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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Friday, September 30, 2022

SCOTUS Watch: Long Conference Edition

As the Supreme Court prepares for a new term, they had a "long conference" this week to deal with pending matters from the summer. And, other matters.

Arguments: The Supreme Court announced they will have in person oral arguments, public included, masks optional. Otherwise the building will be closed to the public. I don't know if there is spacing in the courtroom, but there is not much seating for there to be too much. If there is oral argument seating, not sure if you can't have the building itself (with more chance of social distancing) open. I guess it is not too important.

The Supreme Court will continue live audio, which various law related people was very happy about.  I think it is fine, but again, it is not to me that exciting over waiting a little while.  Yes, it is a level of openness and transparency. They cannot edit the content and you have it right away.  I have not really read, however, them editing it any, and listening to an old "partial birth" abortion case, I even heard a protester yell left in.

The big improvement would be if they allowed video or even added opinion announcement audio.  They did not say if they will turn to opinion announcements, which they have not had since COVID began (and the pre-COVID opinion announcements of that term are not available).  Not having that this term (which ends on the first Sunday in October) was really notable, especially the lack of public dissents from the bench.  

Justice Jackson: There are thirteen federal circuits (federal, D.C., 1-11), each having a circuit justice (Roberts deals with the feds and the 4th, Alito his old 3rd and ideologically suitable 5th, Kavanaugh has 6/8, and the rest have one each, largely their old haunts, with Kagan having the 9th). 

Some use this to suggest we should have thirteen justices, but we aren't talking circuit riding or anything.  They don't do much except dealing with a limited number of emergency appeals, referring notable ones to the whole Court.  Roberts and Kavanaugh dealt with such a matter this week that is on the orders page.  At times, decisions are made by circuit justices that are only on the docket page of the case. 

Breyer used to be a judge in the 1st Cir., so logically had that.  Roberts filled in after he retired.  Now, Jackson, who clerked there, has that slot.  

[Justice Jackson and Dr. Patrick Jackson on the plaza after her investiture (Friday morning) Amy Howe on Twitter.  Amy Howe also co-wrote an account, which has a lot of details, including note that Justice William Douglas' fourth wife -- who I think now is around 78 so still younger than him at his death in 1980 -- was in the room.] 

The other notable Jackson moment is her formal investiture, a ceremonial affair involving Chief John Marshall's chair and everything started by Chief Justice Burger, who liked pomp and ceremony.  She was, of course, already sworn in after the end of the regular term.  This is a ceremonial matter and one that unlike the swearing in is more private, no video provided.  

Orders:  Along with the order announcing the new circuit assignments, there was one citing the solicitor general being allowed to take part in the oral argument in two cases, including a copyright matter involving Andy Warhol.  It is one of the "fun" cases of the new term that people are watching, in part since it is not likely to cause a lot of pain and suffering.

Ginni Thomas: The January 6th committee interviewed Ginni Thomas, who reportedly tried to get multiple state legislatures to reject the official counts in 2020 among other things.  It is good to get her on the record, especially with a lot of people talking about her, after reading article after article about it. 

She made "yeah sure" comments like Clarence Thomas not caring about politics or talking to her about her actions at all.  The whole thing is symbolic on some basic level since she has no real power and doubtful she has much influence.  Yes, she gets into the room and such since Justice Thomas is her husband.  And, yes, it was dead wrong (and impeachable) that he continued to take part in Trump election related cases. 

Do we really think she or Clarence Thomas had any significant role in the whole election theft attempt?  It is not trivial on some level, yes, especially when we are talking a member of the Supreme Court.  This also factors into the concept of appearance of impropriety.  We can note this while also being reasonable about what exactly their role was specifically.  

Relatedly, there is a Politico article about justices' spouses and proper disclosures.  When Ginsburg became justice, there was the well reported fact that her husband decided to change careers to avoid conflict. The article notes that Barrett's husband went another way:

A year after Amy Coney Barrett joined the Supreme Court, the boutique Indiana firm SouthBank Legal opened its first-ever Washington office in Penn Quarter, a move the firm hailed in a 2021 press release as an “important milestone.”

The head of the office, Jesse M. Barrett, is the justice’s husband, whose work is described by the firm as “white-collar criminal defense, internal investigations, and complex commercial litigation.”

Continuing evidence about the trade we got. Oh this too:

But if anyone wants to find out whether Jesse Barrett’s clients have a direct interest in cases being decided by his wife, they’re out of luck. In the Supreme Court’s notoriously porous ethical disclosure system, Barrett not only withholds her husband’s clients, but redacted the name of SouthBank Legal itself in her most recent disclosure.  

The article provides some other red flags involving spouses, but that is rather blatant.  There are recusal policies that the justices at least say they follow (again congressional legislation applies in a narrow area though the justices never admitted it legally applied to them).  This is the sort of appearance of impropriety that ethics rules address.  

Like "Clarence? he doesn't care about politics!"  there is a point when this is just piss you off blatant.  I don't care on a basic level here that it is somewhat symbolic. The "the rules don't really apply" concept does not stop here.  There is a general "fuck you, the rules don't apply to us" concept that touches important matters too.  

And, when Kagan publicly starts to be upset, Alito is out there whining about it.   

===

To answer that call, liberal leaders must size up the sources of political strength that undergird the Supreme Court majority’s audacious demolition campaign—defenses that are formidable but by no means invulnerable.

Finally, there was a useful analysis on how Democrats can try to address the current Supreme Court majority.  The analysis  does not provide a bunch of specific policy proposals.  It addresses targets, including a "political bulwark of the rightist justices’ pursuit of their agenda."

[1]  The 6-3 majority itself seems stuck in place unless a strong Democratic sweep, probably for two election cycles, allows them to "eliminate or degrade" it.  I'm unsure if this is totally true. Still, the key point here is to know your target.

[2] The court majority supports (unpopular) Republican political goals.  Democrats can use politics (e.g., the unpopularity of the Dobbs anti-abortion ruling) to make the Republicans less gung-ho about certain things.  I would add maybe there will be more of an opening in the lower courts, including to get some Biden picks confirmed. 

[3]  Public ignorance of the Supreme Court's agenda.  Citizens United was a major avenue of public discontent here and Sen. Whitehouse especially has been on the case of how "dark money" is behind nominations and choices of cases.  The public also figured abortion as a whole was safe.  We now see abortion rights is not. 

[4]  Perhaps the most vulnerable according to this analysis is the idea that the Supreme Court is above the fray, ruling by law instead of politics and ideology.  The presence of justices that were "swing" or did not purely match ideological/partisan issue voters were key here. Also, the way the latest people were confirmed, some of their off the court habits, Ginni Thomas, etc. 

The ultimate question is what this "constitutional conversation" and "de-legitimization" will get you.  Will the justices (and judges) be more wary at certain points to go too far?  Will the public accept more challenging of the courts (including lower courts) in certain respects?  Will the public accept more regulation or other court reforms?  Something else?

The analysis is not really about answering those questions.  But, there are questions that can be made. It is hard to imagine how to address the Supreme Court.  It is helpful to look at things from various sides.  

Miss Iceland (and ERA)

I saw Auður Ava Ólafsdóttir's latest book (a few years old) Miss Iceland referenced in the New York Times. 

Checking it out, I see she wrote Hotel Silence, and I vaguely recall reading that as well. I thought the other book okay. From what I can remember, it probably was better than the well reviewed Miss Iceland book. The basic style might be the same (I''m reading it in translation), but recall there being more plot to grasp on to in the other book. The main character might not have been in firm control of his life, but it wasn't so depressingly tired. Even if this is the intent, it is not great pleasure reading.

The book involves a young Icelandic woman in the early 1960s, who leaves her family to try to start on her own as a writer.  She is around 21, and a few stories and poems were published.  She has a woman friend with a young child and largely absent husband as well as a gay friend who struggles with his sexuality.  She eventually falls into a relationship with a guy.  The last forty or so pages involves her abroad in Denmark (I guess) with her friend, this time we have a few letters back/forth.   

When she first comes into town at the opening of the book, a promoter of the Miss Iceland beauty contest tries to convince her to take part. She apparently is very pretty though rather not flaunt it, preferring pants.  She turns him down, but the title seems more of a metaphor.  The cover seems to leave open the idea she would join eventually to have money or something to get out of Iceland. That doesn't happen. 

My overall complaint here is (is this intentional?) she seems to be basically floating through the book with all of the main characters fairly unexciting to read about.  None are bad or anything, though bad forces might threaten one or more.  But, they are all so bland, fatalistic, or otherwise blah.  

The book is readable enough and it is good in a way to have a flavor of another culture and its authors.  I just rather the characters, including the main character, be more pleasant and interesting company.  

===

I saw this article, which I have dealt with in the past. I won't repeat myself except to note the ERA does more than expressly ban sex discrimination. It does so in stronger language that in part gives Congress a stronger hand to legislate.  I agree that the Barrett Court very well might apply it narrowly though not sure if the effect would be meaningless. LONG TERM, it might matter.  Short term? I agree it is sideshow. And, most seem to agree.

Friday, September 23, 2022

A Couple of Books

Dr. Julia Shaw is psychological scientist and wrote a book entitled Evil.  This short book (under 200 pages) is a rather different matter and a more personal based account.  (I assume so -- I did not read the other book yet.)  

She herself came out as bi and her writes a book entitled Bi: The Hidden Culture, History, and Science of Bisexuality. The book covers those subjects, including a short history of the study of sexuality starting in the late 19th Century.  The book ends with an openness for freedom in sexuality in general, a late chapter supporting threesomes.  

(She drops a reference that she is married though does not talk about it.  For instance, it is not clear if it is an open marriage.  She is married to a guy.)  

The label "GLBTQ" ("queer" is used repeatedly here), as well as an expansion of the acronym (such as adding "A" or a general "+"), is familiar to a lot of people.  The "B" is a somewhat unexamined category, including how bisexuals are looked down upon by both gays and straights. The book notes that bisexuals are more often in the closet (logically probably since you can express yourself sexually partially) than either one.

I discussed a book from a few years ago about adultery earlier this year.  This book is a good one to at least check out (some of it is probably skimmable) to get a full understanding of modern sexuality.

===

Before reading this book, I was trying to finish a 20th book in the summer.  I finally decided to re-read John W. Johnson's book on Griswold v. Connecticut, which I own.  A quick and generally good read.  The book is not a comprehensive one (Liberty and Sexuality, a tome I also own, suggests what this might entail), but is overall a good edition to the casebook series of books on the Supreme Court.  Such books provide a snapshot of the Supreme Court as well as using one case to discuss a wider realm of law and policy.  When done right, I really like them.

(The book does not really provide both sides of the case though we get a bit of the state's case. What happened to the guy who argued the case afterwards? We also get a passing reference of a birth control advocate without a reminder it is Katherine Hepburn's mom.)

There is a good chapter that summarizes the various aspect of privacy that developed before Griswold, a subject that I have written a lot about.  The subject has a lot of fascinating parts. For instance, check out this summary of a companion case to Poe v. Ullman, a sort of false start:

Both are law students, Mrs. Trubek being twenty-one years old and her husband twenty-three years old. In March, 1959, they consulted a physician to obtain information and medical service as to the best and safest methods for the prevention of conception. They have a desire to raise a family but first wish an opportunity to adjust, mentally, spiritually and physically, to each other so as to establish a secure and permanent marriage before they become parents. A pregnancy at this time would mean a disruption of Mrs. Trubek's professional education. When they are economically and otherwise prepared to have children, the plaintiffs desire to have as many "as may be consistent with their resources, so as to insure adequate provision for each and all of them." The plaintiffs believe that they have a moral responsibility to have only as many children as they feel they can provide with the optimum individual care, attention and devotion. 

The extended battle to change the ban on use and sale of contraceptives in Connecticut was largely focused on birth control as a health matter.  This case underlined the wider purposes.  Prof. Melissa Murray talked about this as well in a good article. The battle continues (Trubek wrote an op-ed in 2012 on the fact).  

The book is from the early 2000s and ends with Lawrence v. Texas and the early fight for/against same sex marriage.  

A word about a related matter. Some keep on bringing up Loving v. Virginia, suggesting Justice Thomas (in an interracial marriage) is a hypocrite or something for not respecting a right to privacy.  This is an asinine cheap shot.  It's largely a racial discrimination case.  He is not going to threaten Loving for that very reason.  Likewise, his argument is that "marriage" is traditionally a man and a woman.  Focus on why the person is wrong, not making easily targeted sneers.  A personal pet peeve.

SCOTUS: KILL KILL KILL (Why? Just Because)

Ginni Thomas reportedly agreed to be interviewed by the 1/6 Committee. Will see what comes of it, but that's appreciated. Justice Thomas violated ethical rules, including as set forth by congressional legislation, by not recusing in Trump/election related cases. He should resign. 

 ===

Alan Miller, a trucker driver apparently with some issues, decided one day to murder two co-workers (and a third person he used to work with) with whom he had some sort of grudge. Alabama sentenced him to die. He probably has some sort of mental issue that makes this dubious. 

[ETA:  The mental concern still holds even if he does not meet the strict test necessary to make an execution unconstitutional.  There is regularly a reminder of the fact murderers are involved here when people are upset at the end when they are executed.  These people regularly have problems that raise various concerns.  

But, yes, many of them committed particularly horrible crimes.  Miller is a bit harder as a subject of scorn. He didn't kill for money, an act of cruelty, or under some sort of drug induced rage.  For some reason, he snapped, and murdered three people.  Helped by our free access of highly dangerous weaponry.  He was properly confined. Execution is less defensible.]

Over twenty years pass. Alabama, who botched two lethal injections recently, decided to go for a third.  SCOTUS last year rejected without comment an argument that the 10-2 jury decision to execute violated a former ruling that required a clear understanding from the jury what exactly their judgment for death entails. 

The problem here is that it seems like Miller took the opportunity to be executed by nitrogen gas. Others have tried to be given that option, but for whatever reason, it was determined they were procedurally blocked. A district and court of appeals, and Alabama is not liberal territory there, both decided that Miller had the right to do so based on the facts.  

To quote a local paper:

Miller, 57, maintains that he chose to be executed by nitrogen hypoxia in 2018 because he is afraid of needles and had previous employment experience working with chemicals. He has accused state officials, who say they have no record of his election, of losing a form he says he submitted to prison staff in which he chose death by nitrogen hypoxia.

Lethal injections, with procedure problems, lack of drugs (or the drugs best for executions), and other issues have not been found to be as ideal of a method as first assumed. The latest method (though there is some suggestion at least one state wants to try the firing squad or electrocutions again) deemed ideal is nitrogen.  Supposedly, will just be painless.

For whatever reason, even though it has been talked about for a few years now, no state actually used it.  One concern is that it will leak out and endanger staff.  For whatever reason, after Alabama suggested it would do it, they decided not.  They argued Miller didn't have proof he chose the method (dispute over that matter has led to multiple lawsuits).  Again, the courts determined that the facts are on his side. 

Again, I don't think he should be executed anyway, especially after over twenty years from conviction.  But, if he wants to use nitrogen gas, well, the state offered the choice.  The district court agreed. The court of appeals 2-1 upheld.  It is ridiculous the procedural process in place sets this up as a last minute litigation issue -- the case going to the Supreme Court shortly before the scheduled execution and the final decision happening after 9PM -- but well, that is how things go these days.

The Supreme Court (5-4, Barrett joining the liberals, not the first time she did so in a death penalty case) vacated the stay of execution. Why?  Because they said so.  Neither side actually explained (1) why a factual based decision should be overruled or (2) why it should not be.  Since Sotomayor has repeatedly been concerned about the dangers of lethal injections being botched, I sorta hoped she would at least have a statement.

This is outrageous.  The vote is wrong.  It's more wrong to vacate, but it's wrong not to explain dissenting too. The justices (or whatever the Trump trio are) are supposed to explain themselves.  But, it's the shadow docket. So, again, the "shadow knows" why.  

Fuck you.  Seriously. Fuck you.  It's someone's life.  If you aren't going to strongly dissent, and the Supreme Court yet again finding a way to avoid having a state use a method that allegedly is better is a good time to do so, you just let them not be a credible institution without any effort.  

Justice "we will get some of her insights about criminal justice" Jackson isn't helping much yet either.  

Alan Miller being executed by lethal injection is bad. The United Supreme Court failing to do the bare minimum isn't great either.  

===

SCOTUS lifted the stay of execution with about three hours left local time before the writ of execution runs out. It's ridiculous that the whole thing is scheduled this way. The sane thing is to have a bigger buffer for the final appeal.

Still, three hours would seem to be enough time. Something happened. The media witnesses was not present when from the moment the prisoner enters the execution chamber.  So, it is not clear what happened.  At 11:47 PM, we get some implictation maybe things were cancelled. The government will not say when asked by the press if he is still alive.  

Was something botched AGAIN?  Over a half hour later via reporter on Twitter: 

UPDATE: ADOC Commissioner says they did start trying to access Alan Miller’s veins but due to time constraints there wasn’t enough time to finish the protocol before the death warrant expired. Miller is alive and back in his cell.

Yeah. Well oiled machine. So glad not a single justice ("justice") explained their vote.  The ability to get a blow by blow account is useful, morbid, and in these cases rather depressing.  

The incompetence underlines that the lower courts were correct and the Supreme Court's action is outrageous. The state repeatedly had issues with this procedure.  Another procedure was at least theoretically available. If not, apparently the state can't be trusted doing the other right.

ETA: There were no orders on Friday.  

A bit more on this case.  This NYT article summarizes things well. I also saw a few people suggesting Barrett's Catholic faith influenced her decision to join the liberal in dissent.  We have a small sample size. Maybe so. Still, her faith didn't lead her to join liberal dissents in late Trump executions. 

Baze v. Rees was an early Roberts Court case on method of execution procedures. The justices 7-2 upheld the lethal injection procedures in place, splitting on rationale.  

One point noted by the plurality was that historically the method of execution was generally a matter handled politically, and on that front the trend was in a positive direction.  Alabama took advantage of this opening and added a new execution method.  System worked!

Not quite. The state found a way around actually providing that method. They also repeatedly had problems with procedure.  Each state is not equally at fault in this respect.  Oklahoma also has stood out.  From what I can tell, on this specific issue, Texas does not. This is not just "you will just find something wrong" thing.

This case provided a chance for the Supreme Court to send a message that the death penalty is both constitutional and procedural due process should carefully be followed.  Instead, it (yet again, without explanation) enabled procedural problems. And, since it did not actually explain itself, lower courts basically have to read the tea leaves on what is appropriate.

The botched execution also highlighted the state's issues with media. A major concern over the last few years has been providing openness regarding execution procedures, including the drugs used.  States repeatedly have not provided information here.  They also have had problems with media witnesses, including limits on the number, botching making sure they could see the execution, and limiting how much of the procedure they case see. There were also theater of absurd concerns about what women witnesses were wearing.  

This raises both due process and freedom of the press concerns. Media witnesses provide an important surrogate to the general public to help make sure things are going along properly.  At least, in general, the media is there to tell us what is happening.  And, if the information (such as what drugs are used and how they are obtained, including possibly drugs that won't do that job) is not available, there is an increased chance of harm.

I am against the death penalty.  There is a different concern here. The public needs to be fairly assured that the government is properly doing its job.  We might not like various governmental policies.  A more basic thing is a bare requirement of due process.  There are various ways to ensure this happens, even with our currently tainted Supreme Court.

I am wary in assuming that nitrogen gas will significantly improve the status of executions.  It does remove certain concerns, including trying to find drugs and medical ethics concerns involved in using a medical method to execute.  A few states now have it as an option.  A few years in, however, we have yet to seen someone executed using it. 

Sunday, September 18, 2022

NY Sports Have a Good Afternoon

I am rooting for Baltimore, who have a rather good chance to win thirty more games than last year and have a winning record. They hung on after coming back to salvage a game versus the Blue Jays. And, got a triple play too. The Braves can't lose, so luckily the Mets went ahead late to sweep the Pirates to keep a game lead. Yanks offense (now up 12-6) crushed the Brewers. So, that is a taste of baseball.

The Jets and Giants (again on the same time, 1PM, as it often seems to be when you'd think they would want to split them more) were close to the Browns and Panthers for much of the game. The Giants hung on late after kicking a long field goal to win 19-16. Their defense and just enough offense is winning them games so far. The Jets appeared to be gone after the Browns got a first down late. More so (though they really should have not did it since the Jets had no time outs) with a score with under two minutes.

I checked the Giants game after a stupid penalty and then a first down seemed to mean the game was over. But, that score and missing a XP showed the Browns had more stupidity in the end. Jets somehow quickly scored, got an onside kick back (is that even allowed these days?), and scored once more. Up by one, we just had a "well the Bills blew it with less time left" situation. And, Browns was a good throw or two away from having a shot. Interception. Game. Jets/Giants/Mets even were all on basic channels (2/5/11).

ETA:  New York continued to do well on Monday.  Bills with another laugher.  And, Mets welcome back Scherzer, who pitched six perfect, and got his 200th win.  

Megill came back and gave up a hit, but he did okay.  Mets also clinched at least the Wild Card with their defeat of the Brewers, one of the two teams (they have a Braves series left) with winning records they have to play the rest of the way.  

Wedding of a Lifetime

I was only half paying attention to this movie when it was on Hallmark (title sort of sounds like it should be on the Lifetime Channel) last night, writing a blog post most of the time. But, it was a mostly pleasant film with two good leads. The woman is more familiar to me from a few Hallmark films though the man also was in various things, including Mean Girls.

The film seemed to go pretty fast. The idea is a couple decides to break up, but they were submitted to some wedding contest show. To help their businesses and to have a fun vacation as well as not to make their family unhappy, they decide to go. They plan to lose, but work and know each other so well as well as not wanting to lose (the guy was an athlete until an injury) that they never manage to do the losing part.

The contest takes a chunk of the film. They have so much fun and close quarters show how much they care for each other. So, they decide to be married after all. I wasn't paying attention, but it is hard to tell what the usual complication that always pops up at some point was here. Whatever it was, it didn't last long, since there just wasn't too much time for it to happen. Good pacing, nice leads, and no real problems leads to a net enjoyable film.

Saturday, September 17, 2022

Hopscotch

I have seen this and read the book (the author was involved in the film, which is a lighter version of the book) Hopscotch. I haven't seen film for a while and it was enjoyable again. The movie is light, well made and acted, and a nice travelogue alone with various locations.

I was looking, for instance, at the effort made simply to make the pictures on the wall of Matthau's boss. Some of the stuff in the film is not totally believable, which is nothing new. And, some might want more complications. But, if you wanted a light amusing film with a bunch of "hey! it's that person!" this will do it. That clip is charming too.

More On Kagan

Justice Kagan used a patent case involving a Spiderman toy to not only have some fun with superhero references, but also to defend stare decisis (in that case statutory). The senior justices of the time (minus Scalia) dissented, Alito for Roberts and Thomas. So, Scalia assigned the opinion. 

She talked about it in a recent interview, one chance for her to discuss her views and concerns. It would be interesting to know though my assumption would be that she had some sort of pre-interview discussion with the dean/law professor who interviewed her.  If that is often done with talk shows, I think it would be fairly likely it done in cases like this.

After writing the last entry, I listened to the whole interview. One of my things is that there is often some details that are lost when reading summaries.  It's not going to be possible to "deep dive" everything, so you have to trust the summaries some.  Nonetheless, there is going to be something lost.  There are usually some additional details.

I don't think anything really significant would be added there in this case. It does provide some more detail.  For instance, when asked what she means when she worried about legitimacy, Kagan argued it involved justices not acting like a court. Eric Segall of the constant #notacourt fame thinks the Supreme Court is not a court.  I think he exaggerates.

What does Kagan mean here?  She cited three things:

  • Precedent
  • Consistency (particularly regarding judicial method)
  • Restraint/Judicial Minimalism 

Justice Kagan has been fairly consistent on the precedent front, including when the Supreme Court overruled a case to protect a right to unanimous juries.  Kagan in the interview argues that you should rarely overrule a precedent, particularly noting when a doctrine or case no longer works. This would include something past its time (like old fashioned gender roles).  So, simply saying there is error is not enough.

For instance, some liberals (such as RBG) felt that the Supreme Court should overrule the dual sovereignty rule for double jeopardy. The same basic act should not be open to prosecution by a state and the federal government.  The Supreme Court recently upheld the old rule with only Gorsuch and Ginsburg dissenting (Thomas actually did not, after earlier on suggesting he might).  

I have felt the old rule dubious, but actually am sympathetic to upholding it.*  Also, it rarely actually comes up, especially since the feds have policies to avoid doing it in various cases.  Also, there is specific cases where the feds might have too much of a role in the state prosecution.  So, it doesn't happen too much. 

Kagan did join a 6-3 dissent in a case involving unanimous juries, joining an Alito dissent that had a few dubious comments.  I think she did it for consistency sake, since it was a sympathetic case, especially since there is some evidence that not having unanimous juries have negative results regarding racial discrimination.   In fact, I think she could have concurred on narrow grounds without disrespecting precedent much at all.

(The law actually already changed, leaving ONE state as well as Puerto Rico not having unanimous juries and even the law in the one state -- Oregon -- had dubious roots.)

One case where there might have been a bit of bit was one involving benefits for Puerto Rico, including the lingering effects of the Insular Cases. Nonetheless, the case turned out to  be 8-1, and did not turn on overruling those cases.  So, I'm unsure really where Kagan's respect for precedent really hurt much. It would interest me what she will do regarding the abortion case (Dobbs), which is now precedent. 

As to method, Kagan was not a big fan of originalism. She argued that in application, it seemed rather flexible with time periods, evidence, state of generality, and what exactly is used (original understanding or original practices).  The result is it seems liable to be used for results-oriented jurisprudence. She also argues that the Constitution itself generally are made up of open-ended provisions that by text and design are not logical for that approach.  Originalism is not originalist, maybe?

She is more of a textualist.  A textualist, mind you, is not the same as an originalist though some people define the latter term in such an open-ended way that you might think so. To be clear, not a big fan of that last article.  On that front, she flagged her dissent to the "major questions doctrine" exception to text. And, she cited her dissent in the voting rights case. Since I wrote about that on another blog, I will cite a discussion of this opinion.

Kagan argued the Supreme Court looks bad when it goes too far when it doesn't have to do so.  It looks political instead of a court. She called foul on an excessive use of the "emergency docket" (she called it the "shadow docket" at one point, somewhat embarrassed as if she knew the baggage of the word).  Kagan noted it was understandable to want to intervene in use of single judges using national injunctions. But, even there, she argues that there should be another way to deal with the situation. 

Steve Vladeck (whose book on it is now in pre-order) has written a lot about the shadow docket.  I do think a good case can be made for abuse there, including major policy decisions in inappropriate ways.  As to precedent, there are various cases where red flags can be cited, though again there is the trick that it is unclear how many cases Kagan restrained herself to uphold some conservative decision.

Breyer and Kagan did join some conservative opinions for what people assume are strategic reasons, the most blatant being what amounts to be an expansion of unconstitutional conditions principles in the Affordable Care Act Cases.  So, it's important not to be too cynical here, especially since people over time argued that their strategic returns got to be less and less.  And, off the top of my head, I don't know of any old precedents Kagan refused to go along with of any note.  

The 6-3 Court is doing more to flex its muscles, including both overruling precedent and going further than the cases reasonably warrant.  And, the logic (so to speak) of the conservatives leave something to be desired. Toss in the results are bad, you can see Kagan's concerns.  

Kagan argues that mere popularity of decisions isn't the only factor. That's true enough since some results like defending unpopular speech are right even if people don't like them.  Sure.  The abortion case was unpopular AND had problems that arose from other issues too. The merits was always going to matter, but so did the other stuff, including the reality that the whole thing was stacked against losing side.  

The last thing to think about is what to do in the future. I hope that some time down the road we will have a better Court. How should we deal with the problems of this one?  We will have years of precedent.  Are we stuck with them via stare decisis?  How do we get around it?  Will it take a major political change ala the New Deal? Constitutional amendments? Something else?  Will how the precedents were formed factored in?

Kagan talked about the two judges she clerked for, including a lower court judge who served in each branch of government.  She really didn't talk about her own diverse background (instead of Congress ala Breyer, she had long experience in academia and is the only non-judge to be nominated to SCOTUS since Lewis Powell). But, I think her work as a clerk, two presidential administrations, and academia did provide insights. 

So, what about those three criteria?  I think the current Court is problematic in part for those reasons. It is doing too much without enough justification. The Warren Court did a lot, but the time was right for most of it, and the Court as a whole reflected the governing coalition.  That last bit is an important part of things that Kagan not surprisingly avoided. It hits too close to what might be deemed "political" matters.  

Contra to Roberts talk of people disagreeing of results alone, it most definitely part of the problem.  I won't repeat the last entry on that point except to say it is clearly part of why the Court does not seem legitimate to many people.  The Court is not a fair reflection, even to the degree nominees are not a simple 1:1 match to the population, of the current majority.  A basic reason a result to a broken nomination process.

Breyer was challenged pre-retirement  for attacking those who questioned the Court. He wrote a selectively written book (more an extended lecture) warning people who wanted major change though beforehand granted he was open to the idea of term limits.  The general assumption is that he lived and learned a bit.  I wonder (if he saw them) how he took the Kagan remarks. 

===

We will see if there is any orders or other news (as it seems to do) that pop up next week. There is an execution scheduled. If it goes down, I will write a bit about it.

===

* ETA: If you are curious why I feel this way, basically, I found Justice Alito's opinion (when he isn't being a hack, he has some good moments) pretty convincing.  Federalism includes the idea that someone might do a wrong against both the federal government and state by doing one act.  In the process, two sovereigns have different interests.  

Sometimes, the feds might be involved in the state prosecution, so it would be double jeopardy. Other times, it might not be good policy to have a second prosecution, or to have the federal government step in. But, as a matter of basic constitutional principle, I think maybe they were right there.

Friday, September 16, 2022

SCOTUS Watch

The problem wasn’t just the losses; the problem was that his team moved the game to another field, then stole the ball and replaced it with a time bomb, then changed the rules, then lied about it, and then set the entire field ablaze. Now he wants everyone to shake hands and go home. The public is not so inclined. He is far too smart to believe we are all this stupid, which suggests to me that he knows we are right.

Dahlia Lithwick is back on Twitter, after being off a long time, in part because she has a new book out. 

She continues to strongly make her case at Slate. When Slate had a "fray," I read her takes on the Supreme Court. I thought they were a bit too snarky and coy sounding myself. Her bluntness (shared by Mark Joseph Stern, who is also a lead analyst there) is useful and on point though here. 

This immediate issue here is Chief Justice Roberts coming out last week (I first saw commentary of it late Friday night after posting my last wrap-up) at a judicial conference and being concerned about the strong attacks. He wanted to make clear merely opposing results does not make the Supreme Court illegitimate. Good thing there wasn't a range of other things!

And, if the opinions are so bad not to be credible, what opinions say can be a problem.  His argument was wrong all around. As Dahlia notes, the guy knows this.  He was bullshitting  and knew it.  This might add to why Justice Kagan is out there saying things like this:

“When courts become extensions of the political process, when people see them as extensions of the political process, when people see them as trying just to impose personal preferences on a society irrespective of the law, that’s when there’s a problem — and that’s when there ought to be a problem,” Kagan said during an event at Northwestern University School of Law.

Kagan is savvy enough to know how her comments are being picked up here.  When justices in public forums move past bland statements, they probably are trying to send a message.  Sotomayor has mixed kumbaya (just love Gorsuch! he's my pal!) with some bite (if you want change, speak out).  Kagan has been more diplomatic.  But, she has maneuver room on a 6-3 Court, and sees how things are going.

===

In our last episode, we had a cliffhanger regarding a dispute involving the Jewish Yeshiva University recognizing a LGBT student club.  The matter was held up with the expectation that we would get a full judgment soon.

The Supreme Court 5-4 (per curiam with Alito in dissent for the usual suspects, here joined by Barrett) this week correctly noted it was too soon for them to take a pending state case.  There were other means of relief.  I do think even here, as compared to simply denying it as clearly premature, sends a message. Be careful, or we will grant relief.  It is not great. 

Alito started off misstating the facts (talk of instruction when only recognizing a club, one of many).  He tossed in some bad argument. And, a general "why don't you just give us what we want, we will win long term anyway" message.  The whole thing was only a few pages.  It is not some life and death matter.  

The actual issue is tricky. But, this shadow docket maneuvering is a sign of the times, including SCOTUS favoring of some religions.

One little inside baseball bit here also is that the order was placed on the "opinions related to orders" page since Alito's opinion is to an order.  But, the Supreme Court itself also released an order with a brief opinion attached.  So, why not put on it the more known Orders Page?  It would be even better if the front page had the "most recent" stuff that happened.  The website had gotten somewhat better, but it still has issues. 

ETA: There hasn't been a correction for a while. I noticed that the opinion here has a correction, "Alito dissenting" placed too soon.  The first page was the order of the Court.  It was corrected the next day though if that was immediately posted, I missed it. 

===

Topical Book: After being lucky, I had some trouble finding a good book. One attempt was The Abortionist by Rickie Solinger, which had a 25th Anniversary edition a few years ago.  This might be influenced by my not liking some books that once upon a time I did (online reading being a big factor in not being able to consume some stuff), but I did not like the style.  

The book seemed clunky, instead of just going with a straightforward account of her life.  (Born in 1895, the subject performed abortions illegally for around fifty years, settled in the Northwest.)  The first chapter involves a woman getting an abortion in the 1960s.  It is a good discussion, including her fears and her horror when the the abortionist was arrested, and the woman was put on the stand, her intimate life put on display.

The subject material is surely of interest, including dealing with abortion in the criminal age.  But, I did not like the style of the book.  It also didn't help that the woman is not really portrayed as a very likable person, even if she provided an essential service, often helping those who needed it without charging them. She had a narrow escape, but eventually was prosecuted after decades of openly providing abortions in the 1950s.

The fact she made lots of money (and allowing her daughter to live a comfortable, if not very happy, life), living it up, didn't come off well either.  It wasn't some moral failing as much as "this isn't pleasant reading, really."  I also simply don't believe this talk of never losing a patient or even having any problems.  After saying that, eventually we hear she did have a patient have serious complications (there was a bit of an asterisk, since it wasn't her normal office), causing that first legal scare.

She performed thousands of abortions in early to mid-20th Century. I don't think it is realistic that there were never any complications. She has to be both a fantastic operator and lucky for that not to happen. This is also not the same thing as someone dying.  That would cause problems publicly and I think it is not something she would easily hide.  But, there was likely a few hard cases at the very least.  How would we know about it since we are left with her own self-reporting mostly here.  

Anyway, the book tells an important story, but I stopped reading it not that long into things. The last thing I skimmed was the account of some guy setting up a sort of abortion cartel on the West Coast, a sign of what happens when you make things illegal.  It again shows the book is an important historical resource.  

I simply did not like its style.  

===

As we approach a new term with foreboding, let us honor what should be as well as recognizing what has been.  9/17 is Constitution Day (aka Citizenship Day), the day when the original document was signed.  We the People still have a role to play here.

Saturday, September 10, 2022

New Baseball Rules

The Mets have a "soft schedule" this month against a lot of bottom feeders. The schedule is not starting that well. They lost a Nats series though they won two out of three (bare minimum) versus the Pirates. Scherzer is hurt (tired arm), so basically there are two reliable starters (deGrom and Bassitt). Peterson is sketchy and the other two, who were great in the first half, are struggling too. 

Peterson didn't last too long and the Mets recent offensive woes led to the opening of the Marlins series to be a loss. The net result of all of this is that the Mets -- first time in April -- dropped into second place (by a half game) basically since the Braves do not want to lose. This includes last night against Seattle, which is a likely wild card team. The Mets want to be in first place, to get the new bye.  It might turn on the Braves series.

One sketchy thing is that Buck (it is never noted he has that nickname because he liked to be buck naked as a player) keeps on relying on B level relievers when the Mets are only behind a bit. The relievers keep on giving up runs, thus putting the games out of reach. Past activity suggests that a one run deficit is not impossible. Three or more? Much harder.

ETA: A few bad games, injuries, and some players struggling some, but the weekend suggests it is a bit too early to panic. Bad teams, and there will be some more games there, help. Both Cookie and Walker had good games with the Mets offense feasting off bad Marlins pitching too. 

And, Seattle actually won the series versus the Braves, so the Mets gained a half game, after not being in first place for part of a whole day!  It took a come from behind win for Seattle to do it though with them giving up five runs in the 9th today. 

====

As some Mets fans sweat, new rules were agreed to in baseball. Recent years led to various changes. The most blatant might be the dubious end of the DH in the NL.  There is the "three batter rule," which made the putting a pitcher in to get one batter (including the amusing LOOGY) much harder. I'm not that upset about that sort of thing. Adds to strategy.

COVID brought the seven inning double header and the "ghost runner" in the 10th.  For whatever reason, the baseball players like this concept, and it seems like we are stuck with it.  I don't think it is overly a matter of too much concern. How often do we even have OT?  I personally think it is fine (and fun) to have a few long games.  Again, it rarely happens. The impatience to have this new rule in the 10th is a bit asinine though.

(The seven inning double header went by the wayside.  I was okay with it myself.  It twists records some and all, but it didn't bother me too much. Again, how often do we have double headers anyway?)

The big concern these days is pace of the game. The new rule changes now will try to limit pitchers and batters some more  I have seen talk this things might shave twenty minutes off the game (so a minute a half inning?) and it simply is not something I care about.  Who actually watches a whole game on television these days anyway?  Some people like the idea, including adding to the crispness of the game. I think commercials and increased use of pen are major reasons the games got longer.  

A more "okay, fine, who really cares" move is to make the bases a bit bigger. It is partially done for safety reasons.  If it makes things a bit safer, okay, who cares.  The other reason is to encourage stealing.  This will also be done by a new rule limiting throws over to first base.  I'm not horrified by the rule.  It does seem pretty stupid.  Who cares?  It very well might help a few skilled base stealers.  How much? We shall see.

A few pitchers (and batters) waste time. Some batters, for instance, have a bunch of tics they use to make the at bat longer. A few pitchers are human rain delays.  But, from what I can tell, it is not something that makes much of a difference.  Some people do care apparently.

Another change that is in my view asinine but really doesn't matter much is tweaks on how you can shift.  A few people find shifts quite bothersome. Why is unclear.  Baseball over the years have made pitching, batting, and strategy more and more specialized.  The way to go is to answer strategy with strategy.  There are ways to "beat the shift."  Why is this something to worry about?  But, besides being stupid on principle, it is unclear to me how much it actually will change the game.  

How about women umpires?  

ETA: A quick update. The "ghost runner" and  the "three batter rule" (which I again am really fine with) rules might change. 

If you want to shorten games, requiring pitchers to face more than one batter is one way to help do it.  I actually heard something once that the DH does not lengthen the game. That is somewhat counterintuitive.  I think it is a bad thing to have in the NL at any rate.  We don't need more offense.  Not that the current DH slots for the Mets are doing much. 

Friday, September 09, 2022

SCOTUS Watch

Summer winds down as we look at the start of a new term. Jeffrey Minear, a top aide to Chief Justice Roberts for 16 years, will step down at the end of the month. To quote the SCOTUSBlog entry:

Much like a chief of staff, the counselor to the chief justice is a vaguely defined position with broad responsibilities, including helping the chief oversee the Judicial Conference of the United States and serving as the chief’s representative to other branches of government, foreign courts, and visiting dignitaries. Minear also managed the court’s budget and worked to revitalize the Supreme Court Fellows program. Outside the court, he served as Roberts’ representative as chancellor of the Smithsonian Institution.

He had received some kudos, well deserved looking at his resume at that article. That was noted as a press release at the SCOTUS website. 

====

The last summer order list (9/9) was like the others not too surprising. Some pro se criminal defendant failed with a petition to Alito and tried again with Jackson (who has yet to get a circuit), who passed it to the full Court. Who, of course, rejected it.  The most notable thing is the allotment of oral argument time for two arguments, one out of California regarding a California law regulating sale of pork, and the affirmative action cases. 

For instance, the pork case:

The motion of The Humane Society of the United States, et al. for leave to file respondents' brief on the merits out of time is granted. The motion of The Humane Society of the United States, et al. for divided argument is granted.

The Humane Society is interesting since the U.S. from what I can tell agree with the challengers that the law is a violation of the Commerce Clause for interfering with national commerce. And, this provides a chance to hear more about the arguments the law is valid as a means to advance good treatment of animals.  Also, one of the affirmative action cases:

The motion of the student respondents for divided argument and for enlargement of time for oral argument is granted. The motion of the Solicitor General for leave to participate in oral argument as amicus curiae, for divided argument, and for enlargement of time for oral argument is granted, and the time is divided as follows: 45 minutes for petitioner, 20 minutes for the university respondents, 10 minutes for the student  respondents, and 15 minutes for the Solicitor General.

The other case (the one Jackson won't be involved in) also involved students trying to get involved, but this time their request was denied. Of course, we aren't told why such decisions are being made.  I am less concerned about that sort of thing as compared to the reasoning for some major order or death penalty request.

===

Gorsuch at a 10th Cir. event (he's the circuit judge) noted that the leaking of the Dobbs opinion investigation is still going on, and a report will be released on it (at least internally).  

There is already a Justice Sonia Sotomayor Community Center and Sotomayor Houses.  The latest is a statue at the Bronx Terminal Market. Sotomayor is a big one to educate the public, probably part of why she was picked (including as a Latina).  She has included in this some local attention

===

Sotomayor dropped a brief order, the first stand alone order found on the Order Page (some actions are not found there) in a month, in a pending case that has received some attention. This includes from Steve Vladeck, whose shadow docket book is now available for pre-order.

Upon consideration of the application of counsel for the applicants and the response and reply field thereto, it is ordered that the injunction of the New York trial court, case No. 154010/2021, is hereby stayed pending further order of Justice Sotomayor or of the Court.

Amy Howe on Twitter briefly translates:

Justice Sonia Sotomayor has put on hold a NY state trial court's order that would require Yeshiva University to recognize an LGBTQ student group. In a brief order, Sotomayor stays the lower court's order "pending further order of the undersigned or of the Court."

(She expanded it for her full discussion which is at her blog and at SCOTUSBlog, where the photo is also posted.)

What this actually means is another matter. The case -- as noted by the group challenging the request -- is in its early stages. There is no compelling reason AT ALL for the Supreme Court to use (to use the jargon) its "rocket docket" here.  The case itself is not a major one (the group can still meet on campus and the like as I understand it; it's a limited benefit) as such. The principle at stake might be. 

OTOH, the Court majority simply put selectively favors its own view of free exercise [a comparable argument made by the university can be made by a secular one too on academic freedom or free speech grounds, but here it has a religious character].  EVEN THERE, this is a bit much.  

This is not to say that the full Court will actually "go there."  Looking at a few "legal nerds" on Twitter, the general assumption is that at least someone (more likely more than one) is likely to support Yeshiva here.  The question then will be if the whole Court will (likely with dissent) do so.  

The order is basically a holding action.  

We can only guess at why it was dropped now. Some did. Which is okay.  But, that's all it is.  All I'll say is that the special attention given to this case (it isn't a death penalty case or something; so why is it so time sensitive?) sends a message of endorsement of religion.  But, the Supreme Court these days does not really find that problematic.  

So we wait.

Thursday, September 08, 2022

Long Live The King

Right after she welcomed a new prime minister, if at her personal quarters, Queen Elizabeth II has died. She had a long run (70 years) and it is as they say the end of an era. Do people really want Charles III? I figure it best for them just to skip to the kid. Who is already balding. OTOH, Chuck did wait a rather long time for his moment in the sun.

We, of course, do not have official royalty. The U.S. Constitution even officially denies titles of nobility, even blocking states from granting them. People are often "into" royalty as suggested by the number of Hallmark Channel movies about women (usually women) falling in love with royalty from stamp sized European (usually) nations alone. We also have unofficial royalty of various types. We are clearly a class based society in a variety of ways.

There is some value in having royalty as a ceremonial thing. They can represent a nation without as much partisan baggage, just there for that function. Choosing the first born of existing royal is a bit haphazard even there. The British royalty has baggage, but even there, it often is baggage of the country as a whole. Such as problems of colonialism and such. Queen Elizabeth played her part well. Will it feel quite the same with Chucky? We shall see.

Masks No Longer Necessary On NY Transit

I have been vaxxed and boostered (twice), but still do not really feel comfortable not wearing a mask on the bus. The rules there seem to be regularly followed. I don't use the subway much, but the few times I did, seems many more did not use masks there.

Now, they won't have to do so. I understand (including as we have yet another booster) but don't quite agree with the move. And, I agree the new sign is ridiculous. What is the point of showing people wearing masks wrong and in effect saying "oh well, you be you"?

Abortion Lawsuit Reports Controversial

This is the screen grab in a blog post entitled "Wapo joins the war on reproductive freedom."  An excerpt is provided:
Attorneys for Paige Casey said in a lawsuit filed in Prince William County Circuit Court that CVS, which owns MinuteClinic, exempted the nurse for more than 2½ years from prescribing certain contraceptive drugs or devices that cause an abortion. It specifically cited Plan B and Ella, which are commonly referred to as morning-after pills. Casey was granted the accommodation after she wrote a request to the company stating her Catholic beliefs, the lawsuit said.

Then: "To refer to morning-after pills as “abortion-inducing” is just flat misinformation. Absolutely inexcusable."  

The headline states what the nurse practitioner "says" happened.  Then, the text says what the "lawsuit" filed "cited."  Washington Post so far itself is citing something someone else said.  The article was updated but the date cited is before the date of the blog post, which expresses something that got some notice elsewhere.

[The current subtitle is notably different: "Paige Casey says the company accommodated her Catholic beliefs, which include opposition to the morning after pill, for years, then changed course."  One supposes it was updated upon pressure and requests for clarification. As the process should work. And, this happens regularly -- I have made no detailed analysis, but by mere observation, have seen multiple articles change to some degree over time, including headlines.]

The subtitle cited references her "Catholic beliefs," which is another way that the article repeatedly doesn't merely itself say things. It is doing what is repeatedly criticized in a somewhat different context -- transcribing what a specific side is saying.  

Reference is made in the article (again, dated before the blog post, but unsure what version it saw, in part since it makes no mention of it though more than one comment does) of a "clarification" that says: "This story has been clarified and updated to include additional information about the medical use of Ella and Plan B as well as Catholic doctrine on abortion."

The article (at least now) notes the position of the FDA:

Plan B and Ella are the only two drugs mentioned by name in the lawsuit. They stop pregnancy by preventing ovulation or the implanting of a fertilized egg, according to the Food and Drug Administration, which classifies both drugs as “emergency contraception” and says neither drug can terminate “an existing pregnancy.”

And, the Catholic Church:

Catholic teaching says, however, that life begins at conception when a sperm fertilizes an egg. The Vatican’s Pontifical Academy for Human Life in 2010 wrote that any drug that prevents the implantation of a fertilized egg in the uterus, “is really nothing other than a chemically induced abortion.”

The headline might mislead but LOTS of litigation regards claims ("says") which are inaccurate. The article spells out what she means and the typical understanding of what the drugs do.  What is important here -- again to make sure people understand -- is to clarify the other side.  So, for instance, someone might "say" the 2020 election was stolen.  A reference to what courts and election authorities have found would be useful.

I think by now we should be able to judge that just because someone "says" something based on religious belief, it is not actually true.  A headline can mislead the unwary, lazy, and those who don't think things through.  Take this very case.  Again, think things through.  The woman has specific Catholic beliefs that very well might clash with many people's views.  Many do not think life begins at conception, especially to the degree the "life" is so important that destruction of it means "abortion."

The matter is freighted enough that it is important to be careful.  The new subtitle clarifies just had broad her beliefs are.  The reader will start to be on guard.  "Wait. Morning after pill?"   The text then discusses her belief, the charge she made, as well as what the FDA has held. It helps the reader see why CVS might have decided that a policy that provides an exemption for beliefs about "abortion" specifically would not apply here.

It is acceptable in my view to caption a headline about a lawsuit by stating what the party is alleging.  The reader should not assume just because a person alleges something that it is true.  A person can allege they were fired for "x" and the facts might be that they were not.  The facts might show that they were fired for "y."  The headline is not saying "x" happened.

This is not exactly calling "torture" some euphemism like "enhanced interrogation" or blatantly misleading the public by simply taking the other side's labels at face value.  The very title (even the unedited one) flags that it is citing what a litigant is SAYING.  This is not joining the war on reproductive freedom.  I welcome their edits that improve things. 

The case also flags again (we've been down this path before) that words can be stretched so far that it just isn't workable.  I think it a constitutional violation as well as bad policy to not allow people to choose abortion among other options when using government sourced health insurance dollars.  Abortion is not somehow special in this regard. People have a range of beliefs on the question, usually in some fashion tied to religion.  The government should not selectively choose this to deny choice.

So be it.  Abortion, a matter of life and death, is treated special. As a matter of principle, it is not unreasonable for someone to be careful regarding such choices. The importance of the issue underlines why it is bad for the government to take it out of the hands of the person (among other things). If a person is denied a trivial choice, it can be bad, but it is more trivial. Questions of life and death, including euthanasia, abortion, and sacraments surrounding the process (baptism or the like) are special.

The line drawing here is complicated, but as I have noted in the past, lines are drawn in many ways. The issue here is that at some point the line is unreasonable.  So, not funding abortion is one thing. But, how about if the insurance company funds it, though you still have to include the insurance as part of the person's employment package?  Or, if the person uses their salary from your company to have the abortion?  Or, someone has a Uber business and refuses to drop the person near a known clinic.

Then, there is the very definition of "abortion."  I got on with someone who cited Latin word origins here and so on. It got tedious. Definitions are for one thing a result of social usage. You might think the usage is bad, but the fact it developed past Latin etymological roots is of limited notice here.  The person eventually assumed a fertilized egg was not "something" as required for their definition of "abortion," which required something that was in the act of "becoming" to be stopped.  

This is getting into the merits.  The same with the scientific reality of how Plan B operates. For the longest time, I looked into this before, there was an understanding such drugs at times at least acted on fertilized eggs. The science appears (though I really don't want to rest on the fact this is 100% clear; a small chance of error in a death penalty context is enough, right?) now to show not so.  How serious of a risk is necessary to "count" here?

The woman thinks a fertilized egg is the start of human life and destroying said egg and expelling it from the body is a form of "abortion."  Birth control pills in general might do that.  So might various other drugs as a side effect. What level of complicity is required to count there?  A range of medicines might in some way clash with beliefs. If you do not want problems, find another job.  

The average person -- to the degree they think about it -- are willing to make an exception for "abortion" as well as various things because the something significant is involved.  If the thing involved is going to apply so broadly to not be significant at all, the difference becomes meaningless. 

The religious liberty claim doesn't turn on "abortion" at the end of the day since religious liberty exemptions do not only apply there. OTOH, "abortion" sounds special.  If "exercising beliefs" becomes some open-ended thing, which harms third parties, there are problems. I personally think religious freedom warrants some balancing, even if in some cases it affects other people [letting a person pray at a designated time, e.g., might require someone else to fill that slot; maybe the person likes to eat lunch then and would having their druthers do so].  But, there are limits.

(Reference is made by one group in the article about "tolerance" when the matter here is a nurse who works at a CVS clinic, who doesn't want to do part of her job because of a broad idea of what "abortion" means. Words like "tolerance" are nice and all, but without context, they can be bottom-less empty vessels.)  

So, the story has various angles. First, there is a matter of reader comprehension, and what is a reasonable degree of careful drafting to avoid misleading the reader. Then, there is the bottom line merits of the whole thing.  This includes an absolutist view that stretches normal language past it where it reasonably should go.  This at some point leads to absurd results.

This is not because -- granting all the premises -- it's just factually impossible to say an "abortion" occurs. It is more that "abortion" has somewhat more limited meaning and before third party harm / exemptions involving public accommodations occur, something more should exist than what is at stake here.  

The alternative is extreme and likely (especially since abortion bans like this are already so) dubiously selective.  Take the latest horror show lower court opinion handed down involving drugs to prevent HIV. It unsurprisingly upset particularly gay males (three legal minds I follow on Twitter apply here) and others who are particularly affected by coverage of those drugs.  The argument is weak but some will flag that "homosexuality" per se is "controversial."  We are at the stage where even vaccines can be controversial, but even now the Supreme Court mostly doesn't want to touch that issue.  Not so much alleged "abortifacients."  

The "argument" made, however, is open-ended.  There are a range of drugs that in some fashion interferes with some religions. If vaccines developed from some cell lines originated in some cells somehow a result of an aborted fetus from c. 1980 is enough, the same might be true for one from a pig.  I surely am not going to begrudge that sentiment, given my own vegan friendly sentiments.  The connection need not be pleasant either. Racist beliefs can be involved. 

The reality of the situation will be that artificial lines will be drawn. They always are to some extent.  But, here, there will be an added level of problem. People will grant religiously based exemptions, which will harm third parties & involve public areas as compared to private beliefs and a reasonable level of private actions that are the core of religious freedom. And, it will turn on subjective line drawing of what is "controversial."  The whole thing will add insult on top of injury.

This has been a long time coming.  Years ago, before the Supreme Court protected same sex marriage, law professors argued that we should protect sexual orientation (including sex discrimination tied to it) differently from race and at least some degree sex (since the two overlap, race was a more clear case).  This is an honest accounting as compared to those you cited religious belief but deep down ("I'm not a racist!") weren't consistent. 

What about her case?  I think at the end of the day that the company has a strong case.  A clinic is going to have various basic services that a person working there will have a duty to take part in.  Various ways can be imagined to accommodate.  But, what if some opposes all birth control for those unmarried or in general?  Or, if someone wants to make specific judgment calls that such and such care is "immoral"?  

At some point, it is problematic.  And, if the line is "abortion," it is fair to apply some line on what that means, especially to the degree that concerns about complicity makes things even more open-ended.  The article suggests the CVS followed accepted norms when drawing the line, at least reasonably so.  OTOH, given the rules these days, she very well might win.  And, the analysis is likely going to be ad hoc in reality.

Monday, September 05, 2022

Eleanor & Park (and Frogs)

I did not watch it again, but last weekend's Svengoolie is a fun 1970s horror film about and titled Frogs. Ray Milland made some fun genre films, including playing the day in Love Story. He had a long career, first popping up in classic black and white films, lasting in the 1980s. A young Sam Elliott is the hero. 

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Love Story is one of the favorites of the teen girl is Eleanor & Park, a first love young adult novel that takes place (for some reason) in the mid-1980s. Maybe, the book is somehow based on the author's own reminisces,  but otherwise, there is not too much of a 1980s vibe.  The book was written in the 2010s, so I guess it helps explain to people the lack of computers, and the concept of cassette tape Walkmen. 

[The author vaguely looks like Eleanor and lives in Omaha, Nebraska, where the book takes place.]  

 I found out about this book when I read over for a second time the book by Bromleigh McCleneghan that discussed sexuality from a liberal Christian viewpoint.  Her book was written a few years after that one and she really thought it was a beautiful love story.  Looking for a Youtube video, it looks like some people found it had issues.  I did like it, including Bromleigh's view that it was an honest accounting of the feelings involved.

(The link to the author provides some criticisms to that book. I did not re-read the whole thing.  I don't know if same sex couples are as absent as suggested in the review.  I do recall the author's negative view of porn, which is overblown if applied in an absent sense. Porn is basically material meant -- no ifs or butts -- to cause a sexual reaction.  That is not inherently wrong though like many romance novels there are a lot of issues.)

The couple is not balanced. The girl is a "big" white girl with an abusive family situation, not limited to the fact her mother (of five, ranged 2-16) is with an abusive man. They are poor (just having a new toothbrush is a big deal in her eyes) and have no nearby support. The biological father is mostly absent, and comes off as an asshole, if better than the one they are stuck with now.  This is far from unbelievable as a whole. 

The boy is a mixed race (father white, mother Korean) teen who has some issues with determining his gender comfort level (he starts to wear eye makeup mid-book).  His father is a macho sort that does not really care for this sort of thing, but deep down is not abusive and does care for him. His parents' marriage is happy.  They live a happy middle class sort of life, right next door to the father's parents. 

The book largely takes place on the bus, where they fall in love sitting next to each other, originally because basically new comer Eleanor had no other place to sit.  We get a taste of school life (she eventually gets two supportive black friends after a bullying incident in gym class; but even the truly horrible person is her stepfather) and life in each of their homes. In the end, she moves far away with a relative, the home situation too dangerous.  It is unclear what happened to the rest of her family though the implication is that they moved out too, if not with her.  

The book starts with a now adult Park not totally over Eleanor, still thinking about her at times. The book ends with a brief section after she goes to live with her uncle and aunt.  The general implication is that she does not feel able to merely write to him, thinking it best to make a hard break.  He resists that for a time. The book ends with him getting a postcard from her with three words.  I think "I love you" is the idea.

As BM notes, there is a good approach of seeing things in each of the couple's vantage points.  We also through them, get some sense of the other characters, if imperfectly.  The love story of Park's parents, for instance, sounds rather interesting.  (We get Eleanor's view on how her mother and stepfather met, but not a few accounting of the other couple.)  The book, more than many, gives us a sense of each character's emotional state of mind.  And, how they read each other's feeling.  

Before or around COVID, the Wikipedia page for the book notes that a film was planned.  But, it is unclear from first glance about the state of things at this point.  The author also wrote other books.  As to why people felt the book was problematic, I did not deep dive it.  I guess you can find fault with it.  

I think it is pretty good. 

Friday, September 02, 2022

Supreme Court Watch

 

Supreme Court news often comes without fanfare. This was the case with observers noting that suddenly (for whatever reason) the big fence blocking the Court was taken down. A smaller fence remains. Meanwhile, though the justices aren't around, the building is still closed to the public. 

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There was also reporting that Ginni Thomas tried to get Wisconsin legislators (not just Arizona, where she had a former Thomas clerk go between among other things as I recall) to overturn the election. This keeps things in the news, including as the 1/6 Committee has asked her to voluntarily answer questions, but (after saying she was fine with it, nothing to hide!) refusing to do so.  It is not really too surprising.  

It fits as well with last night's speech by President Biden, which focused on democracy though also tossing in some general Democratic concerns like abortion rights and equality.  This latter part bothered a few people, including Richard Hasen, as too "divisive" and "partisan" instead of focusing on a more united "neutral" message. 

Ultimately, that's a bit naive and ridiculous. Biden is also the head of the Democrats and isn't just neutrally promoting voting here. Biden is promoting an American ethos that includes certain basic rights. I think that's appropriate. Also, if basic rights is "partisan," whose fault is that?  Finally, these things turn out to be connected in various ways, including trying to block people find voting on abortion rights for asinine reasons.  

The speech was about the "soul of the nation."  Not just a more narrow attack on authoritarian attacks on democracy.  The soul of the nation is democracy, yes, but also the democratic freedoms we honor.  And, yes, it includes the good we can do in public policy.  

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Talking abortion, I re-read Becoming Justice Blackmun, which is Linda Greenhouse's translating her early access to his personal and public papers into a book. It is not meant to be a complete biography though amounts to a pretty good introduction to the guy.  Notable that the book does not cover any religious liberty cases (putting aside abortion as one), which is not only a big thing these days, but something he played a significant role in.  

Blackmun, like Thurgood Marshall, had a liberal view regarding his papers.  Justices usually wait a long time, even until after everyone they served on is no longer there.  On that front, I wonder about Justice Stewart's papers.  The book was written five years after Blackmun's death, so is around fifteen years old now.  It would be interesting to consider if she would include more on his religious liberty cases if she wrote it today.

A review of the book makes a good point that "Biographers who follow Greenhouse may find other Blackmuns. Follow her they will."  Greenhouse's strategy of primarily using his papers unsurprisingly provides a Blackmun-friendly image though the review notes the fact that he is shown to be "kind to almost everyone" leads one to make "his lack of sympathy for Burger as their friendship fades startling." 

There are some sort of biography or autobiography (John Paul Stevens) of nearly everyone Blackmun served with. There are also multiple books about the courts he served on, including The Brethren. They provide various perspectives.  Blackmun is worthy of a good full length biography (the biographer of Souter and Harlan wrote one, but his bios are rather dull basic affairs).   

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The last Summer Order list is next week.  We are approaching the end of the summer recess. At the end of the month, there is a "long conference" where the Supreme Court gets up to date, dealing with pending matters. And, then the First Month in October starts a new term.  The "Jackson Term"?

Thus, the beginning of this month is the year anniversary of the 5-4 order leaving in place the SB8 Texas abortion law (a "die is cast" moment in hindsight) while still being part of the 2020 Term. The 2022 term starts in October 2022.