Kevin Johnson: Last November Execution (5/6)

Kevin Johnson, 19, murdered a police officer around seventeen years ago. The facts are tragic, including involving the death of Johnson's younger brother. No wonder it took two tries for a jury to agree how aggravating the crime truly was. It also seems, at least a special prosecutor appointed pursuant to a law particularly passed by Missouri to address erroneous convictions thinks so, the ultimate sentence of death was tainted by racism. 

The U.S. Supreme Court refused without comment to hold up the case last week. The Missouri Supreme Court, after a last minute hearing, refused to hold up the execution this week.  The justices, with Sotomayor and Jackson alone publicly dissenting (without explanation), again without comment refused to hold things up again.  Johnson then was executed. 

Meanwhile, Kevin Johnson's daughter -- now the age he was when he murdered the officer (his age was one more failed argument, one raised a few times regarding people under 21, especially with special circumstances) -- wanted to watch her father died. Under 21, she would not usually be allowed to do so.  Her request was gratuitously rejected.

This follows a theme -- the immediate crime of murder of a police officer likely will not lead many to shed many tears. The details, however, make things more complicated.  

BTW, the one person whose executed was botched totally this month signed an agreement where the state will not execute him by lethal injection. We shall see if he actually will be executed by nitrogen gas.

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Meanwhile, we had an official reply regarding a senator/representative requesting information regarding the allegation that Alito leaked the Hobby Lobby results or otherwise acted unethically.  

Note that other than a law (which justices never officially accepted as binding) regarding involvement in a case that could be deemed a conflict or appear that way, any ethical guidelines here would be voluntary anyways.  

A few thoughts. First, the notification that he was not somehow financially self-interested is besides the point -- that was not the concern here. As to him knowing the couple because of their involvement with the Supreme Court Historical Society, use of that institution to get access was flagged as a problem. Finally, the "explanation" for the dinner and the whole "don't leave a trail when you respond" (something about having a stomach ailment of something) is hard to take seriously.  

So, the whole thing only convinced (at best) those who want to be convinced. The felt need of an official response via the Court's lawyer suggests the whole thing stings. And, the whole thing has clear "to be continued" flavor to it. We will see if this will help to promote ethics and overall court reform.

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Meanwhile, the Supreme Court had in person oral arguments, but now the building will be open again to public tours.  The building will be open on argument days only for limited seating (no three minute quickies according to the website), not public tours generally.  Still, this is a major step.

Other things might happen (there are oral arguments, including a big border dispute today, three days this week), but wanted to address these things. See you soon. 

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ETA: This is why it's good just to wait to the end of Friday (only once did some opinion drop on Saturday in recent memory).  

There were two dissents this month (November) regarding the executions at issue. In one case, as noted, the guy's execution was never completed. It would have been appropriate for the three dissenters to explain why they opposed the vacating of the stay of the lower court as much as for the majority to explain doing so. Net, events were rather telling.

This time Justice Jackson wrote a four page dissent (the ruling dropped later in the day -- the first case having a dissent dropped later, but I still think a brief statement, even "for the reasons stated below," was possible) released today.  She starts this way:

We denied Kevin Johnson’s application for an emergency stay of his execution on November 29, 2022, and the State of Missouri has carried out that penalty. Now, one day later, I write to explain my vote to grant his stay request. For the reasons that follow, in my view, there was a likelihood that Johnson would have succeeded on the merits of his federal due process claim, and it was clear that he would (and obviously did) suffer irreparable harm absent a stay. I also believe that the equities weighed in Johnson’s favor. 

The Supreme Court rarely releases opinions after judgment though lower courts in time sensitive cases do seem occasionally to do it (I saw it happen).  But, it's a sensible thing to do in these last minute execution type cases.  Not the"obviously did" is a reference to him being executed. 

I appreciate Jackson (here, as with her first opinion, another criminal justice dissent in an Order List joined by Sotomayor) doing this. Her reasoning -- Missouri established a procedure and the appellate court here denied the hearing part (due process violation) -- also seems logical. It is not clear why Kagan did not publicly (to cite the lingo) join the opinion.

Additional Details: The new liberal leaning Supreme Court blog has some new essays adding more details, including suggesting maybe I was a bit too easy on Alito regarding financial ethical violations.  We also learn some more details on the controversial Kevin Johnson execution. 

NFL Sunday: Mike White Day

We had two teams going for the win at the end of regulation (one is the Jags vs. Ravens, other is more playoff worthy) and both did it. Jags more than once had to settle for a chip shot field goal. So, when the Ravens went ahead late, looked like another loss. But, the Ravens had issues in close games this season, if not lately. 

I talked about the Jets in my Thanksgiving post. How did that go? Well.  I mean it went good.  It helps that the Bears had three wins, give up a lot of points, and their raw but play-maker QB didn't start.  If he did start, it might have been closer.  We had a bit of a hiccup early with a flubbed field goal attempt and a 10-7 deficit. Bears didn't score again.  31-10, Jets. 

So, Mike White at QB?  That seemed to be the sentiment for some before the game.  I saw multiple comments about Zack Wilson not being ready for prime time.  The actual RECORD seems not quite the relevant for some reason:

Flacco is 1-2 (should be 0-3)

Wilson is 5-2 (both losses vs. Pats)

White is 1-0

Next up is the Vikings, who have made a habit of winning by scoring a lot of points late to come from behind.  So, if Mike White is the "score" QB, well, that might help. Who is after the Vikings? The Bills. Which the Jets beat with Wilson starting. In fact, he won each game he started, except the Patriots.  He probably would have won this one.  

Mike White had his one charmed game last season. That was an upset against a team that was slumming that day.  He didn't do much more that season.  I am where I was before the game -- Zach Wilson probably needed a game off all things considered, but the head coach blew it by not taking him out mid-game versus the Patriots.  Anyway, hard to see what this game alone tells us.  It was fun to watch though, surely.  

In former Jets QBs news, Sam Darnold won, Geno Smith did not.

2022 Elections: Almost Over, Maybe

I recently noted that the final election results have come from Alaska, leading only a few races (two House? and a Senate) still being up in the air. There is also (I have my doubts this will happen though it darn well should) the issue of challenging one or more people on 14A, sec. 3 grounds.  

The results are that Republicans will have around a four person majority. This should (though there is a lot of assumptions otherwise) be enough to be able to do basic stuff. House Democrats had a slightly higher working majority, but usually nearly everyone (maybe one or two excepted) could be assumed to go along with the basic stuff. This includes showing up.  

Again, there is a feeling that House Republicans will have a problem here somehow, including people not showing up, getting sick, or even vacancies arising.  There is already multiple people (let's see how this sticks) saying they don't want Kevin McCarthy as speaker.  I have seen reference to people (four? I don't know) rather strongly saying "NEVER!"  We shall see.

A major blame for the results, including by more than one local pol, is applied to the powers that be in New York. This includes the whole redistricting mess, which was a mess, no matter what position you fall regarding the question of partisan gerrymandering pursuant to local law. A last minute redrawing might have gave this writer one more poll worker per diem, but it led to confusion and very well hurt Democrats.

I question is you can just blame a four person majority (it might come to that) on that alone. A midterm election in New York with a bland unelected governor (picked by the three time governor forced to resign) at the head will cause problems. One problem is the general safety some swing voters will feel living in a NY.  

Other states changed by strengthening Democrat control.  Other states also do not have the social benefits, including abortion rights as New York has. I just reread the strong joint dissent in Dobbs, which (contrary to some criticism) is a strong offering, providing reasons for abortion rights, a dissenting view on how to apply constitutional liberty (not originalism), and not just reliant on stare decisis.  Here are but a few good bits:

The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law.

Even an uncomplicated pregnancy imposes significant strain on the body, unavoidably involving significant physiological change and excruciating pain.

Human bodies care little for hopes and plans.

Many will endure the costs and risks of pregnancy and giving birth against their wishes. Others will turn in desperation to illegal and unsafe abortions. They may lose not just their freedom, but their lives.

The history of state abortion restrictions is a history of heavy costs exacted from the most vulnerable women. It is a history of women seeking illegal abortions in hotel rooms and home kitchens; of women trying to self-induce abortions by douching with bleach, injecting lye, and penetrating themselves with knitting needles, scissors, and coat hangers. 

The Democrats have the presidency and the Senate looked pretty safe. So, if you were on the edge Republican leaning voter in Long Island, would you not feel somewhat safe about things on this question?  Democrats did well in California, but the situation is different there -- the Democrats at top was not as much in flux with a new governor and the Democrats as a whole had a majority for a longer time.  

I am just not sure that the losses in House seats all could have been avoided.  I am not saying the situation was properly handled.  The whole gerrymander thing is complicated, but again, either way, it was not handled very well.  It would have taken a strong partisan gerrymander (rather blatant), however, to prevent some loss here.  When you have a majority that might be counted on one hand, every race does count.  But, the assumption of some of a majority being possible?  That is assuming a lot.

The losses -- New York is still no Florida (mess for state Democrats) -- still is a warning sign.  New York is the fourth most populated state in the nation and should be a leader in progressive politics.  We have always been a bit messy (see the disrespect we get in 1776) and are more conservative in various ways than some want or say (this is seen in New York City mayoral politics alone).  A midterm is a good wake-up call.

Talking Points Memo noted that in recent years that there were ebbs and flows in congressional control.  The result is probably the best the Democrats can hope for there -- Republicans (hopefully) will have a perilous messy majority, and the results will make 2024 more promising. 

I think that is a generally valid approach though again it just is so hard with institutions that are inherently illegitimate in some sense.  I think that way with the Supreme Court (it is not just that we lost in the ballot box; the process was corrupted). And, when House Republicans aid and abet Trump and Trumpism, I think that way there too. They coming back in control two years after 2020 with if anything becoming more true believer is hard to take.

Democrats need to fight now -- when you are in the minority, it is more useful to point out what is wrong and aim high since your opponents are not likely (at least here) offer much at all -- and we will see how it goes. As to the Senate, it looks like Warnock should win.  Not that the fact it still is so close is upsetting and a tad bit soul crushing.  A 51-49 Senate will help Democrats on the appointment end and maybe more since you have a one person safety plus a 50-50 Senate required a bit more compromising. 

It is so tiring but nice to have some things on our side.

Thanksgiving Thoughts

There is a video of First Lady Jill Biden welcoming the delivery of the official White House tree. So, it is like Christmas season came (even without holiday films on multiple channels, including now Lifetime) and Thanksgiving is a bit of an also ran. 

But, the holiday remains of some importance. The American Thanksgiving experience, especially the turkey, is in various ways a creature of 19th Century culture (see here on turkey). Examinations of Christmas traditions also can point to that era though the whole Santa Claus experience was truly completed in the 20th Century.  

The basic concept of a fall harvest celebration, including remembering to give thanks probably has ancient roots.  The United States mixed in some of the Pilgrims and Native Americans stuff (that for a long time was largely only a New England memory), including having a mixed (at best) relationship with the latter.  So, though Thanksgiving very well has a general message, it is more complicated in this country. 

The House had a hearing recently on the assumed never fulfilled treaty obligation of having a Cherokee delegate to Congress.  The Republican ranking member of the relevant committee is a member of a tribe himself.  The whole thing did not have a partisan flavor.  Also, separately, an Alaska Native just officially won re-election -- currently filling in a short term -- as the representative to Alaska.

The delay in Alaska is based on the use of a form of instant run-off voting that has multiple "rounds" when there are more than two candidates.  The net result here is basically the NYT predicts a 220-213 House with two candidate races left (I guess) plus the Senate run-off (50-49 now with the only credible candidate favored to win).  So, maybe 221-214 final?

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We also had the official "pardoning" of Chocolate and Chip, the ceremony now largely a lighthearted affair that gives presidents a chance to be goofy.  The ceremony began as a more sensible official presentation of a turkey to the White House for a variety of reasons, including to promote the turkey production industry.  

George Bush Sr. apparently started the more asinine "pardon" tradition as if turkeys could be pardoned.  I am not sure what the exact point of that is supposed to be, other again as a chance some fun.  Is a sort of "dollar and a dream" lottery for turkeys -- over 200 million turkeys are raised by this country a year? As a vegetarian, it does seem perverse.  At least, Biden did by this point use his actual pardon power for human beings. 

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Another more benign (up to a point) tradition these days is football.  There was a tradition of Detroit and Dallas games. Now, there a third game on night as well (NFL Network).  The Giants played Dallas this year ("early dinner" game) and the Bills played the Lions (usual first game).  The Pats played the Vikings. Each game turned on one score though the Giants game did so in the final seconds (onside kick attempt, fail; end of game).

[So, that is 0-2 for the Giants, including another hole they couldn't get out of -- if quicker that time -- versus the Lions.]  

The Bills (that blew a Vikings game, the Vikings again having a come from behind victory vs. the Pats) beat Detroit.  The Bills was beaten by the Jets too, which puts the Dolphins in the driving seat for the time being.  The Jets then blew their rematch with the Pats (after the Jets had a bye) on a punt return in a game that seemed ready to go into OT (10-3).  

Zach Wilson, who has been pretty good this year when not playing the Patriots, then had a dubious post-game press conference where multiple people (including otherwise sympathetic media observers) thought he did not take enough responsibility.  This led to talk about him not being ready for prime time and so on. Again, he just beat the Bills, right?  

Anyway, the head coach decided to bench him for the upcoming game versus the Bears.  This game provides a somewhat soft blow since that team is not very good though their raw but promising QB has the potential to score a lot of points.  Mike White -- the veteran QB dubiously signed last season shifted a few weeks back to #3 -- will start.  You recall White had that one charmed game versus the Bengals last season.

I understand the move, especially to teach the kid -- shall we say -- a lesson.  But, the blame to me should be spread around (I'm not alone in so thinking).  Wilson -- who the hoodie clearly got psyched as he does various youngsters -- was doing NOTHING during that game.  That game. He started and won the Bills game.

He should have been benched at some point.  Now, the coverage I saw suggested the idea Wilson already was "soft" (though again, they won games) psychologically, but not taking him out seems to help send the message the lack of offensive effort was not his fault.  Again, failure has many fathers.

Plus, there was the basic point that the Jets were doing nothing offensively.  Mike White is no savior.  But, if one thing doesn't work, you try something new.  Zack Wilson for two straight games vs. the Packs was lousy, if in that game not choking up the ball repeatedly (thus the 3-3 score until very late).  

There is talk how this change will spice things up.  Yeah.  Again, they beat the Bills.  Wilson was bad versus the Pats.  I'm not sure, but it might even be that the Jets are usually slow after a bye.  So, if the Jets do win now versus the Bears, let us not do a "correlation means causation" thing that ignores who they are playing and how Wilson won before.  At least, if we do, the whole thing would be a bit stupid.

I think it still might be valid to give him the game off as a "teaching moment," especially after his post game remarks.  But, the smarter move probably would be to remove him during the Pats game and put him back in the Bears game. If he started slow, THEN maybe it would be a sign that it wasn't just the Patriots. Since, to belabor it, didn't he start the Bills game?

[There is also world soccer stuff.  I don't really care though John Oliver -- in his season finale -- flagged FIFA and Qatar has issues.]

Of course, there are lots of Christmas movies on, including now on Lifetime. I do not have as many channels as some (there are three Hallmark channels alone; I have one), but there are lots of them.  Southern Family Christmas was on last night; what caught my eye there (not being a Grey's Anatomy fan) is that the horror film king, Bruce Campbell was in it.  

These films regularly have actors who are familiar for various character roles they did (Moira Kelly is a supporting character here and I know her from a couple things).  It turns out Bruce Campbell (Evil Dead etc., as well as some t.v. work, including a character on Xena) was in a Hallmark film already.  He plays a "straight" role here as someone who abandoned the star of the film when she was a young girl. So, unlike many of these films, romance is not really the main focus of the story.

(We also learn a French/Cajun Christmas tradition.)  

The film is overall well done, but I think it basically tells its basic story by around the hour mark [minus the reveal]  so would have worked better as a ninety minute film.  I think the two sets of parents (her mom/stepdad and birth dad/step mom, played by Moira Kelly) each were well acted and well written as dramatic characters (other than her birth dad, you can imagine a thinly written affair).  Films often turn on good supporting characters.  

The lead (who played in another Hallmark film as a designer in a film that promoted different body images in fashion) also is an interesting character since she comes off as a bit different than some (often happy go lucky types) in Hallmark films.  But, again the whole "secret" part of the story is not really paced good enough for me not to think "okay, sorta bored" here.  

Overall, the movie is a mixed bag, but does stand out. 

SCOTUS Watch: Thanksgiving Week Edition

A range of Supreme Court related things happened since Friday, including news that led SCOTUSBlog to have a special Saturday article round-up (usually a weekday affair). I tacked on the Order List and grant in a Jack Daniels parody case at the end of the last entry, expecting it might be a thin week. Not quite so.

Alito:  The latest Supreme Court controversy arose when it came out that a previously anti-abortion advocate claimed Alito leaked the news that he was writing the Hobby Lobby opinion. The specific details there aside, the bigger story was the influence special interests have on multiple conservative justices. This includes the individuals using the Supreme Court Historical Society (yuck) to further their causes.  

[The person with his last name that was involved in a Supreme Court case appears to be his identical twin brother who also voted for President Biden.  That guy's Wikipedia page notes the brother is concerned with how the anti-abortion cause was used, but not sure if HE is now supportive of letting abortion stay legal.]

This might actually be a possible tipping point in the fight for an official ethics code that applies to the justices. A key senator suggested that if the justices refuse, the budget might be used to pressure them.  A related issue that arose is term limits and the problems with judges staying on too long. 

Trump:  In the last entry of "As Trump Turns," there were various developments.  An oral argument at the 11CA regarding the latest of the stupid special master dispute suggests the judges there are sick of him and find the whole thing stupid.  Sen. Graham testified to the grand jury in Georgia.  And, without comment, the latest attempt to stop release of tax records to the House was rejected (after Roberts put a hold on it around three weeks back).

[The biggest news is probably the appointment by Garland of a special counsel now that Trump announced he is officially running for president.  This might somehow be problematic but it is a very expected and standard move to make in this case.  The "coward" talk is bullshit. One fairly positive account, including based on who is chosen, is here. I guess I concur with it.]

Death Penalty: Alabama, after their third botch (one execution) in a row, has for now put a moratorium to investigate.  Meanwhile, Missouri is planning to execute Kevin Johnson next week.  He raises serious racial discrimination (Chris Geidner also reports) and other claims. The Supreme Court (again without comment from anyone) today got ahead of the curve and denied cert.  0/6 for the executions, one 6-3.  

[The standard line is to sneer at the pro-life Catholic justices. NONE of them look very good in my eyes. Even when three dissented, they did so without comment. Yes, that one was late, but come on. They knew what was coming.  They had time to write a brief statement at least.]

Cecilia Marshall Dies: Thurgood Marshall's second wife was about twenty years younger than him.  She has died and a nice press release was provided to the press that was posted on Twitter by multiple reporters. It is not on the press release page of the actual website. Why the heck not?

(I missed two media advisories from earlier this month about seating in two important cases that will get a lot of attention.  The cases will be hear in the upcoming December arguments.) 

Books:  I read Washington's Heir, cited as the first full length biography of a fairly important justice (Bushrod Washington), especially since various other lesser ones already have a biography.  The book is as usual for the author not a long one though it has more legal analysis and notes than usual.  Overall, it is a worthwhile effort.  

I finally (via a cheap Ebay purchase) got the what Obergefell v. Hodges  (same sex marriage) cases should have said book.  The book has more than nine people involved with four dissents (one one letting the matter be dealt with by the democratic branches). 

I did not find the whole effort too useful.  I have found such efforts, including in the spirit of writing things with a feminist viewpoint (there is a new one with a critical race theory viewpoint) often disappointing.  The previous Roe v. Wade book was probably somewhat better. 

One of the majority opinions focuses on the children and another wants to do away with "marriage' altogether (not sure what that gets you) and Melissa Murray again reminds that marriage isn't all there is.  Yeah.  See, Lawrence v. Texas.  I find her suggesting Justice Kennedy overdid the "yay marriage!" stuff asinine. Those fighting for same sex marriage recognition are the ones that did that.  And, logically so, given what they were trying to do.

Yet again for some reason Turner v. Safley (which has a long summary of the benefits of marriage)  is largely ignored.  The opinions basically ignore the recognition issue and the majority side also does not really engage with the dissents.  This has a sort of curious "talking past each other" flavor.  One dissent focused on originalism doesn't (except for a brief footnote) cite any other sexual orientation opinion. The one that wants to leave it to the people doesn't explain why (or if) Lawrence et. al. was different. 

Animus: A Short Introduction to Bias in the Law  from five years back (should I note he is in a same sex marriage?) was more useful.  It tied animus to the general idea against class legislation and a concern (going back to Madison) that legislation should be for the public interest, not special interests.  

The book mainly discussed the main cases (hippies, mentally retarded, the GLBT ones) and then discussed how to best determine and apply animus.  The book said nothing really profound, but it provided a good little summary (under 200 pages) and made some good points about the complexities involved.  The book was written before the Masterpiece Cakeshop case though it foreshadowed religious liberties battles.

Another such battle is one of the cases the media advisory flagged ... on my birthday yet.  Have a Happy Thanksgiving, including the "pardoned" Chocolate and Chip.  

Freethought Matters

I appreciate the weekly radio and t.v. (airing in NYC on Channel 11 and eventually posted online; the latest was an interesting John Irving interview) episodes provided by the co-presidents (a married couple; one was a previous minister, the wife involved in the formation of the group) of the Freedom From Religion Foundation. I appreciate the name of the t.v. show -- Freethought Matters -- the best.

I did various "Rev. Joe" posts over the years, a reference to being ordained online in the Universal Life Church. I have argued it is not just some sort of joke or money making device. There is a something to doing right and practicing as your conscience sees fit as long as it does not infringe on the rights of others. It is a basic matter of faith and conscience that expresses the position of many people not tied to an organized religion.

If someone wants to use "religious" imagery for this, that is okay too. The Unitarian-Universalist Church is a more widely respected form of this "universalism." Others rather not do this.  But, even many ethical societies in effect form organizations parallel to religious groups in various ways.  This is why, for example, New York includes them (or at least certain ones) among those able to marry people.  

The overall goal of the Freedom From Religion Foundation is to promote the separation of church and state. There is a wider sentiment that "religion" itself is a problem.  Again, I am not someone who goes that far as an absolute way.  The problem is how religion is used. Religion can be quite choice bound. Many faiths in fact put a lot of stock in that.

(Then, there is a concern that the beliefs are still coercive in various ways, but religion alone is not the only belief system with that problem.)

A major reason the organization began was to promote abortion rights and the author of The Cider House Rules (who apparently is somewhat open to ghosts existing, which probably was not a totally happy thing for the hosts) clearly has relevancy there.  Certain religious groups supported the push for abortion rights and still do.  The key there is being "free from" religion that takes that choice away.  It is not that all religion is necessarily bad.

I am fine with the program and organization generally since again their basic purposes is open to the idea that the Unitarians are okay. Plus, they have good guests and provide an interesting secular point of view about things.  I also am interested in liberal religious sentiments.  And, the freedom of choice and separation principles are very important.

Overall, I would say I am a freethinker.  I like the Unitarian position as whole, and the weekly meetings and such is something that is fine with me.  I am comfortable with the idea growing up Catholic though never really closely tied to the faith.  If you promote humanist principles (animal friendly), you can believe in God too, and many do.  

I have spoke here about my general belief that church and state should be separate. This does not mean religion will never somehow come into the public sphere.  I am somewhat less absolute in general these days about certain things. So, a key issue for me now regarding public displays would be equal time and giving localities some discretion (if they want to be strict, I generally think it should be allowed; the Supreme Court disagrees*).  I added a footnote to explain (again).

There also was recently a discussion of missionaries.  Missionaries to me come in various shapes and sizes.  There are liberal evangelicals (John Fea, a history professor and evangelical himself, wrote about how evangelicals sold their soul for Trump; he spoke of 18% or some such number dissenting) promoting social justice.  There are missionaries for communism and so on.  I do not think I'm abusing the term here.

One person challenged me to say that missionaries are inherently coercive. Missionaries with the backing of the state have done harm over the years.  But, missionaries overall need not be coercive.  They can promote their message and hope people accept it.  If they have no power, they cannot coerce. Some might be obtrusive, including ringing bells. 

I think I am something of an evangelist myself.  I have a desire to spread my beliefs and knowledge.  When people are wrong, it bothers me, and I want to correct them.  If I do not do so, it still bothers me. This is not true for a lot of people.  The "someone wrong on the Internet" cartoon is not a universal thing.  Anyway, I have a belief that it is important to spread knowledge. It is not just a means (it is) for me to vent or something.   

A basic concern of mine is that people should carefully think things through and have a chance to go their own way.  It bothers me when people say things online or challenge others in a way that comes off as shoddy thinking.  I also think empathy is very important and some who target religion themselves need to have some.  And, yes, free thought matters.

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*  The matter is even more clear now, but ever since the 1981 Widmar v. Vincent opinion involving use of state university facilities for religious worship in a state with a strong separatist state constitution, free speech was used to stop it. In various cases, certain liberal leaning justices opposed state endorsed displays (including implied endorsement) or a religious club at an elementary school right after normal classes as crossing the line.  

I think (somewhat ironically given his opposition to various establishment claims) Justice White's solo dissent in that case is rather respectable. He notes the difference of religious worship in the First Amendment context and notes religious speech is treated differently in various ways.  He also would give the state there the option to have a stronger rule.  

The group's case in a university where lots of groups were given access -- and unlike a later case not involving student funds -- is weaker than others.  Still, I think it is a reasonable position, especially if you are going to have a weak establishment position.  

I think it also reasonable to argue that the Supreme Court went off on the wrong foot regarding requiring religious exemptions for unemployment compensation when a person is unable to work because of religious reasons. The case there is tricky, especially if the regulation already allows for certain exemptions tied to inability to work.  Free exercise reasonably is included there.  

And, the exemption system is individualized and except in a really vague way not burdensome to others. So, there is a way to avoid using it as some open-ended exemption rule that we are stuck with now where even vaccinations are tricky.  Still, as a nationwide constitutional rule set by the courts, it very well is debatable.

Jolly Good Christmas

When this film was first on, I caught some of it, and thought at least a bit of it (involving a somewhat slapstick chase) silly. Also, the female lead seemed a bit stiff at times, with some of the dialogue seeming a bit forced. I stopped watching it.

But, when I saw part of it on replay last night, it had its charms. The female lead is a South Asian actress in a few things, including at least one with which I am somewhat familiar. There is a good supporting cast, including a pitch-perfect turn by the male lead's boss.

The British setting has charms. Also, like various Hallmark t.v. films, there is a gay presence a friend this time gay (with a husband). A competing channel had some bad press for it's "traditional marriage" approach. And, the overall plot had some nice touches, including an understanding "we aren't really meant for each other" break-up.

SCOTUS Watch: Execution Week

There will be a conference tomorrow and Order List related to it on Monday. I will (unless something really special happens) treat that separately next Monday. It is likely to be of limited note -- though late surprises are clearly possible -- and then SCOTUS will basically be done until after Thanksgiving.

This week's Order List was mostly no drama, but included a dissent from denial of cert. written by Thomas (with Alito and Gorsuch) that fits the overall theme of this entry. A lower federal court intervened in a capital case that Thomas believed was not in doubt enough to do so under the route sought. The others ""permits the nullification of its jurisprudence" (ha ha) by not error correcting. 

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A mild break from executions then took place and the Court (without comment) rejected an attempt to block the 1/6 Committee to get phone records from Arizona's GOP chair.  Thomas and Alito dissented without opinion.  Thomas could have dissented silently, especially since his own wife was involved in trying to get Arizona officials to overturn the results.  He doesn't give a shit about ethics or appearance thereof, apparently.

(Thomas was the among those the Federalist Society gave a "warm reception" to recently though the rest of the Dobbs majority were.)

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Okay, so there were four executions -- in four states -- scheduled two days this week.  It looked like the Supreme Court would simply, without comment, reject final appeals in each case.  There was a change in plans there, to some degree, regarding a second issue in the fourth case.

One

Murray Hooper (black) was convicted for his involvement in two murders back in 1982. Justice Breyer (as Stevens did earlier) discusses the problems with execution of someone decades after conviction here. John Bessler, husband of Senator Amy Klobuchar, published the dissent (with commentary) as a book. The matter warrants reminder.

Hooper's case involves a long tale, including structural racism among other things.  The two convicted for involvement with him died in prison.  He claimed innocence (fine), and his final appeal involved alleged evidence there.  Sister Helen Prejean tweeted that there was some problems executing him ("Arizona executed Murray Hooper this morning. Prison staff struggled to set the lethal injection IV lines. They eventually had to cut into Murray’s thigh and insert a catheter into his femoral artery.")

I have not gone into his case -- I doubt he is really innocent though; my concern is that before signing off on an execution, it would be nice if SCOTUS (or even one justice, maybe one of the liberals) briefly say why or why not this is the correct thing to do as a matter of law. Sometimes, there is not a good appellate case.  But, you still can explain.

Two

So, that's Arizona. Texas had Stephen Barbee, and his final appeal had to do with the correct procedures for his religious needs at execution.  But, Texas is normally smooth running in this department, there was ultimately problems executing him as well.  The people who are executed are not exactly in the best of shape in various cases, and that bit them this time. 

His crime -- murder of a girlfriend and her child -- involved something from 2005. As these things go, that is almost quick, but one article noted:

Early last year, the Texas court finally handed down a highly technical ruling concluding Barbee wasn’t eligible for a new trial because he didn’t tell his attorneys clearly enough that he wanted to maintain his innocence. 

Another case where even an execution that is not particularly outrageous (if you are against all executions, they all are; me? I'm against them,  but realize some are worse than others), but there is still a screw-up.  Such fine tuning when a person's life is involved is for me somewhat dubious.  

Three

Next comes Oklahoma, who is trying to play catch-up (over twenty in two years) after multiple botched executions.  

The recent ones reportedly went okay.  Try, try again, maybe?  I won't guaranteed that, but that's what the article says.  Anyway, Richard Fairchild (executed after almost 30 years) alleged competency problems.  Weak case?  Enough that at least one single fucking justice, including the liberals, might have said something.  

(The crime is a heinous case of some drunken guy, so it seems from the summary, getting upset at his girlfriend's toddler and horribly murdering him.  Okay.  So, thirty years in prison isn't enough, including vis-a-vis a range of other murders out there? We have numerous child abusers whose actions lead to death.  How many are executed?)  

Four

Kenneth  Smith, 57, was sentenced to death for the 1988 contract killing of Elizabeth Dorlene Sennett in Colbert County, Alabama. The jury gave him life. The trial judge overruled them.  The Supreme Court rejected without comment a final lawsuit involving that yesterday. 

There is also the problem of Alabama not clarifying their specific execution protocol, including if problems arise. Note that problems arose twice this week alone.  And, Alabama botched their last execution, forcing them to postpone it.  The 11CA (a conservative leaning circuit) granted a stay.  This one lingered on (like last time in Alabama) into the night, the Supreme Court vacating the stay 6-3 (normal split) without comment.  

It is ridiculous that this lingered on that long. There should be a rule to cut off appeals within 24 hours or something of the execution. This "Bavarian Fire Drill" sort of thing, finally finishing (without explanation, in part given time restraints) ninety minutes (local time) before the warrant ran out. 

As people assumed Twitter was about to die (can I play me in the movie? Titanic II: The Twitter Meltdown?), I kept track of the execution via an account of a local reporter.  This is the charm (and addictive nature) of Twitter in a nutshell.  And, it turns out they didn't go thru with it again.

(The official statement seems to be that they AGAIN tried to execute someone and had problems with the procedure.  I know it was rushed and all, but should they really need more than 90m to do everything they need to do regarding final touches here?  Maybe, they should just stop trying to execute people.  I would say use another method, but figure with their abilities, they might screw that up too.)  

ETA: People have been like "Twitter is about done" for some time now since Elon "Chief Twit" Musk has gained control. It's still there. People talk about Mastodon, which I tried to join, but it's convoluted.  I doubt Twitter is DOA.

 ===

Again, the Supreme Court will have a conference (Friday), and orders will be released on Monday.  The next scheduled action are oral arguments at the end of the month.  

ETA: Monday orders was a nothingburger.  This basically includes a separate order (which often would have dropped on Friday) granting one case. The case does have amusing facts.

Election Time Continues

The new normal is that we do not know who won for days.

The Wednesday after Election Day, there were calls that the Republicans got at least the 218 (probably will get like 222) needed to win the election. As various other things went right, including election deniers losing secretary of state races and the Democrats governing twenty-four states. There is even a chance for 50/50. This is a significant shift.

The problem is the House of Representatives. Some are focusing their ire on New York, which maybe lost four more seats than expected for various reasons. But, nail-biters will involve some slip-ups.  Midterms still have a certain "we need to balance things out" quality, even though "both sides" aren't the same.  The good thing is that voters did on some level see this, if not quite enough.  Voters aren't quite there yet, apparently.  

(One losing candidate from Long Island or something was upset about cash bail in New York, which is a false issue, but something some candidate in such a district might be wary about. I don't think we lost the seats in New York because of that issue. "Crime" did come out, but it is not like that wouldn't be cited without the bail law. In part because it actually didn't have the effect alleged.) 

And, if we want to talk about New York (and the litigation -- which was screwed up, especially the last minute, Bavarian fire drill type remedy though I did get another day election poll worker pay out of it), let's not ignore the U.S. Supreme Court's role.  It is not "election denial" to note this. 

Bottom line, an appalling Trump enabling, insurrection curious, troll party will control the House. Oh, Republicans are why Trump announced for POTUS again, being too chickenshit to convict him. I'm angry at all of this. Pissed off. To be cont.  For instance, though this still isn't getting enough attention in my book, there is the 14A, sec. 3 claims that might be raised.  

I expanded this entry from last night, but I will again end on the sentiment that the times make Republicans in control worse in my book.  It is not like them being in control in 2010 or whenever was great.  But, things got worse, including their involvement regarding Trump.  I find it appalling they are in power two years later.  Yes, very close, and we will see how it works.  But, it's still control.  Though I won't say it's final until I actually see a majority sworn in, fighting off any challenges.

I thought it was wrong to just basically concede justices being confirmed or impeachment attempts since "of course, you don't have the votes."  I'm of a sentiment that you have to go down fighting.  And, at this point, like with the Supreme Court, they have a basic illegitimate taint in my book.  They didn't in 2017 or something.  Things are different now.  

I'm tired though. It's so tiresome, even if there are things to cite, including some great state results, to keep the faith.

SCOTUS Watch: Short Week Edition

Conference/Grant

Election Day is later this year (it doesn't have much to do with those clocks going back, though it might feel that way), so suddenly it's Veteran's Day. 

This means SCOTUS had its conference on Thursday, and released an order to tell us they took one more case for argument. It involves the reach of an identity theft statute, so fits the "CRIME!" theme of many of the election races this cycle.  And, the case has been relisted multiple times, which means the justices (well at least one) were interested. 

Tracy Beatty Execution 

First, it without comment (becoming a damn trend -- why did Sotomayor stop her occasional "I'm concerned but" statements in these cases?) let a Texas execution go thru.  Tracy Beatty's mental illness claims might have been weak (without doing the research, I'll grant it), but SCOTUS should at least make a brief effort in addressing them before signing off on the state executing someone.  It's still a major thing, right?  

The link flags another problem with this execution after about twenty years. The aggravating factor involved in making it death eligible is laughably weak: it was based on the allegation he was illegally in his mother's home (when he murdered her -- such an emotionally laden case is really not a "worse of the worst" matter) on facts that split the lower court when it was examined.  

Another case where some will say "good riddance to bad rubbish," but is simply not the sort of case where a principled application of the death penalty would warrant it.  Nothing new there.  

Other Stuff

The justices had various oral arguments, starting with the Indian Child Welfare Act and some more inside baseball cases.  It would have been nice if a Native American was one of the advocates in the first case.  

The "yeah this is what they should be dealing with" brigade should appreciate the January Argument calendar, which brings us to the "yeah it's almost 2023" sentiment.   The December Arguments will begin at the end of November, and we will have more than one biggie coming up.  

There will be an order list (likely minor) on Monday and conference at the end of the week.  There are FOUR (one on hold) executions scheduled next week.  Let's see if radio silence continues. 

Election Day 2022

I read the young adult book On The Subject of Unmentionable Things (a local library has displays of books and this was one of them).  Finished a book!

The book is primarily about a sixteen year old girl who secretly runs a sex information website that gets tied up with a local Sarah Palin/Trump type mayoral candidate.  Neither is referenced but both (she was a former beauty queen and not very smart if very savvy; her messages are Trump-like) are clearly models.  

Even less political savvy teens should know this, though Palin (even if she just helped an Alaskan Native win a Democratic House seat, the ranked choice system helping) might be history to some younger readers (even someone six at the time should have remembered her).  The campaign is a major subplot though the focus is on the teen and her experiences. 

I did not know the campaign (she won though people thought she would not, but was tainted and unable to cause too much damage) was going to be as important.  And, you know, maybe it was not a great book in some ways to read before a very stressful midterm election. I thought the book overall was well written.  The author has two other books (one made into a movie) with some sort of teen mental health issue themes.

====

I worked as a poll worker again.  We have more polling places in the Bronx now so there is now only two polling tables at our neighborhood polling place.  One problem (my voting place did not change though I was redistricted in other ways) is that many people did not know their polling place changed.  You can fill out an absentee ballot (it's a tedious thing) but really there was a serious fail here on making sure voters knew where to vote.  It's basic thing and too many people (fifty might not be a bad guess just for yesterday in the one polling place) did not know.  

We had a lot of voters -- it isn't a busy area and there were 10 days of early voting -- around 500.  Not too many people under 25.  Other than the polling location issue, things seemed to generally go smoothly.  Amusing butthead story -- a few people (including me) get there 5AM or so, as required, and think the doors are locked. Turns out the middle door actually was opened. A pollworker comes at 5:15 or so and opens up without an issue.  

I'm glad to take part in this whole process and glad people came to vote (including one blind person who took advantage of a ballot marking device that is nearly never used).  I worked with an election day vet (she's great at greeting voters with compliments) and though the heavy influx was a bit stressful at times, it was smooth as a whole.  Somehow one ballot was miscounted final-tally wise of the 300 used.  

===

There has been some "red wave" predictions in the news. For instance, a few stories made out that the governor's race was real close. I did not believe it.  I was right.  Even with the Republican gubernatorial candidate likely getting coattails from  other races and midterm disfavor, he didn't do much better than the nonentity running against Schumer. He lost by around five points.  This is only "close" relatively (at best) and an unelected somewhat bland opponent in this environment is atypical as well.  

I purposely avoided Twitter and Election Night coverage. I checked something else and did see that Rubio won.  This was not too surprising (Beto in Texas and Abrams in Georgia also did not win; again, not really surprising, though oh in a nice, saner world, they would).  There was various nice things that happened.  The New York ballot measures all easily passed.  Some more important ones also passed nationally.

I checked the results early this morning (woke up before six after going to sleep around eleven; I stayed up to go in at 5AM).  One spin is that there was no "red wave."  But, I didn't expect a red wave.  I don't find that too reassuring.  It is important to underline, sure, especially given some of the media coverage.  

But, the idea it was some sort of SURPRISE to me is a bit misleading.  As to it being historically surprising, well, maybe we can admit the times are different there. Not "same old, same old" midterm time.  I figured a close Democratic Senate win (that seems to be the general prediction; looks like it will happen, but at best 51-49 with -- what a fucking disgusting thing given the totally incompetent, not a pair of right wing hacks with some credibility - another Georgia run-off pending) and hope of a House win (many races not called but the prediction is a Republican win akin or narrower than the current Democratic majority). 

I find the latter bit horrible and so very aggravating given the nature of that party now, but you know, again, I didn't expect the Dems to get net gains much at all.  I expected a nailbiter. So, it went the other way, let's say.  AGAIN, that's not akin to the horrid trifecta of 2016 or something. I find it a bit (again, it if helps, do it) spin to make out as if this is surprising.  Did people REALLY think the Republicans would swing a 250 or something majority?  By what dynamics there? Again, a Democratic hold was a tad optimistic, but far from fantasy-land stuff.  

I guess it's the new normal for control not to be clear on Election Day (things not being final, yes, this much up in the air? my experience over the years was that this is more novel stuff, a mix of COVID/nailbiter central). When it's real close, there are various reasons. 

Gerrymandering and the Supreme Court in the shadow docket rejecting racial discrimination in redistricting claims. Also, the whole mess with partisan gerrymandering and how New York courts handled it.  The governor's race was not where Democrats had to worry -- for instance, my state senator easily was beat by Sean Patrick Maloney, but looks like he was beat (this seems somewhat surprising though guess the race was due to be close).  So, the margin can be explained/blamed at least in significant part on illegitimate type things though the N.Y. thing was (though some focus on it) in no way just the "fault" of the court of appeals. 

I felt and continue to feel this election mattered more given the state of democracy and the perfidy of Republicans.  I was depressed when I saw the results.  Yes, some good things happened.  But, I just hate we live in a country that could vote for some of the simply horrible people that won.  And, a Republican House (even if it was by one damn vote) will be so fucking tiresome and can cause real harm.  

A 51 vote Senate also won't mean filibuster reform or exceptions unless somehow one of the two decides to change their mind (doubtful though I guess on abortion, we can dream ... but then, some good results in certain states might make the necessary votes handwave the need).  And, we don't even have the one shot reconciliation possibility with a Republican House, which is there to blackmail the Democrats to pass basic legislation.  

The results are to be determined but it does look like years more of struggling against people so bad that they would make movie viewers groan regarding the stereotypical nature of the heavies.  I expect more of my country in 2022. But, others see a bit more positives, and there were some.  Give me a Democratic House. I'll feel better. Ha ha. 

Supreme Court Watch: Order List

The Supreme Court dropped an order on Friday citing a few cases granted for full review. This led me to think that the Order List itself would be nothing too notable. And, the general orders are not.  Justice Thomas recused from a case involving President Biden, but it was some handwritten appeal, and it doesn't suggest a new recusal policy on his end.

The order list is over fifty pages. It is one of those that has various separate writings from individual justices (and Gorsuch) regarding cases they believe should be heard or warrant some more notice.  The five cases can basically be summarized in this matter:

• Gorsuch -- Veteran Benefits (Chevron)   [16 Pages]
• Sotomayor/Jackson -- Prosecutor misconduct   [15 Pages]
• Thomas -- Camp Lejeune [!]  Critical of application of immunity that denies certain military personnel relief [5 Pages]
• Gorsuch (Kavanaugh w/o opinion would grant cert) need for 12 member jury in states  [10 Pages]
• Jackson/Sotomayor -- Brady violation (exculpatory evidence/capital case)  [2 pages]

"Chevron deference" is the principle of letting administrative agencies have the discretion to do their thing, even if some judge or judges would second guess their application of the law.  If the application is blatantly wrong or suspect in some special way (discrimination, let's say), exceptions are made. 

Conservatives like Gorsuch find this too friendly to the administrative state.  Gorsuch at times finds some sympathetic case where deference seems to deny a good guy type plaintiff relief.  But, this is likely a rather arbitrary matter, and can given the leanings of various courts, net hurt such people just as easily.   Plus, overall, agencies help the pro-government regulation side, including to deal with pending problems. Again, net, even if some singular cases feel bad, Chevron deference is a good idea.

Camp Lejeune is the place you keep on seeing commercials and getting spam emails about regarding polluted water and such. The dissent there seems like one of Thomas' many idiosyncratic campaigns and maybe here his approach might be useful.  

Sotomayor regularly finds some criminal justice case that seems appalling. The problem is twofold -- (1) it sort of reeks of "error correction" (2) we have a conservative Supreme Court.  The Supreme Court is not really supposed to be there to skim over the thousands of cases and find cases where the lower court made a bad call though they do from time to time. The cases do flag possible miscarriages of justice that might be dealt in other ways as well as general ongoing problems for which this is but a blatant case.  Conservatives do this for their own causes too.

Justice Jackson's first opinion is a brief version of this general practice and Sotomayor signed on to hers as Jackson signed on to Sotomayor's longer opinion.  

The last dissent is an example of Gorsuch (see also his dissent in the case that continued to allow the dual sovereignty double jeopardy rule that popped up in an old episode of Quincy) a few times going the libertarian route.  It also is an example of my more conservative side coming out. Kagan, who dissented in the unanimous jury case, not supporting overturning another long in place precedent is not surprising. 

I think a 12 person jury as a rule is fine, but it is very unclear to me that it is compelled across the board to meet "jury" requirements as a constitutional matter.  I think the unanimous jury case probably should have been decided narrowly since the last two states (one already changed it rule but did not apply it to old cases) are tainted by racism.  It barely was mentioned, but Puerto Rico allowed non-unanimous juries at the time.  

These dissenting opinions provide some interesting reading since they cover a range of topics and give us another view on such questions.  Next up: an execution.

Sports Update

I thought the World Series would go to Game 7 with Zack Wheeler having a good Game Six. But, the Phils pushed him to the sixth inning and he and his relief gave up four runs right away. So, a respectable run for a #3 Wild Card, but the Astros won.

Noah, former Met, didn't start Game Three (rainout), but did okay. He was pushed into the fourth, which was too far, but lack of offense was the reason the Phils lost 3-2. They had a shot to tie it with a guy on third and less than two outs in the eighth. A quick out might be said to be the turning point of the World Series in Game Five.

Giants have a bye. After the Jets looked owned versus the Pats yet again, they needed to beat the Bills to stop being 0-2. Down 14-3, I figured they were doomed. But, they got a TD (going on 4th and short to extend) late in the first half and avoided a quick FG. Their defense stood up -- the offense still had a few issues -- including at the end where a long drive only got a FG. Won 20-17. Green Bay lost to the Lions. Very sad.

Searching for Black Confederates: The Civil War’s Most Persistent Myth

I had trouble finding a book I could get into. I went to the Pelham Bay library, partially since I went there with my sister when my younger brother was born 39 years ago Tuesday.  It's a spacious library with two areas in the adult section with cushioned chairs to read. It also is a library that still has a DVD section.  I found one book that looked promising.  

It is somewhat amusing among other things that with so many books and DVDs to pick from that I found only one item. Searching for Black Confederates: The Civil War’s Most Persistent Myth by Kevin Levin is a small book (main book is under 200 pages) on one of the side issues of the Civil War.  It is largely about camp slaves of the Confederate army, who relatively late (1970s) started to be believed to be soldiers. 

The first chapters discuss their role in the army and relationship with white soldiers during and after the war.  A few (under 3000) camp slaves and others (including I guess a few free blacks) such as laborers actually years later -- seems mostly like in the 1920s when they would be rather old -- were give state pensions (smaller than the whites) in a few states.  Loyal old blacks unlike those uppity youngsters back from the war.*

Then, when civil rights made supporting the South start to seem bad, the idea they were soldiers (even Henry Gates, the black scholar got into the act) grew up.  The book sort of ends on a positive note, suggesting the "persistent myth" is a lot less accepted these days, including the wider myth of a positive view of the South. The latter seems a bit optimistic.  

Overall, it is an interesting account.  I probably will write a more extensive review in upcoming weeks that might be posted on the Books In A Flash website. I thought the book was a bit repetitive in the first two chapters particularly about their time during the war. Also, the book had an incomplete feel. We have little on the blacks own point of view. The only major insights come from a subset that after the war who for whatever reason put forth a positive view of their experiences, especially at reunions.

There should be some material regarding the many blacks who were slaves or otherwise were forced into helping the war effort for the South with more negative views. We have a mention of Louisiana creoles who offered to serve for the South who later joined the Union army.  But, aren't there other sources on the views of these people?  We even have the oral history project (referenced) of former slaves in the 1930s. 

There is also absolutely no mention of women slaves or free blacks being involved.  The book focuses mostly on camp slaves, basically the personal servants of soldiers including those left to look over supply wagons. In fact, though the book does not mention it (in fact suggesting even the few official black Confederate soldiers were not involved in the final Lee retreat) I found a reference to a possible brief skirmish. 

The book To the Bitter End by Robert M. Dunkerly (written by a historian who served at historical sites) also cites this incident.  A little footnote, but I wish the author here had an occasion to make reference to it. 

Anyway, the book was early on a bit tedious, but the later chapters were more smooth reading. And, I finally did find a book to read. Onward.

==

This entry was written artificially early clock-wise because Daylight Savings Time ends today, so the clocks were put back an hour. Fewer and fewer people have clocks these days, I guess, though I have two old clock radios and a watch to change.  There is various research done and it is unclear really what all of this gives us.  

And, even the change suggested in Congress might be the WRONG change!  Oh well. People are used to it all, I guess.   Mexico (mostly) opted out of the whole thing recently, so change is possible.  I am not sure how much it would affect me personally though it already does seem to get dark early these days.  Now, it will be dark sooner for some time.  

Let's just end the whole thing -- it's tedious and in the 21st Century probably makes less difference. As you can see, it isn't exactly up there on things I worry about. That's more a few days from now.  

(That show had a bit of potential early but it eventually got tiresome. Recognize her from the teen show?)

===

* I still wonder if Confederate pensions are even constitutional given the terms of the fourth section of the Fourteenth Amendment.  It is an "obligation incurred in aid of insurrection."  The provision applies to both the United States and individual states.  And, the idea of paying people for their services in furtherance of a rebellion was directly cited as a concern (see here as an example). Confederate pensions directly do this.

Perhaps, that only covered existing claims, not ones arising out of later state policies.  But, the validity.  of public debt provision is assumed to apply to current debts. This discussion cites an even more limited benefit being questionable.  Maybe, there was no good legal way to challenge the whole thing or no one cared. Was it ever seriously questioned?  The provision never seems to come up in pension discussions. 

SCOTUS Watch

Affirmative Action

The big thing this week was the two college affirmative actions cases scheduled for oral argument on Halloween, the beginning of the November Sitting (oral arguments).  

The new oral argument style with a two minutes uninterrupted introduction, general questioning, and then a chance for specific justices (in order of seniority) to ask questions already encourages longer oral arguments. These two went on for nearly five hours.  Justice Thomas, for both rounds, has continued his openness for asking questions after years of not doing so.  The telephonic arguments apparently permanently opened up the gates there.

The arguments excite some liberals given that the women liberal justices seem to be if anything more firm this term, Justice Jackson a strong questioner right out of the gate.  Some people are like "what does it matter, they are in dissent," but there is some value apparently (so say in part the sort of liberal law professor types some of these people would normally respect) in spreading the message.  

I don't know how much it will matter in immediate decision making (I think along the edges at least it will), but these things are long term affairs anyway.  Plus, the "end of affirmative action" assumptions are misleading. Race is still going to somehow be used.  If the deciding opinion gives somewhat more wiggle room there, it matters too. 

Order List

Before the arguments on Monday was the usually scheduled 9:30 Order List (after the conference on Friday). These order lists are a collection of various "orders" ("Miscellaneous orders" are usually unscheduled one-offs) of the Supreme Court.  They tend to be banal such as "The application for bail addressed to Justice Thomas and referred to the Court is denied." 

The order lists often have little tidbits (such as asking the solicitor general for their opinion, which makes it more likely the case will later be granted for argument) that court watchers find at least somewhat notable. Others, like some nuance suit that only two members of the Court can take part in, are more quirky. Others make some go "hmm" like why are such and such justices recusing themselves?  A FAQ page would be helpful.

Trumpy Orders

Chief Justice Roberts temporarily held up an order to give some Trump tax returns to the House committee granted permission to see them. Some pointed out that this was merely an administrative stay.  The bottom line (see here) is that this matter has been pending since 2019.  20 fucking 19. 

And, the returns are still not there yet. This is fucking absurd.  It is but one instance of that asshole being able to obstruct justice for years.  This is related to the emoluments issue, which is actually covered by more than one clause of the Constitution. So he not only should not get emoluments from foreign sources while in office, but the only means of compensation is his salary. This is relevant in a recent news story (not really new) involving Secret Service protection and costs applied to his hotels or such.

Sen. Graham's battle to not do what basic civic duty requires regarding testimony to the special grand jury in Georgia over election wrongdoing involving the 2020 election has not lingered as long as the tax issue yet.  But, it has been going on for an extended period of time, involving three levels of litigation.  

The Supreme Court, after a temporary administrative stay by Thomas, rejected him again.  They vacated Thomas' stay this week without noted dissent in an unsigned order.  It did not firmly do so, but they listed the basic limitations the lower court put on the questioning, and then noted Graham still had a right to challenge specific questions in district court.  

Graham has to show up but just what he will answer will be unclear.  I think the constitutional line here is likely somewhat hazy though probably the rule is a bit too generous.  But, I'll say this again, it shouldn't really matter.  He should voluntarily answer.  The whole thing is more game of delay and obstruct. 

The Supreme Court basically did the right thing here. I am wary of them citing the details -- that implies (without full review of a difficult question) that they agree with the limitations -- but it does on the other hand provide a small safe harbor for subpoenas. 

Protest

The big gate that was put in front of the Supreme Court building was removed some time during the late summer. There was  smaller gate still up as I recall. The major reason for the change originally was protests over abortion. And, protesters interrupted an actual argument on Wednesday.

On the live audio -- I wasn't listening since it was a boring case -- you could briefly here it.  Then, it was cut off, as if the person in control of the audio cut off the audio.  Amy Howe later noted that in the final audio that the protesters was totally edited out.   

A conservative over at Reason (Volokh Conspiracy) suggested this would further turn the justices against televising arguments or even maybe live audio. I think overall the chance of some protester coming in (and back in the day, I know of at least one anti-abortion protester interrupting an argument, and it wasn't totally edited out) is not a good reason against that. I don't think the justices as a whole are just on the cusp anyway.

Courts throughout this country and abroad, including supreme courts, have video and the possibility of protests are still present. I doubt one never happened. One or more justices might use it as an excuse, but as with all possible abuses of the privilege, free speech and open government still should win overall in the end.  

==

The big thing next week is the Election Day, which surely will have some implications regarding the Supreme Court, the courts in general, and the things they do and did.  Including abortion. Note the Trump taxes order includes this: "further ordered that a response to the application be filed on or before Thursday, November 10, 2022, by noon."  After the election.

There will be orders and various oral arguments, including involving a law that involves Native American children.  

As is often the case, an order was dropped on Friday separately to announce cases were granted certiorari  (cert), which literally means "to make certain."  It basically means the Supreme Court takes a case for full review to take briefs, hear oral arguments, and decide the question with a full opinion.  The cases do not seem too ideological, dealing with patent rights, trademarks, and Navajo water matters.  More "law-ly" cases.