was wary about a blog post of hers dismissing the importance of the ratification of the ERA. I think she was likely right regarding how it would be applied to abortion rights by this crew.  But, long term, it might be a good idea.  I still am wary about applying equal protection to one group (I like its phrasing though) and ratifying it after the process has gone on so long.  As a matter of constitutional values, an amendment process that started around fifty years ago re-starting after thirty-five or forty years after a lot has changed is a dubious idea.

Anyway, I sent her an email about it since Dorf on Law now has no comments.  I can understand now why she did not answer, though some time back, I sent an email to her and her husband about their book, since I wrote a review about it.  Some time back, she did reply to an email.  I appreciate when people do that, especially since they have so much to do, including answering inquiries (as applicable) from actual students etc.

I thank her for all she did.  Life is made more interesting and enjoyable with people like her out there. Others online had more direct contact with her, both as a scholar and a person.  Such things are always nice to read. 

New York Primary Day #2

New York, as a matter of good policy, combined state and federal election primaries so that there was only one primary day. But, for reasons addressed here before, there was a split this year. So, the governor and assembly races (and U.S. Senate, though there was no race) was in June and state senate and federal House races were yesterday. I'm not sure exactly why they chose it this way.

I think it would have been best to have one primary day in August. The governor race (and lieutenant governor for Democrats) was not that competitive, but it might have bring in some more voters in the thinly involved race in August (saw some cite that only 3% of the electorate took part in early voting; doubt many more voted on Election Day). Plus, it would have saved the money required to run two races. I myself received another pay day as a poll worker. 

Still, seems bad public policy. Was there is a legal or constitutional reason for the choice?  Anyway, my front seat involvement set up some red flags other than low turnout. A good number of people came in, not knowing they were now at the wrong polling place. It appears that -- if they pressed the point -- they could fill out an affidavit ballot (which I assume would eventually be counted somehow), but no one pressed enough to do so.

Multiple Republicans (or those with no party) came in not knowing only one Democratic race was going on.  And, (again) one or more poll workers were not aware of what was going on either.  No, there was no "run-off" going on. Only the Democratic senate race had a competitive election going on.  A simple instruction, perhaps a worksheet, could be given to poll workers to read, especially those who will be at the desk checking in voters.

It looks like the newcomer who never served in government lost in that state senate race (early results were somewhat close).  I voted for her, but did not really have a strong feeling against her competitor.  Many did in presumptive winner of the NY-10 race, feeling Donald Goldman had various issues.  Goldman won by a point or two with less than 30% of the vote because progressives basically split three ways (something like 23-18-17) against him.  

This is ridiculous.  Yes, the progressives should have found some way to work things out.  Even if one of the three dropped out [the also rans even could have mattered with such a small margin], the end result could have changed.  What is needed here as a matter of sound democratic principle is instant run-off voting. The specifics can be debated.  Maybe, some sort of approval voting or whatever will work better than the IRV that is used for local NYC elections now.  But, unlike the U.S. and other British sourced countries, our "first past the post" system has issues, especially if there is no minimum floor for the plurality vote.  

[The reasons why the candidates did not rally around one candidate can be addressed, but it is a basic problem of social and political development when people resist joining against a common enemy. There are mechanisms, including voting methods, to help address it.]

There were various other notable races.  The special election to fill in the seat left vacant by the current lieutenant governor went the Democrats' way in a promising development.  Nadler beat Maloney.  My current state senator (Biaggi) not surprisingly lost her bid to defeat another Maloney, an important voice in Democratic strategy, who acts in ways some progressives resist.  (He noted in his victory message that "moderation" won.  Moderation is generally fine though can sound like a bad word.)

There were also primary races in Florida, including determining the Democratic choice to go against the governor there is Charlie Crist, former Republican himself.  He won by a healthy margin so guess the voters figured he was the best option.  I do not know who was the better option and think the senate race (Demings over Rubio) is more likely to be an upset.  But, I wish him luck, of course, since the current governor and presumptive leading option to go against Biden in 2024 is a damn troll.

As I noted in my early post about this primary -- I early voted -- I think it is important to vote in each election.  The state races on the ballot this year are of varying importance.  It did not really matter if Nadler or Maloney won, for instance, though some had a preference.  Some of the choices were more significant than that.  The things these people do in office surely is, even if no one person is important on their own.

Supreme Court: Order Day

We have the second scheduled summer orders. This one is a bit more diverse than the first (all rehearings denied), but nothing special appears to be in place.

Justice Jackson does not appear to have been assigned a circuit yet. There is this: "The application for stay pending certiorari addressed to Justice Jackson and referred to the Court is denied." Checking the docket number, it looks like a typical frivolous request, this time for a rehearing made to an individual justice. If one justice refuses, you can try another.

Speaking of Justice Jackson, I wrote a welcome letter to her, including in support of openness. In the past, I wrote to Sotomayor (responded once), Kagan, Breyer (including once in 2021 to encourage him to retire), Alito (complimented on his suggesting in the stun gun case that it raised religious liberty issues), Thomas (correction), and Roberts (complaining about the state of the Court). I also sent one to Kavanaugh, badmouthing him.

In the past, I am pretty sure I wrote to Stevens. Way back, I wrote and go a reply from Blackmun. Part of the letter (on a typewriter!) was criticizing him not being totally against the death penalty. The letter noted there were likely to be disagreements, but a few years later he DID go just that way.

===

The next (and last) scheduled summer order list is September 9th.  There were no more edits to this term's opinions since some in July.  Unscheduled orders will continue.

Supreme Court Watch

Death Penalty: Kosoul Chanthakoummane, 41, was executed last night by Texas. It was the second execution of Texas and ninth overall (two each for four states; one single). He was convicted of a brutal murder while on parole for another violent crime. The murder seems to be a robbery/homicide (calling Brenda Lee Johnson) with minimal returns (Rolex and a ring) for such a death.

No final SCOTUS appeals, after one failed last year. He argued innocence and dubious scientific evidence, but this seems more of a basic case of "why execution?" Violent crime. Two time offender. But, not "worse of the worst" in my book. Oklahoma has another execution next week. 

Supreme Court Commission: There was an article about the disappointment in the lack of a response to the Presidential Commission on the Supreme Court.  This might just reaffirm the cynicism of people that it meant anything though it was something of a self-fulfilling prophecy since while it was going on various liberal critics sneered at the commission.  This was so even though many of them greatly respected multiple people on the commission.  

There is some public concern in Congress regarding the Supreme Court, including regarding ethics, though other matters have received more attention.  So, for instance, the FBI director was recently asked about the Kavanaugh nomination and the FBI background check process there.  And, some attention to term limits, though I continue to argue they only go so far, and constitutionally are an uphill battle without an amendment. 

Justice on The Brink: Linda Greenhouse's book focuses on Amy Coney Barrett's first term on the bench.  The book starts with a sort of prologue, the (late) end of the term before, including an (overly optimistic) sounding notice that Ginsburg will continue on, still healthy and able enough.  She would die late September, perhaps as shortly as one fucking month too early to make it seriously possible for the seat to go to a Biden nominee.  

[Such is unknowable "what ifs" and some -- the same people who thought no one would be confirmed if Hillary Clinton won as long as Republicans controlled the Senate -- figured we would get a Trump nominee if she died January 19th.  I question if it would have went down the same way if she died a month later.  It would have taken a bit of time to confirm her using at least half-way credible means.  This would have ran past the election.]

The 2020 (October 2020 to June 2021 basically) term showed some signs (see the changing COVID rulings) that there was a new Court.  But, it was something of a "wait and see' with the 2021 term having the real great changes, from guns, abortion, and Breyer retiring.

Fulton v. Philadelphia  is a prime example of this, a Roberts b.s. somewhat faux minimalist special. That was the case where a city denying the Catholic Church from being involved in foster care unless they don't discriminate (the horror) did not result in Oregon v. Smith being overturned. The majority claimed as applied the policy was discriminatory (since exemptions were allowed in some cases), but as noted by the book, this basically was bullshit.  The liberals went along to avoid a worse result.

The book as a whole is fine.  It is an example of an easy reading book, which for someone like myself who keeps tracks of these things do not really tell me much.  There is nothing really novel in the book to provide a reader some special insights on the internal actions of the term.  It's a fine summary as far as it goes, especially if you are new to this stuff.   But, for me, to be honest, it didn't really add much for me reading the thing.

Such books usually have some interesting tidbits. For instance, it has a good cite of an op-ed by a Catholic law professor and theologian defending Democrats from claims of religious bigotry for asking Barrett some questions about her religious faith.  She was nominated in significant part for her faith, supporters expected her faith to influence her judgment, and it is just plain hypocritical not to allow that to be addressed.  

This has shades of Sotomayor and empathy. Some do not want to honestly address that empathy -- not the same thing as mere sympathy to one side -- factors into judging.  In different ways, since Alito has his own form of conservative grievance empathy.  As noted by the op-ed:

Barrett has indicated that her faith-based moral views will not affect her judicial decision-making. That stance is puzzling. Law and morality are not easily separable, in either Catholic teaching or the U.S. legal system. While official Catholic teaching distinguishes between law and morality, it does not separate them. And many laws call upon judges to make moral judgments. At one extreme, the Eighth Amendment prohibits "cruel and unusual" punishments. At the other, the doctrine of promissory estoppel in private contract law requires the enforcement of some broken promises, limiting remedies "as justice requires." A judge's moral views — whether religiously infused or not — are relevant to his or her behavior on the bench.

The barrier to religious tests does not mean religion can not be examine at all. In practice, it might be the case, though yet again, it will be in a selective way.  So, as Greenhouse notes, there is a reason why there are so many more Catholics on the Court (abortion) now.  A "religious test" of sorts were used.  Again from the op-ed:

American Catholics can’t say, on the one hand, that our faith has a public dimension — important implications for our public policy and law — and cry foul, on the other, when fellow citizens challenge us about those implications. We can’t have it both ways. That’s to be neither a conscientious Catholic nor a public-spirited American.

Anyway, the book is a useful summary of a snapshot in Supreme Court history, even if it didn't add much to my own knowledge.  One interesting tidbit is that she briefly twice references the sexual abuse charges against Kavanaugh, neither time even mentioning the name of the accuser.  This sort of thing tosses into the memory hole some more what happened there. She spoke about him strongly refuting the charges without noting HOW he did so.  Did any of that have any influence to his service on the bench?

There was some early reporting that colleagues thought Gorsuch was an asshole (this is noted in the book), but I have seen nothing about that.  For instance, a few were pissed when Ginsburg praised the Kavanaugh as a colleague, which disgusted them given his background.  This book seems to if anything add to this papering over the um rough edges.

Greenhouse also noted Barrett's strong academic career. I saw someone call her not very smart. There is nothing really ideologically neutral to that claim.  I also noted in the past that I was not really impressed by an argument in a Slate piece that her opinions on the Court so far has been substandard in any way.  It is true that her experience is not too respectable other than as a prime ideological victory as a justice.  

One final thing that could have been useful to add. Wikipedia tells me that John Roberts was asked some (apparently without people having the vapors) about his own Catholic beliefs.  

===

I reposted this entry to provide this review.  There will be a summer order list on Monday.  There were no new orders (as of now) posted this week.  I am pretty sure this will be the final version of this post.  With the usual "who knows" proviso.  

ETA: This is why, even during the summer, it just pays to wait until the end of Friday to post these Supreme Court round-ups. 

There was a confusing order regarding an election dispute in Georgia, which does not appear to be that notable.  The actual order on the orders page is annoyingly not justified (so messy) format-wise.  More notable, I would think there was a more clear way to phrase things. But, what else is new with these shadow docket things?  Again, we are left to others such as Rick Hasen (first link) and Amy Howe to provide further clarity. 

Jane Austen Book Club

I have been again stuck a few times lately finding a book that appeals.  The movie Bullet Train, for instance, is based on a book. Did not appeal, when I took a look at it.  As noted in the past, a lot of online reading facts into my current tendencies. Still, it isn't just that, since I have been online reading for a while.  

Anyway, I finally got around to read this book, after repeatedly watching the film.  There are various versions; mine was an attractive red paperback with questions, summaries of her six novels (no reference of Lady Susan though there is a passing reference to "The Watsons" as a character in the book; not sure if that is a reference to the book fragment), and a bunch of quotes through the years about Jane Austen. 

I have read all of Jane Austen's novels, including the fragments, if not all of her Juvenilia.  Some time back, there was a period when I was in the mood for her style.  I also saw (for instance, Sense and Sensibility, Pride and Prejudice, and Persuasion along with Clueless) and read various things related to Jane Austen though there are a whole lot more.  

The film is largely likely the book though it changes a few things. As a whole, I think the movie actually generally improves things by the tweaks. The best parts of the book not in the film are basically flashbacks of the characters' lives when they were younger.  And, Sylvia is clearly Hispanic in the book.  This is not really apparent in the film.  The people they picked for the characters on the whole work though "Bernadette" is in her late sixties and more an elderly character than the film version.

Prudie's husband in the film is more of a jock and the marriage seems more in trouble. This works off the book somewhat, but the husband there comes off a little better.  In general, more of a limited character. There is no bit in the book where she has him read from a book.

Also, the Jocelyn/Grigg relationship is fleshed out a bit more in the film.  One of my favorite line where Jocelyn is annoyed at Grigg ("you are going to stop at every light ... what are you Mark Twain") works off something he did (taking a scenic route), but the line itself is not in the book.

And, the characters are all (except the two youngest) somewhat older in the book.  Oh, and for some reason, the book tosses in that the lesbian daughter goes back to her old girlfriend, who was not a good match.  

Overall, I liked the book.  Good writing and I'm someone who finds it hard to get into fiction.  I never belonged to a book club. 

NY Primary Day #2

New York passed a state constitutional amendment to improve the way we district the legislature and our congressional delegation.

It was something of a half-measure and the system in place was applied this cycle is a way clearly problematic. The result was litigation and late in the day redistricting. This was a mess and there is some debate over the proper way it should have went. People who are upset at the 4-3 court of appeals ruling tossing the maps by my lights admit the maps violated its terms. It was a realpolitik issue of what should have been done about it.

Anyway, as we discussed here before, the net result was that new maps were drawn, resulting in various drama as people dealt with the new situation, and there is now a special election for U.S. House and N.Y. Senate seats scheduled August 23rd.   Early voting started today.  My district has one new senate seat to fill and no disputed congressional race.

(The original June primary dealt with governor, assembly -- map also struck down but too late for redrawing -- and (where applicable) judges.)  

As noted, my district -- like various others -- involve some intra-partisan disputes arising out of the new districts.  If it was my old district, my current assemblywoman is running.  But, this is a new district, and I will have to adapt to new people.  No Republican primary is scheduled. 

I have this idea that with people voting from now to Election Day, there will be rather limited voting each day.  A few hundred voted in my district on Election Day itself in June and that was when there was a governor's race for both parties.  There is also the absentee ballot route.  So, there is less of a need to vote in person on Election Day.  I'm working again as a poll worker.  Suspect it will be a lot of waiting around.

I again am reminded of the book that provided a philosophical argument regarding our duty to vote.  I do not know if it would be worthwhile to require it legally.  It very well might lead to some sort of problems, though if a "none of the above" option is provided, I'm unsure if there is any good First Amendment argument against it.  There remains a republican duty to vote and good policy reasons to encourage it more than we do. 

Local and mid-term elections overall are known to have limited turnout, especially primaries.  Primaries in some districts can be the real elections with only token opposition in November or a tough road ahead because a party chose the less popular option.  Thus, the Democrats hang on to the Senate for one more cycle under Obama basically because of a few extremists winning primaries against people who could have won later.

(I'll repeat now my support of instant run-off voting to insure that the winner of the primary has majority support and to avoid unnecessary run-offs that are sometimes in place to help advance that end.)

Local races are important because we leave a lot of power to local officials.  This is so even if certain races are not good policy (judges basically, especially in my state where there is little evidence most people know anything about these people)  or (currently) there is no major competition.  Sometimes, there should be more competition.  And, overall, people should be aware of who is running and what their role is.

New York -- like the Democrats in Congress -- has passed a lot of stuff in recent years. Put aside local constituent support, which is often an important role for legislators, having good personnel in local offices is important.  Voting provides a chance for each one of us to play a role here, including to become basically informed about who is running and what is at stake.  This need not be a "policy wonk" thing. 

Often, surely, it is not a gigantic big deal who exactly wins. For instance, I want Alessandra Biaggi to win one race the NYT editorial board submitted endorsements for, but even there, it would not be a total travesty if she lost.  And, that is one of the fewer races I have a stronger feeling about.

Anyway, I went to my local early voting location -- a few blocks away, past the Rite Aid -- and voted for state senate.  I supported the newbie supported by the local Bronx political machine.  I am seeing her face in various windows and such.  OTOH, a campaign worker from the other candidate stopped by my place (noted he got $25 an hour) recently to promote that guy's candidacy.  Unsure who is going to win, though name recognition is important.  My current city councilperson was out blanketed in her past race, the winner's face in much more places.  Important in a close race.

Gustavo Rivera has Biaggi's support and has a good record overall. But, he has been in the legislature for over a decade, and Miguelina Camilo looks promising. One article summarizes:

Camilo, born in the Dominican Republic, is a lawyer who previously held commissioner and associate counsel posts with the city Board of Elections. She is the president of the Bronx Women’s Bar Association and was a practicing attorney before she put her job on hold during the campaign.

From what I can tell, she supports the usual things, a few times something tossed in articles I saw suggesting she tries to be mildly moderate about some thing or other.  We are talking marginal things here though including a small donation to a IDC candidate (the independent caucus that helped Republicans retain power in the Senate) a few years back.  

I think her background and professional career is what matters here. And, it impressed me while the fact the local party (including the Bronx borough president, who I saw in person voting in June) people support her is also suggestive she is fine enough.  If the other guy was new like her, it probably would be tougher.  Giving someone new a shot is my tie breaker.

Not quite the biggest disputed race, but it's my own. 

SCOTUS Watch

Death Penalty: There is another execution scheduled later this month, but here is more on the first one Justice Jackson was involved in (no comment). It took place hours late without much clarity on why. It seems like they had issues (though a statement suggested otherwise) with the procedure. Recall the victims' children opposed the execution. 

Orders: There were three 8/10 orders, two requests for stays and a "motion to expedite consideration of the  petition for a writ of certiorari" for one of them. All were rejected without comment.  Here's a SCOTUSBlog case page for one and an article about the cases.  It's some financial related matter.  

Garland: The latest in the Trump drama underlines the number of things he did wrong. Colbert even had a great image -- a game show with a wheel of Trump crimes, and you have to guess what one is involved now.  

Anyway, the latest involves something that actually (since leaks is not really thing -- to be a fly on the wall there to see how things are different now than under Sessions/Barr) ongoing for a while now.  It involves Trump allegedly taking classified documents with him to his (as one op-ed called it) "winter palace."  This led this week to a search of Mar-a-Lago this week that got Republicans in a tizzy about how HORRIBLE it is. 

The whole thing was over the top "above the law" that really looked bad when the latest reports (wherever the leak came from -- often it is from the defense side) is that documents related to nuclear materials were included.  Whatever is involved, the foreign criminal types the Trump crew deal with suggests what is at stake here.  

And, Attorney General Merrick Garland in a workmanlike, principled, from what it appears skillful way [even if you can find some fault], continues to handle it all.  You know what? MAYBE, one reason he was nominated for SCOTUS is that he was a good choice, full stop.  Don't worry.  The usual suspects will continue to find a reason to sneer at him.

Inflation Reduction Act Passes House

Last year, I thought that eventually some form of Build Back Better would pass via the reconciliation process.  That is the inside baseball, but ever so important, Senate process that allows certain economic related matters to be passed by mere majority.  BBB would be climate related but also have a lot of social programs, including early childhood education. 

What a concept, I know, to have majority rule in an already mal-apportioned institution, but we have the Senate we have.  There still is a filibuster, if one limited somewhat, and not currently in place (though blue slips remain for district judges) for nominations.  Anyway, Manchin never did approve the whole thing. It was an act of treachery that pissed a lot of us off, up to and including President Biden.

[As with the filibuster, a 50-50 Senate is stuck with dealing with its last members.  It is not really fair that they can veto stuff the President, House, and the rest of the Senate majority wants.  

Still, when negotiating, it is what it is. Don't like it?  Including Manchin's rejection of the Children's Tax Credit? Get a bigger majority. And, maybe then you can even get at least partial filibuster reform.]

Ah.  It wasn't totally dead.  The social program stuff was largely stripped out (though it has Affordable Care Act stuff among other things left), but the now entitled Inflation Reduction Act [an exercise in branding, clearly] did pass.  The pending law (which the House just passed by a pure party-line vote) is particularly being promoted for its climate provisions.  

The dynamics of passing the bill involves some skillful negotiations by Senate leadership (thanks Chuck Schumer).  Manchin's agreement came as a surprise. The Senate was addressing “The CHIPS and Science Act of 2022” and it looked like the threat was that any idea of a BBB type bill would mean blocking that.  Well, CHIPS was passed, and then Manchin said "DEAL!"  Sorta looked like Republicans got played.

Anyway, the end result is a BFD (that is Biden talk -- Big fucking deal), especially given a 50-50 Senate.  It still is not as much as many wanted. The inflation part of the bill, for instance, very well be more name than something that will do much for inflation.  So some experts say.  I don't know.  There is inflation out there, but it's a worldwide economic trend, and its questionable how much any such bill will address it.  IDK.

If inflation is Manchin's thing, so be it -- it has other stuff too.  I'm for the climate and health care stuff myself.  The original version of the NYT article I linked noted some "young activists" were in particular dissatisfied.  This is the quote included, though even among this group, you could have cited any number of people (even AOC, unless she's no longer "young"):

“It’s hard to feel we really won, when the prize is not in line with the science,” said Alexandria Villaseñor, 17, who founded the activist group Earth Uprising. She said the bill “still doesn’t do enough to protect the most vulnerable among us, so we’re really going to have to start placing pressure on the government.”

As a blog comment to a post about passage, I cited that excerpt (the blog quoted from the article), adding:

Go at it. Including when you are old enough to vote. This is who they get a quote from? Oh well. Thanks Joe, Nancy, Chuck, and all the rest.

My comment was generally popular, but someone thought it divisive and implied an attack.  The person stuck with that when I noted I said "go at it," and did not intend to insult the person.  The person also argued the article was trying to divide people and we should not encourage such "framing."

As I noted, the main "framing" I saw was the person's own comments, including adding much more meaning to my comment -- and even to the article -- than to me warranted.  The person's back/forth with someone else, who was also made into a more negative person than warranted from my reading of the person's comments, added to this.  It to me is an example of an online comment that reads into a comment much more than warranted. THIS person is the one who was causing dubious division.

My comment was addressed to the article (the quote does not seem to be there in the most recent version) choosing ("this is who they get a quote from"?) this person to quote to express the faction that is somewhat unsatisfied.  My comment did not say she would not vote. Or, that her comment is necessarily even wrong. 

But, a few replies sorta took it as a dig against her, suggesting she wanted a pony or was immature.  Another (answering the person I cited) praised the content of the quote.  Again, I did not criticize her.  "Thank you" was a reply to the praise.  As if there was some need to praise someone who was not being criticized for her basic sentiments.  More power to her.  We will need people like her, pushing and fighting, in the future.

I suppose the replies are helpful to learn about what others are thinking. Like someone who claimed I was "mansplaining" (how does one reply? it will just seem like more mansplaining), perhaps I should just be philosophical about the whole thing.  There are lessons to be learned.  Still, I think that cartoon has some application as well.

Anyway, add IRA to the Democrat success pile.  One notable self-goal: Republicans blocked a $35 insulin cap, an across the board cap deemed not germane for the reconciliation bill.  So, sixty votes were needed; only seven Republican senators went along.  That still gives it "bipartisan" cred while opposition to a popular provision (in place for Medicare) is prime election time goal.  Some like Chuck Grassley claimed they really support it, but conveniently, what actually had a chance to pass was blocked.  

The other big thing on the table is voting rights. I see no avenue for that since you cannot do that by reconciliation. The one chance there is a limited voting rights reform, the Electoral Count Act matter.  That has a real chance of passing.

A Couple of Books

The Weight of Sand was first published in French and is now be available in English. Edith Blais discusses her captivity -- by Islamic extremists for over a year in West Africa -- mixing in some poetry. She actually managed to escape with the guy she was kidnapped with, an opening finally arising, though it surely still was a major risk (if one that went down quickly). It's obviously some story though I was really into her account to read the thing straight thru.

I read three books by Kristin Ghodsee and in one she references the autobiographical account (about the author's family in East Germany; he was born in 1970), Red Love. We basically learn about three generations of his family with an added bit about her mother's grandfather. Some parts are more interesting than others, and it is not really a full fledged account of life under communism (in part since his family is not quite typical). Still, it's a good read.

Morning Glory

I first saw Morning Glory in the movies during the week and there was like one other person at the theater. So I recall. The Whitesone (Bronx) since then closed. One of various movie theaters that I went to over the years that eventually did so.

The film is on some level as cotton candy as the morning show it is about. Still, it's fun in various ways, including a cast led by producer Rachel McAdams in roles where someone says "get me a --- type for this role." It also has various amusing scenes, including when she is upset a character carping at promos. She said something (showing her snarky side) like "the person who gave you promo approval must have been on crack." And, usually a film with Jeff Goldblum playing some character (in both uses of the word) has some good stuff.

It was on again this morning and is available free on demand. It's pretty fun, with a bit of actual real message behind it, especially since on demand you can fast forward. Harrison Ford making eggs to make sure she stays as producer is a great climax, including when she is just at the moment [seems like a kinda weird time for it] at an interview with the show on the background. She is like "what the heck is going on" as it goes down.

Constitutional Musings

I recently partially addressed responses in a discussion of Sandy Levinson's Wrestling with Diversity. I actually checked my copy and it looks a bit more boring than I recall it being. 

Anyway, he had a general response to the discussion. One thing he was particularly interested in was a discussion by someone from a Muslim perspective. I read and wrote about a few books by an author discussing Islam and Shariah in particular.  I also am generally somewhat familiar about it from other readings.  This is just a statement of fact. It does not mean I claim to be some "expert" on these matters.  I do know a bit more than the average person, at least, the average non-Muslim.

One thing he flagged was the diversity of jurisprudence, including a principle that recognizes there is no "one" answer to questions.  The author I read noted something similar, even if some "Muslim" countries and groups does not respect such religious diversity, humility, and ultimately freedom.  This is just one thing that "other" religions can teach us, even those we just write off as backward.  

Prof. Levinson has shades of the stream of consciousness approach that I am familiar with when he allowed comments.  The response has various bits that I would push back upon.  One philosophy of mine is that a good discussion can be good if it is good as a whole.  The areas of disagreement can be important or at least interesting.  I am one who will stop when I get to these parts to some degree. After all, I read footnotes and endnotes and always staid to the very end of the movie credits.  

[I do not do this while watching movies on television and anyway have not been to a movie theater for quite some time.]

This part bothered me, for instance:

The Amish are a paradigm example of a group that desires basically to be “let alone”; they do not wish to control the making of policy for the polity as a whole. To be sure, there are extraordinarily important questions raised as to the allocation of authority over children’s education, an issue much under-played at the time, save in Justice Douglas’s opinion[.]

This is the important if something idiosyncratic at this point Wisconsin v. Yoder opinion, which involves Amish parents not wanting to send their children to high school.  The opinion as a constitutional matter is unclear today after Oregon v. Smith altered the rights of people to have religious exemptions to criminal laws.  The principles still will help apply religious liberty provisions like RFRA.  Also, since it involves parental choices over education, it is treated as a special case. 

[There was some ridicule, including by Justice Souter, about the opinion trying to fit in certain cases by use of so called "hybrid" rights. Nonetheless, there is something to treating religious education -- basic inculcating of belief -- differently than some run of the mill act deemed necessary for religious exercise.  This is just one reason Yoder is really something of a limited case to determine free exercise values.]

Anyway, what is special about Justice Douglas' opinion here?  There are actually four (in a case with only seven justices involved) opinions in this case.  Justice Stewart (with Brennan) concurred to note that the issue of possible conflict between children's wishes and the parents was not at issue in this case.  Justice White (with Brennan) concurred to emphasize the importance of education, but noting the limited interests of the state  involve in this case counsels to hold for the Amish.  

The majority also talks about the "allocation of authority over children’s education." So what exactly is SL talking about here? It seems to me that multiple justices were concerned about the sensitive nature of the issues.  Stewart said Douglas' concern of Amish who might disagree with their parents was "interesting and important issue," but simply not at issue on the facts at hand.  I find in many of the discussions cited on blogs that the specifics often can provide important and interesting insights.

[One case cited in a footnote involves a lower court case concerning a mother in hospital who refused a blood transfusion because of her Jehovah Witness beliefs.  Interesting discussion; the judge found a way justify requiring the transfusion. One bit -- both the woman and her husband said that if a court decided it, they would go along with the transfusion as a judgment binding on them.  It is unclear if the judge made the right decision, but the opinion suggests the complexities that arise.]

A final word on the case.  It seems like something that sets forth a basic rule on constitutional law (free exercise applies even to action to some extent) while possibly avoidable. The Supreme Court in the 1920s protected the constitutional right to send children to private and parochial schools.  Why could the state and the Amish (or their lawyers) not find a middle ground, setting up some sort of Amish school for children after eighth grade?  

I get the idea a basic problem here could have been that Amish are particularly strictly principled -- there was a comment at oral argument that having representation in this very case was somewhat done under duress -- that this could not be done.  The argument was that the Amish feel puberty basically is an important dividing line.  

All the same, for some, that will happen before or after eighth grade.  It's a rather arbitrary line, especially since for much of their history, mandatory school following modern day educational guidelines would simply not even be an issue.  And, think about what actually is taught.  The concern seems to be the social interaction.  You can have single sex Amish schools, if necessary.  The actual subjects -- think about biology, geometry and others useful even for Amish life -- are not different from eighth grade.

There should have been a way to agree to have Amish to have students have a couple more years of school, which they could have provided themselves, with some encouragement (for parents that accepted it) for Amish students to be somehow involved in certain public school activities.  

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I recently re-read Daniel Farber's book on the Ninth Amendment.  I also wrote a book summary for the book review website.  It might eventually be posted there.  This leads me to toss in a few words about a largely forgotten case, Richmond Newspapers, Inc. v. Virginia, which involves the right of the media (and more generally, the public) to view trials.  

The basic right was upheld 7-1, with Justice Powell not participating and Rehnquist dissenting, but the justices split various ways on the specifics. The case is shows that there are some issues which leads to basic agreement, but difference of opinion on reasoning.

The case raises a range of issues.  A basic issue is the media's right to access to be able to report the news.  The question might arise about if the media has row greater than the general public.  One justice notes the media often acts as an agent of the people here.  The Supreme Court never as a whole firmly recognized a special right of the media here.  It left in place, however, many practices that treat the media with extra respect. Their own practices give the media more access than the general public.

The specific value of the press -- again though sometimes you see references that suggest freedom of the press is a reference to a printing press as compared to some institution or more vaguely some wider press function -- is also at times cited by the Supreme Court.  As one justice frames it, "securing and fostering our republican system of self-government."  So, again, a special First Amendment interest.

Justice Blackmun specifically was concerned with the right to public trials. The state argued that this is a right in place for the defendant and the defendant did not challenge keeping the press out.  Basically, Blackmun argue that a public trial is necessary for liberty as a whole, including to protect the general sanctity of the trial.  This interest can not be waived.  Noting the other opinions, he also noted anyway there are not rights at issue, including the First Amendment. 

I think the plurality opinion was right to see the case as one that touched upon a variety of rights. Trying to focus on one is unnecessary and does not really fully address what is at stake.  As one opinion usefully notes though at times the Supreme Court seems to ignore:

The Constitution was not framed as a work of carpentry, in which all joints must fit snugly without overlapping. Of necessity, a document that designs a form of government will address central political concerns from a variety of perspectives.

Okay, maybe you forgot where I began, but the plurality is specifically useful (and it would have been useful for Brennan/Marshall to make it the opinion of the Court partially for this reason) because it actually cites the Ninth Amendment (as does Planned Parenthood v. Casey).  The right to access to trials can be deduced from First Amendment and perhaps others.  But, even if it was not, it would be one of those fundamental rights, understood historically as essential, honored by the Ninth.  

Madison's comments in Congress also reveal the perceived need for some sort of constitutional "saving clause," which, among other things, would serve to foreclose application to the Bill of Rights of the maxim that the affirmation of particular rights implies a negation of those not expressly defined.

(And, examples such as association, privacy, travel, and the beyond a reasonable doubt standard  / presumption of innocence -- perhaps like this case also deduced from an explicit command, due process, but perhaps not, are supplied. Again, maybe Brennan might have seen the value of joining the opinion, even if it did not go as far as he might have liked.)  

A final word.  The Ninth Amendment is a tricky concept since it can cover a lot of ground.  The usage here is limited since not only does it involve working off enumerated rights, it involves matters of judicial procedure that are particularly something judges can be more comfortable handling.  Eric Segall flags this for judicial review in general in his two books.  

Rights are not just for courts. That is one thing to remember as legislatures and more are deciding abortion after the Dobbs ruling.  The two cases here also show that when courts decide things that they should look at everything involved.  When doing so, the case often can be decided on more narrower grounds and/or on more firmer ground.  This is also something that can be applied to thinking about things in general. 

SCOTUS Watch: Summer Order List Week

Order List: Orders are often major inside baseball for the Supreme Court. They often simply state that they rejected a request.  Some can be more important. Others do nothing though the briefing/case might be interesting. 

(I checked before posting. This list seems to be from the "crazy" file. Nice red flag is where a response is waived. Multiple petitions are handwritten. Somewhat entertaining reading, but not quite legally strong.

One asked: "Were the district courts' administrative court operations procedures in response to the covid-19 pandemic emergency forbidden by authority and unconstitutional because it was totalitarian and caused the overthrow of Constitutional protected liberties?"  One compared the leaking of the Dobbs opinion to the "attempt to encourage another insurrection against Judicial processes by an organized group to subvert judicial decisions as occurred on January 6th, 2021.")

The first scheduled summer order list, so mundane the Supreme Court itself (even after I dropped a line flagging it; hey, SCOTUSBlog marked it on their calendar!) doesn't treat it like other such order days, was just a list of re-argument requests (it is unclear the last time one was actually granted) denied.  

November Arguments: A few things actually happened last week. As Steve Vladeck has noted, that's Mets fan in Texas/shadow docket guy, the Supreme Court these days does a group do things in the summer.  A long time practice was for the Court as a whole to go on full recess, and individual justices having the job of dealing with some emergency order like a death penalty case or as addressed in The Brethren, some segregated school case.  

One thing that happened was an order dropped that divided the upcoming college affirmative action cases.  The reason (implicitly noted by the fact she didn't take part in the decision related to that case) is that Justice Jackson was involved in one of them, given her role at Harvard, so will not take part.  The cases are discussed some here.  And, were formally put up for argument as part of the November arguments (starting on 10/31).

Kavanaugh Hearings: My strong belief is that all three of Trump's nominees for the Supreme Court were tainted, but for somewhat different reasons.  The middle seat came on "regular order," so to speak, though the fact Trump was in power was a travesty.  

It is possible that the result would just be (as far as this is a "just be") conservative who would shift the Supreme Court even further to the right.  Something that long term warrants addressing -- expansion in part addressed long term problems of this nature -- but not in the same class as blatant thefts (or whatever fucking word you want to use) like Gorsuch and Barrett.  This is why my minimum would be two more justices.  

The problem turned out to be the nature of the hearings and who was chosen. They could have went with some run of the mill type -- Alito for O'Connor shows how this can benefit conservatives -- but nope.  My ultimate concern was not even that there is strong evidence he was some sort of sexual predator in high school and apparently (somewhat more hazy) in his college years too.  Mind you, for the Supreme Court, that's a lousy call.  It's how it was handled the whole thing.  

I am consistent enough that a I think people can repent from things they did c. 16-24.  If I don't want people who murder at that age to be executed, I think people can be accepted in high office twenty-five years later.  

But, at the very least [not that I would support him in general, he had other baggage -- he was basically a right wing hack/suck-up ... on Strict Scrutiny Podcast, this "good old white frat boy" concept was noted]  he could not be an angry troll about it.  I would note too that Sen. "I care about abortion rights now" Collins was basically as bad in her red meat speech supporting him.  I can do without the Justice Boof bits, but you know, you earned it.

This repeating of past sentiments is cited because the director of the FBI, Christopher Wray, testified to the Senate this week. He was asked by Sen. Sheldon Whitehouse -- who is particularly Mr. Dark Money's effects on the federal courts -- about the FBI's handling of the Kavanaugh nomination.  The basic sentiment of some is that the FBI just did the Trump Administration's bidding and was slipshod in investigating him.

I think a complete investigation about the Kavanaugh nomination should be done, to help address a range of questions.  For instance, I don't think a 80 year old justice there for 30 years "rushed" off the Court, in part because his son years earlier helped Trump as part of his banking job.  The gambling debts issue seems a red herring, though it's fine to clarify what that is about.  And, confirmation b.s. about Roe is not perjury.

But, especially given all the baggage and questions, I think we should have a full accounting. The appearance of impropriety is enough to taint the system of justice.  The FBI background investigation factors in here as well.  This thing is lingering for years.  And, that is going to be the case at times -- some issues won't be settled, they will linger.  

Wray -- who people argue should be fired for cause for his actions as a whole [including dereliction of duty related to 1/6 ... given the principle of FBI director independence, including the 10 year term, I admit I'm unsure if he should be fired ... not thinking President Biden will go there, especially given all that he has to do to keep balls in the air]  -- basically said normal procedure was followed.  If more should have been done, it seems he is passing the buck to the Trump Administration.  

The validity of this appears to be unclear.  My argument would be that we have to find out just what happened, including in the context of a confirmation that was not run of the mill.  What would have happened if the same thing occurred in let's say 2006 or 2012.  The usual suspects on each side obviously have preconceived notions.  

But, again, some effort should be had to get to a conclusion.  One thing that is tiresome is constantly getting the latest tweet or something about some new bit of news about testimony or some charge or whatever and it all ends in haze.  Life is haze on some level, that's why I say "but" type words a lot on this blog.  This paragraph starts with that word.  It does not mean some advancing of the truth here is unreachable.  

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Reform: This is a good reminder that there are various ways to have a constitutional court.  It is not parliamentary supremacy or our system. There is room in between.  Change does come.  The presidency, Congress, and the Supreme Court did not simply stay at the same place even in the last thirty years. The article flags possibilities of much bigger change.  But, they too come.