Books and Stuff

Mystery novels are as numerous as romance options, so finding a good one for me is somewhat an effort of serendipity. I saw a review of the 1950s New York City-based Viviana Valentine Gets Her Man online. It is overall a fun, quick reading first effort with a new one coming soon. Possible tv/film adaption material.

I purchased the first season of West Wing (not in the library for some reason) after a marathon was on over the Christmas holidays. I have yet to watch it, but it was cheap, and no rush. Friends continues to be comfort food. For January, Nick-at-Nite had a creative "A-Z" episode marathon. I have also seen ads for a Valentine's Day theme marathon too.

January is complete. That didn't take too long. 2024 should be here before you know it. This "conflict resolutions" list should be helpful. Either way, can't say resolutions-wise, the month went too well. Can I consider Lunar New Year a new start? Year of the Cat and Rabbit!

NFL Championship Watch: Blah

The NFL playoffs in my view have decreased in interest week by week. The Wildcard Weekend games were a lot more interesting than expected. It has gone downhill in various ways from there. Some good moments, but blah.

The match-ups this week were SF/Philly and Bengals/KC. After Philly manhandled the Giants, the hope was that we would have a better game. The SF QB (who started as their third string) got hurt early in the game. The end result was about as bad as the Giants game. They lost 31-7. KC actually beat the Bengals this time via another quick end of the game score/field goal.

Tiresome. The top seeds are in the Super Bowl and their QBs are studs. This includes one who has been playing on a bad ankle for much of the last two games. So, fine. But, I'm not really interested. I'm less interested in ANOTHER over the hill Packers QB coming to the Jets. The team needs a long term fix. Not same old same old "signs" of doing better. Just say "no."

SCOTUS Watch

Justice Kagan was not around when SCOTUS had its first opinion announcements from the bench for a while. She was at the christening of the USS Earl Warren, honoring the great chief justice in part for his voting rights rulings.  Something a majority of this Supreme Court is not as much a big fan of.  Her act is somewhat of an ideological statement on her part.

SCOTUS had a bookkeeping-type order later in the week. It is the sort of thing that will drop as they are on their break.  A mild footnote of sorts is that the "acting solicitor general" is referenced.  Why?  Well, for whatever reason, the solicitor general is recused from the cases at issue.  

We also had reports of a new Kavanaugh documentary, which drops some more details, if nothing really changes the conversation. This makes Dahlia Lithwick, who stepped aside from SCOTUS reporting for a while because of her own feelings, fears it will just lead to unsatisfying trauma. But, I think there is a need to keep the matter raw. Is it really good to move on to resigned acceptance?

As the justices take a break, a few executions are scheduled, including at the beginning of February.  The Richard Glossip execution has been pushed back again. They really should just bite the bullet and admit he shouldn't be executed.  A Pennsylvania execution, which is a rare one, scheduled in March was commuted.  There is one in Florida and Missouri still scheduled.  

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One issue covered in the recent Freedom From Religion Foundation radio program is the issue of invocations before government meetings. These things in theory might be acceptable but tend to favor certain religions over others. Emily Olson found this out when she challenged her local government's practices.  Her story is worth checking out.  

The Supreme Court allows such invocations and some years back (toward the end of Kennedy's tenure) in a case out of Greece, New York loosened the rules somewhat (an older case cited a "sectarian" bar) in the process. The case also had a certain Pollyanna-ish few of the facts (Kagan had a strong dissent), which reflects recent Establishment Clause precedents. 

Mid-Manhattan Library & Some Books

Last Sunday, I went to what I will continue to call the "Mid-Manhattan Library" [Stavros Niarchos Foundation Library] at 40th and 5th in Manhattan. This is across the street from the well know research library. The best way to get there is to walk down 41st Street, or "Library Way," with plaques on the sidewalk.

The old Mid-Manhattan Library was a nice place to go. If anything, the new one is better, including that you don't have to worry about having the guard check your bags/books at the door.  NYPL is a bit less concerned, including the new system where fines aren't charged. If you don't bring a book (or other work) back within a certain period of time (extended with renewals), the item will be deemed lost.  

One charm to the library is that certain areas have a "stacks" like feel like in a college library or something.  At least, I like the feeling of being lost in a library like that.  I did not go, but there is also not only a rooftop terrace (one local branch at last, the Van Cortlandt Park Library, has an open-air back area) but a place to eat.  I didn't see a return drop box though. Did I miss it?

I took out some books.  Dear John: Love and Loyalty in Wartime America concerns the famous "Dear John" letters though more broadly relationships between people in the military and (mostly) non-military.  We largely see things through the eyes of those in the military though I would think there was more material available from the women's (the same-sex angle here is lightly touched upon) point of view.  

There is a lot of interesting material here though did not fully enjoy the style it was presented.  This includes dropping bits and pieces of one couple, who it turns out (maybe we get a hint earlier) to "end cute" in a way that seems sort of a gimmick to me.  And, we only learn about that in the end. 

American by Birth, about the Wong Kim Ark (birthright citizenship) case, is another case of an interesting subject, somewhat rough (more so here probably) presentation.  This includes such basic things as a clear presentation of his sons and (some might miss this) the evidence that he himself said a grandson was a son in legal paperwork.  I also was annoyed when "Justice Grier" (!) was dropped as a dissenter in Dred Scott. 

There was an interesting point (books that cover familiar, at least to me, ground, often have these pearls) that one of his daughters -- born on free soil -- had the strongest claim for liberty.  There was other interesting stuff like that.  This includes something I heard about in an interesting C-SPAN aired lecture -- the level of questioning of Chinese immigrants to make sure they were legally here.  This involves long lists of questions on such minutiae as what street you lived in and how long in China.  

Another thing is the ability of the Chinese to obtain good representation, partially because the shipping firms that brought them over has a monetary interest to do so.  But, they also benefited from Chinese organizations that kept the interests of the Chinese in mind.  The book provides some helpful "more cases" and historical timelines. It sort of leaves us hanging about the "Six Companies" in the 20th Century after around 1905 or so.  Such groups in some form seem to be still around.  

I had a debate in 2016 with someone, for instance, on what a "natural born" citizen is -- which is mostly only important regarding who can be president.  For instance, is Ted Cruz one?  One thing suggested was that birthright citizenship was more fixed. But, the book dropped a bit that Congress only in 1940 (to quote the book) "affirms birthright citizenship for those born in Puerto Rico." 

When researching the matter, I found a reference to "naturalization"  which in turn is defined as the "conferring of nationality of a state upon a person after birth." This book does not specifically goes into detail on such questions, but it seems to me a logical rule is that "natural born" means citizenship at birth.  

Naturalization is the act of changing your citizenship.  An embryo is not a non-citizen; an embryo has no legal personhood under the Constitution at all.  So, a "natural born citizen" or a "birthright" citizen is someone who at birth is a citizen. Before the 14th Amendment, determining the contours here was a matter of historical practice (aka "common law") and in some cases statutory law (such as defining blackness to the degree being black was seen as a barrier).  There was some flexibility. 

Now, the 14th Amendment sets a floor. But, Congress has the discretion to recognize that a child of two citizens who is born in Canada because the mother was stuck there when early labor came is not blocked from becoming president.  That's silly.  

Again, the matter really has not been pressed though we had the Obama fantasy and concern about McCain because he was born in the Panama Zone.  But, citizenship should not be limited by stupid "originalist" rules. It is bad enough a child naturalized at two cannot be president without going into that stuff. 

The last non-fiction book is one I just started reading but is quite good in its way as well. It is A Short History of War by Jeremy Black (not quite "a very short introduction" though).  The book has forty short chapters (about six pages each) that are chocked full of information.  

I actually found it hard to read it as a normal book since it is almost like a bunch of condensed encyclopedia entries that overwhelm you with detail.  This includes the first chapter which provides the various aspects of human and human civilization that attract us to war.  I might not read the whole thing but am glad I checked it out merely for that first chapter!

I also have a fiction book but will deal with that separately.

ETA: Didn't like it.  Abort.

SCOTUS Order/Opinion Day

The Supreme Court had its first opinion announcements from the bench [we should get the audio eventually via Oyez.com after the term is over] since pre-COVID at the beginning of 2020.  

In a good system, we would not have to wait  Ditto to watch ceremonial events like a bunch of JAG personnel being on hand to be involved in bar admissions.  Instead, we have a SCOTUSBlog live blog, which provided some details for this post. 

It is also the first time Barrett had an opinion announcement.  The first case of the term is usually boring (this time: "exception to a deadline for veterans' benefits is subject to equitable tolling"), but usually comes out before now.  Why this one, first heard on 10/4, took this long is unclear.  The whole thing is eleven pages though for some reason needs three pages of headnotes.  

The other "opinion" was an unexplained statement that a case involving attorney-client privilege was improvidentially granted. In the past, I have found at least brief descriptions saying why the case turned out to be a mistake to take.  During the Roberts Court, however, no comment. 

The Order List is also not too notable. An important Internet-related case stood out because the Supreme Court asked the opinion of the Solicitor General.  The general assumption here is that this is a delay mechanism.  

Gorsuch dissented from a cert denial, involving civil penalties imposed under the Bank Secrecy Act for wilful non-disclosure of taxes.  Gorsuch made sure to lead that it involved some old lady who was a refugee from Germany and suggested it was all some innocent mistake on her part.  The feds suggest otherwise.  I don't think this is a violation of the Excessive Fines Clause.  If wanted to take such as case, there are more blatant examples.  I personally did not find the merits of the last case that bad.*

Amy Howe (SCOTUSBlog) notes that she was told that Kagan, Kavanaugh, Gorsuch, and Alito weren't on the bench.  I do not find this too problematic unless technically they did something (swearing in people?) requiring a quorum (six).  I think it would have been good practice for the first time back with an opinion announcement to have more there.  

They had one actual opinion to release.  It is unclear why they couldn't do it last week.  The people absent are somewhat suggestive though it does include Kagan.  Were they worried about some protest arising from last week's report or the Roe v. Wade anniversary?  Have something else to do?  To be clear, justices often skip these things since they are basically ceremonial.  Amy Howe suggested this many not being there was somewhat notable.  Again, basically, a shrug on some level though some people were insulted by the whole thing.  

SCOTUS now goes on a mid-winter hiatus until mid-February.  There is nothing scheduled officially until then.  There will likely be miscellaneous orders and the like, including those involving pending February executions.  

(After finishing this entry, I noticed there are multiple new media advisories -- one of many underused pages on its website -- about assigned seating for upcoming oral arguments that are particularly likely to receive attention.) 

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* The case's primary importance was to clearly incorporate the fines provision -- which most people figured was already in effect -- to the states.  I questioned at the time if seizing an expensive vehicle, which as I recall was even somehow used for the drug transactions targeted, was an excessive fine. 

A 1990s case involving an innocent wife who lost a small amount of money when a car she co-owned was seized -- her husband used it to have sex with a prostitute -- is much more unfair in my book. 

NFL Division Round

Last week, we had a bunch of competitive games, except for when Seattle had a turnover in the second half, which began a stream of points for the other side.

The match-ups were more promising this week, more or less, but the results were not quite the same. Jags blew a chance (including letting a backup go the length of the field and fumbling deep late) against a hobbled KC QB. Giants were quickly overmatched by the Eagles. Bills were too, if a bit less badly, by the Bengals.

The Dallas/SF game was a low scoring (19-12) messy affair with SF winning. SF is my choice for the Super Bowl. I am not really a KC fan, but the Bengals went to the Super Bowl last time. I rather not the Eagles go, but SF better score more next week.

Roe v. Wade Doesn't Turn 50

The Court got Roe right 50 years ago. It was a balanced decision with broad national consensus that the majority of Americans have continued to support for the last 50 years. And it was a constitutional principle upheld by justices appointed by Democratic and Republican Presidents alike.

Roe v. Wade was handed down, 7-2, fifty years ago.  Since high school (the Webster decision was heard in my senior year), I have been very interested in the decision and the diverse issues it involves. This is somewhat academic in my case, but a "right to privacy" involving reproductive liberty matters even to a guy without children.  I have sisters, nieces, and so on.  I care about the issues involved.  They matter to me as well.  

[There are many posts on this website and two of the others -- no symbol yet -- about abortion and related issues as well as in my book on the U.S. Constitution. The issues involved include constitutional interpretation, religion, health care, equality, medicine, speech, family issues, and more.]

The decision was not quite "balanced" though it was in time.  Only four states at that time (and New York barely retained it, the liberal Republican governor vetoing an attempt to overturn it) had broad abortion rights. And, even there, multiple states had residency requirements of the type overturned in the companion case, Doe v. Bolton.  

I think the decision -- e.g., some First Amendment issue was not decided broadly in one swoop with detailed rules set in place -- did too much at once.  There was a general acceptance of abortion rights though actually reforming laws was hard in practice, especially with male-dominated legislatures.  Some arguments aside, this would become even harder, especially in some areas, as conservatives gained more power.  

Its core is correct. A constitutional "person" is an entity that does not include embryos and fetuses, clearly not fertilized eggs. There is a right to privacy, with special implications here for women, and it includes control over abortion choices. Medical regulations are acceptable if they do not violate this choice.  TRAP laws that selectively target abortion rights instead of treating it generally as a health matter are illegitimate.  

And, viability is a reasonable dividing line, including giving women time for a choice and reflecting that "life" close enough to personhood is present here.  The line was suggested in U.S. v. Vuitch (oral argument) though since the starting place had no right to an abortion at all, various lower courts had a more limited "at least early in the pregnancy" rule to start.  

The specific requirements that the opinion set in place in the "trimester scheme" is the sort of messy thing that might have gone down differently. But, the bottom line is valid.  At the time, there was basically an arbitrary system where someone could get an abortion in some cases, but not consistently and using guidelines not applied fairly.  

Justice Blackmun originally wished to rely on vagueness in Roe -- a "life" exception did not give doctors enough clarity on when abortions were allowed.  Justice White ridiculed this, but the lower court opinion partially rested on that ground.  And, it was valid, even less so than "health," it was not clear to doctors just how much risk of life as compared to "merely" health they were supposed to allow.  

The earlier federal case (cited) out of D.C. upheld an abortion regulation, but only did so by broadly defining "health." It is unclear how much room there really was between the open-ended definition by the controlling opinion (the justices split in various ways) and Stewart's argument that the law basically allowed abortions by licensed physicians using medical judgment.  Ideally, that would be the rule.  

A "reasonable" approach with "health" exceptions in practice then and now is unreasonable.  Griswold v. Connecticut set up a logical route to use "privacy" as the constitutional route, especially for seven male justices.  Equality, however, was and is a basic factor here.  This includes both sex and wealth with race factoring in as well.  Sexual equality was recognized in time (see Planned Parenthood v. Casey) while wealth was only recognized by a minority in the Medicaid cases.  

There was some recognition as early as the contraceptive cases that this was partially a matter of religious and moral choice. Casey expressly labeled it as a matter of conscience.  Some religious groups and clergy fought for abortion rights in the 1960s.  And, we now have quite credible (no matter how successful) challenges based on religious liberty.  

I see a book edited by Jack Balkin from some time back imagining other opinions for Roe v. Wade (including dissents) has been re-released.  I was not that impressed by the effort (though it was better than the same-sex marriage volume; Brown v. Bd. was the best effort).  One law professor involved, who was a clerk at the time, just included a slightly modified version of Justice Douglas' concurrence.  Not a bad idea.  

I think as a whole Planned v. Parenthood was a reasonable opinion, especially to the degree it went into more detail about how the right to choose is firmly the result of precedent.  The "undue burden" standard as a national rule is also acceptable, if in practice probably somewhat too weak. It is not clear to me how much difference it would have been to use the old standard with new judges. For instance, in practice, waiting periods result in undue burdens, even if they were upheld more.  

Obviously, I do not think it appropriate to overturn Roe v. Wade completely.  The approach used is even more unjust. First, the Texas bounty law is left in place, allowing state nullification.  Then, a sham grant that allegedly was only about a 15-week ban, not overturning abortion rights totally.  The failed marshmallow test five did not even have a second argument (shades of the original) to directly discuss overturning (cf. Citizens United).  

But, this is not surprising. HOW this majority came about (and WHY -- abortion was their white whale), including Barrett being confirmed as we voted for Biden (fucking shit), showed they wanted this, and actually doing it right was not a concern.  

Dred Scott is rightly seen as a horrible case but even that one was heard twice, the issues were clearly up for grabs (and Congress passed a provision to encourage the Supreme Court to decide it), and the result was somewhat symbolic (unclear how much the law changed on the ground).  And, the justices were not confirmed in ways many (rightly) found of very dubious legitimacy.  

A response to the ruling is fit here: "we need hardly say is entitled to just so much moral weight as would be the judgment of a majority of those congregated in any Washington bar-room."  The Supreme Court will hand down one or more opinions on Monday.  My sentiment is around the same. The fact we are stuck with these assholes, including the shoddy handling of the leak investigation, just rubs it in our faces, doesn't change that.  

There are so many people involved in this fight* and the recent movie with Elizabeth Banks (Call Jane) is but one-way lesser-known parties are being honored.  I will end with a reference to Linda Coffee, Sarah Weddington's lesser-known co-counsel, who also is getting some attention.  A major book about "Roe" herself was also about Coffee.  Her life, including as a lesbian, had a lot of drama, including falling into some hard times.  

She is still around, surviving for another day. 

ETA: I'm going to tack this on here since it annoys me on a "someone wrong on the Internet" level.  If someone a bit more than a Joe Smoe.

This thing is something of a hobbyhorse for the guy, and he has written a lot about it (the SB8 thing).  The two aren't the same.  

SB8 involved a nullification of Roe v. Wade via a novel law that (whatever you think about its validity) had a creative ("some genius" ala Justice Kagan) method to block people from stopping it. Not merely a normal litigation strategy, which might in some way be open to challenge. 

It is not merely that people "disagree with his legal position and do not mind people suing him into oblivion."  That's asinine. He, a damn law professor knowledgable about these topics, knows better. Or should.  

Less people "complain" because the litigation follows normal rules and involves still open issues.  People who are not dead set on abortion rights found SB8 troublesome as a matter of legal principle.  

Again, some schmuck -- including law professors -- wrong on the Internet or beyond is only so important. But, blatant wrongness with attitude to boot continues to be one of my major triggers.  I would say "pet peeves," but I think that term might belittle the importance of the principle at stake.  

If in some broad sense, the "offense" here is bad judicial policy, fine, but that STILL does not make SB8, etc. all of a piece.  Again, some law professor who would go after someone who blithely speaks about things without proper nuance in some other context should know this.  

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* The author of the unsigned three-judge opinion in Roe v. Wade was Judge Sarah Hughes, who swore in LBJ after the JFK assassination. Linda Coffee was a former clerk so did not go into the oral argument (unlike in front of the Supreme Court, she took part in that one) totally blind.  

The detail here can also be seen by her friend, a closeted gay attorney, who passed along "Roe" (he in part handled adoption cases).  He was later murdered.  A recent conservative "Roe v. Wade" movie also involves an anti-abortion black woman physician, who has a troubled life story herself.  She's also covered in the Jane Roe book.

Center of the Storm

The film Inherit the Wind was on a few weeks ago. It is a dramatized version of the Scopes Trial from the 1920s, a battle over an evolution law. Edward Larson wrote multiple books about the battle over evolution, including the award-winning Summer of the Gods. The title is from a quote by Clarence Darrow.

The playwrights were upfront that the play/film was not supposed to be a real-life account. It was an allegory with specific implications during the McCarthy Era. A good account of the real events was written a few years after the film was released. John Scopes himself wrote an autobiography, which is good since he died not too long after that.

One of the chapter titles in fact is "summer of the gods."  Scopes (edited by a journalist friend) comes off almost from central casting.  A freethinking down to earth guy, who was a bit bemused to basically being almost an also ran during the trial.  This was basically appropriate since it was a test case.  

He was barely in violation (the regular science teacher, a family man, refused to play the role) and the penalty ultimately was $100 (overturned on a technicality).  He wasn't put in prison or anything like in the film.  After the trial, he studied geology, spent some time in Venezuela (where he met his wife), and had a long career in the oil business.  

[$100 was the minimum; $500 was the maximum. The jury was to set the fine, but they (according to the supreme court wrongly) let the judge do it.  The defense did not challenge this, nor apparently was this uncommon practice, so it really should not have been an issue.  

It was a clear way to find a way to punt the whole thing.  Scopes' costs were all paid for by the defense -- a scholarship fund was even collected -- but in the 1920s, $100 was not a trivial fine.]

Scopes is a bit racy in a few vignettes.  He seems to say "whores" a lot when talking about the hypocrisy of trying to stop prostitution while not in a Christian way caring about the prostitutes.  And, he speaks about some "bitch" at a rape trial Darrow and company stopped to watch, who they thought was trying to railroad some poor mental defective ("moron" or "idiot" was used -- the mid-1960s not quite "PC" yet).  

The book is overall a good read.  A more complete analysis of the events, not the insights of one person involved, would add some details. The main thing that stands out here is that Scopes treats William Jennings Bryan as basically a one-note closed-minded fundamentalist in his opposition.  

Larson's account would add that opposition to the teaching of evolution was mixed in with his pacificism and social welfare sentiments.  Christianity here was not just put out as necessary for morals but the evolution of the "survival of the fittest" variety was feared to be the road to nihilism that brought the likes of World War I.  The evolution of non-human animals was less of a concern.

This is still misguided (as was the argument that the law was constitutional as a matter of education policy discretion or because evolution was unproven on the facts). It does make Bryan less of a stereotype though even in this accounting he comes off somewhat sympathetically.  

Near the end of the book, the lower court opinion of Epperson v. Arkansas is cited.  The lower court opinion (overturned by the state supreme court) found the Arkansas law banning the teaching of evolution unconstitutional.  Scopes, shortly after the book was published, was around when the Supreme Court applied that to the nation as a whole. His wife died in 1990.

ETA: Bryan recorded a version of his famous "Cross of Gold" speech.

Highest Court Watch

N.Y. Court of Appeals Fight: Gov. Hochul chose unwisely with her second, and so far most important, the court of appeals pick.  

Overall, Judge Hector LaSalle is probably a decent lower-court judge and not a bad guy.  If the Republicans controlled the Senate, he might even have been a decent option. He is just not a good pick for a Democratic trifecta state to lead a potentially 3-2 (lean liberal) court in a country where that is ever more important.  

Hochul, for whatever reason, continues to act like this is her biggest fight and she can't let go.  The Senate Judiciary Committee, with the Republicans treating him as their guy (one of the remaining two supporters is a conservative-leaning Democrat), rejected him 2-7-10. Some accounts provided a more nice sounding "10-9," but the seven are "without recommendation."  She still acts like she wants to fight on. 

Take the "L." Multiple progressive groups point out problematic rulings.  Cries of "unfair" with last-ditch hopeless approaches (she wants a floor vote, which she probably at this point will lose -- Senate Democrats would look weak to give in to her at this point).  We are at about the "if only Pence votes his conscience" stage. Not a good look, Kathy. 

Her argument that a vote by the Senate requires a floor vote when it is generally understood a vote by the Senate assumes a committee system (which the Senate by rule agreed to so the complete Senate in effect voted already) is weak.  A court battle is not only a long shot but is messy hardball that directly challenges the separation of powers.  Again, to what end?  

The bottom line is that she chose unwisely, and the Senate Democrats did their job. Let's move on and let it be a learning experience for all.

N.Y. Gun Laws Stay In Place: Hochul has promoted a vision that overall is progressive though some tough-on-crime rhetoric is mixed in there.  Gun regulations fit in here.  

So, she should be happy with a minor victory in which the Supreme Court did not interfere with a lower court lawsuit involving the regulation of gun shops.  Alito did even say "okay, but you know, the Second Circuit is being a bit mean" this time.  This is not really too notable on some level, but then again, we are dealing with the Barrett Court.  

The true believer nation of the approach of the challengers here is suggested by the conclusion of a recent brief (see that link): 

"Petitioners can do not much more under deadlines and word counts to place this Record into the hands of Your Honor and respectfully request the granting of emergency relief."

Progressives upset at Hochul (framed as a "Republican" by some in unsurprising overkill) might not recognize this framing:

"The swirl of the two issues – abortion and firearms – became the self-described “anger” of Hochul as she stood at a literal church pulpit, asking for forgiveness for “the anger in my heart.”

As with the bump stock regulation struck down in the 5th Cir., we shall see how this ends up.  One more thing.  The briefs have many hyperlinks that allow for easy access to their websites.  On the other hand, orders in the order list do not have links, including to the docket page, for easy access.  

About that Leak Investigation ... The Wall St. Journal ("uh huh" some said) recently noted that there was movement on the leak investigation of the Dobbs draft opinion.  Turns out there was.  Another leak? 

Anyway, checking the Supreme Court press release page, there was a "Press Release Regarding Investigation Report," which was basically a "see attached" with no further comment. Attached is a report of the investigation.  

Bottom line?  The report, even using a relatively weak "preponderance of the evidence standard" could not say who leaked it.  You can take that as you will, including saying (with assurance) Alito (or Thomas) leaked it. And/or that "they don't want to know."  And so on.  

There are some interesting details, including carefully framed language that led court reporters not to be able to say if the justices themselves were interviewed. IF one leaked it, my theory would be that they got help, and the report seems to suggest the likely suspects signed sworn statements that they were innocent.  Also, other details -- sham or not -- will provide some information that is of some value to court watchers.  

The response led to a new statement (so important it was posted on the website!) on Friday afternoon that is short enough to quote in full:

Statement from Marshal Gail A. Curley:

During the course of the investigation, I spoke with each of the Justices, several on multiple occasions. The Justices actively cooperated in this iterative process, asking questions and answering mine. I followed up on all credible leads, none of which implicated the Justices or their spouses. On this basis, I did not believe that it was necessary to ask the Justices to sign sworn affidavits.

This is something.  First, it is a rather important bit of information that leads one to wonder why it wasn't included.  This includes the fact that (to some limited extent) it is exculpatory.  I realize as a whole that it looks suspicious too but you know a little bit of both, maybe? 

Second, it is not clear why it was still unnecessary as compared to others, who from what we know were not "implicated" either.  The fact people signed a sworn statement that they did not do it in other cases helped show their innocence.  It will look (probably appropriately) suspicious the justices did not do so as well.   

The statement also implies ("spoke with") is a more informal process than the "interviews" (you need to read things closely sometimes) with other people. This whole thing is so absurd.  We had law professors and court reporters assuming the justices were not even "spoken with," sometimes in rather assured tones.  So, again, why not include that bit of information in the report?  But. apparently, Jim Jordan wants the full story, so stay tuned!

(This whole thing including firm assurance by people it is a certain person -- and not the same one -- again brings to mind my basic rule that being cocksure about things is often not a good idea.  Toss in a qualifier.)

Anyway, the preface to the court marshal's report includes some shock at the whole thing. It is very well a bad thing to leak court work product like this -- like a jury deliberation and the like, there very well is value to keeping the process secret.  And, I don't know what value the leak really provided even granting that sometimes exceptions can be made.  

I have seen some people (suddenly I might add) feel we should see draft opinions.  To what end?  This was not the final draft.  Opinions often undergo multiple drafts.  A single draft can be misleading.  What is the value to remove the freedom of negotiation allowed by privacy here, especially since it is basically never going to matter anyway?  A leak can in fact interfere with some ongoing litigation in a bad way as well.  

But, the biggest "betrayal" is the release of the opinion itself. And, the report -- especially with the mystery continuing -- still leaves a cloud over the Supreme Court.  Coverage like this surely is not a net positive.  The whole thing is absurd but something of a sideshow, especially unless this means more leaks of ongoing deliberations.  

The bottom line, as we prepare to celebrate and mourn the 50th anniversary of Roe v. Wade, the current Supreme Court is very tainted. Use your appropriate adjective (illegitimate or not), but that is the bottom line.  I cannot simply watch and listen to them do things without having a general feeling that they do not deserve my respect.  

The investigation (including using someone multiple people have noted isn't used to this sort of thing, not a more independent, more aptly skilled outsider) just adds to the fire. I saw one suggestion earlier that it would be a good idea for SCOTUS to have some sort of formal semi-independent investigatory body to self-regulate.  In his end-of-the-year report in 2021, Chief Justice Roberts assured us self-control was possible.  Sure.  An ethics law that applies to the Supreme Court is still a far ways from happening.  This whole clusterf-  just adds fodder for those who say it is necessary. 

I had a rule not to call the Trump trio "justices" like I never called him the "president," and I'm not inclined to give ceremonial titles to each group.  But, I have started to basically not find it useful to go out of my way to not use "justices" without some caveat. Maybe, I'm partially in the "acceptance" phase to that limited degree, but I do not accept SCOTUS is just legitimate, full stop.

===

I also saw the author of the infamous lower court opinion that declared state-led pledges to God in public schools were unconstitutional has died at 99.  (To be clear exactly what was at stake.)  I think that is right. The Supreme Court later (somewhat validly) punted on prudence grounds.  

Judge Goodwin turned out to have a long career (over a half-century though on senior status for the 21st Century really; still, the NYT obituary notes he never formally resigned).  He was the sort of Souter-esque sort, it seems, that New England-type Republicans used to support.  RIP.  

===

Monday: On Friday, the Supreme Court website noted there "will" be an Order List on Monday but there "might" (the assumption is that there will, but that is the usual frame since maybe there will be a reason to push it back) be an opinion or opinions released.  The opinions will be announced from the bench (we are back to that) and then posted.  

Is that it for the day?  Well, I'm posting this now. 

Does Scripture Speak for Itself?

I first heard about this book, which has a 2023 publication date, when the other author (the less cute one) was on the Freedom From Religion Foundation radio show. It's an interesting analysis (the authors also wrote another book on it) of the Museum of the Bible, brought to you by the Hobby Lobby family. A bit academic, but was an interesting read.

Night Court Again

Night Court was a goofy show from the 1980s. It got into a groove a few years in when the main cast was all there (Christine the public defender a key piece).

Three main characters (Harry, Christine, Charlie the clerk) have since died, but "Dan Fielding" is still around. He agreed to take part in a reboot, now playing the public defender in Harry's previously unknown daughter's court. She is played by the snarky wife/pharmacy rep from Big Bang Theory, whose idea to bring the show back led to this.

I saw the first two episodes. Dan and Judge Abby Stone seem to have the most potential while the others (minus the for now annoying bailiff) might be good too. Since the first show took some time to really get into a groove, it is too early to tell. But, nostalgia alert!

SCOTUS and Other Legal Stuff

Order List: After granting multiple cases for full review on Friday (and for whatever reason, still not releasing an opinion), the order list was only four pages long.  Nothing of note.  

Book Review: The Accidental History of the U.S. Immigration Courts is interesting.  The author is an immigration lawyer so knows the system. She is also an academic. 

She argues that "courts" that determine who should be granted the privilege to stay are wrongly found in the Justice Department.  She spells out the "accidental history" involving FDR and World War II how they were moved there from the Department of Labor.  And, she points out some attorney general overreaching during the Trump Administration.  

The book is not a complete account (the main text is around 170 pages), which is fine, but it in my opinion needed more on how the system worked from when it was first placed in the Department of Justice until the 1990s.  I can understand the principle of having what is in practice a judicial-type body in a more independent system.  But, I needed more evidence that the problem in practice was more than some Trump problems.  

What Are You Doing?!  We are approaching the hearing for the nominated chief judge, swing vote, of the New York Court of Appeals (top court).  

As noted before, Gov. Hochul really misstepped by picking a controversial pick with various conservative bona fides.  One letter from former state judges even spoke of "woke" opposition.  

The opposition so far in the Senate is promising, but we are a far way from it being enough. There is pressure, for instance, to have a floor vote.  This would allow Republicans to vote for him.  Among the noise now?  The minority leader of the House of Representatives.  Seriously dude? WTF?

Trivia: Steve Vladeck, Prof. Shadow Docket, has a Supreme Court blog or substack or whatever, that you can subscribe to (with some free content).  His recent entry talked about the death penalty, including how few cases before 1967 dealt with the death penalty in the 20th Century.  The entry noted two merit cases.

(There were a couple cases of note late 19th, including those involving the firing squad and electrocution).

One involving a teenage black boy whose electrocution failed the first time is well known.  I thought the second reference was to Trop v. Dulles, which was not a death penalty as such, but is an important case because it flagged (without dissent, including Brennan) that the death penalty is clearly constitutional.  

No. It's a case less known involving competency.  I am vaguely familiar with it since it is cited in the more well-known Ford v. Wainright case in the 1980s.  

===

There are a few oral arguments this week and other news might arise later on.  But, since we had a few things to talk about, decided to have this entry.

Wild Card Weekend

The games were somewhat "wild" (only Tampa was completely overmatched) but there really weren't any upsets. The Giants won but the Vikings were due to lose after a season of nailbiters. After beating the Jets 11-6, the Dolphins managed to lose 34-31, doing enough wrong not to go with the gigantic upset (with a #3 QB) against a really sloppy Bills team. The Ravens (with another big drop-off with their star QB hurt) held their own until a 98 yard turnover. Jags came back from 27-0 down. And, Seattle had a good first half.

The Princess and the Bodyguard

I have had trouble finding an enjoyable Hallmark type film lately (there are so many around). I found this one, aired on UP TV, well done. The lead was very down to earth (fitting the character), it was generally well paced, and the other parts (including her bestie and parents) were good as well. And, not too many princess films overall.

The film involves a royal daughter who goes to America to live an ordinary life, but finds out that at age 35 (itself notably old) she has to decide whether or not to take on her duties. The film handles her struggles deciding nicely. Not profound, but better than average. The love interest's brother also is disabled, which is tossed in ordinary enough. Good touch.

Religious Liberty Developments

Among the new Supreme Court grants is a case that might strengthen the rules of the religious accommodation now in place for employees. 

I would not be surprised if the resulting case is unanimous with perhaps one or more justices concurring. The case involves package delivery on Sunday, which seems like an easy case. A constitutional claim involving unemployment benefits for a Seventh-Day Adventist was decided back in the early 1960s.  But, one can imagine tricky situations as seen by various vaccine mandate rules that have been challenged.  

[ETA: High School SCOTUS has a good case preview.] 

A notice that "Biden-Harris Administration Proposes Restoring Protections for Beneficiaries of Federally Funded Social Services" received positive reactions from more than one separation of church and state groups.  The statement includes this general comment:

Today, nine federal agencies are further advancing President Biden’s call for religious freedom and equity for all by proposing a new rule to restore religious liberty protections for beneficiaries of federally funded social services, such as job training and job search assistance, academic enrichment opportunities, and housing services. These protections were rescinded by the previous Administration.

The situation seems to be that the Trump Administration allowed certain groups to block services for those that did not go along with the religious tenets of the organizations in question.  This would arise, for instance, if an LGBTQ person was denied service in certain cases.  

(The bit about encouraging the notification of alternatives brought to mind Gov. Hochul's veto of a bill requiring notification of secular alternatives being available to certain treatment programs.)

Religious liberty groups that are concerned about those with secular beliefs might appreciate as well the president's "Proclamation on Religious Freedom Day, 2023."  The statement included this:

Across the world, minority communities — including Uyghurs, Rohingya, Ahmadiyya Muslims, Jews, Christians, Bahá’ís, Yezidis, atheists, and humanists — continue to face intimidation, violence, and unequal protection under the law.

I have been working on a blog for another website regarding China's mistreatment of Christians. China is officially an atheistic country, but their concerns about proper ideology are likely to clash with some atheists.  More broadly, other nations with official religions have discriminated against  "atheists and humanists" and so forth.  It is good that these statements (including day of prayer announcements) are inclusive.

I read a "very short introduction" book on atheism and it too was not completely inclusive.  I do not recall a single word about Africa. Also, atheists tend to think of a certain breed of monotheism when they speak of "religion," including in criticizing concepts of God.  

It is far from clear that "religion" itself cannot include atheism.  The book briefly recognized the issue here in a final chapter about "new atheists," who are regularly much more militant. The book notes that religion includes "practice, ritual, community, ways of orientation ourselves to the mysteries of the universe," and not just matters of "belief." Belief is an open-ended thing as well.  

If required to fit myself into a generally recognized religion, I would at this time associate myself with the Unitarian-Universalists, who include various people who do not believe in God.  The book also notes that Buddhism, unlike Taoism (Daoism) and Confucianism is firmly labeled as a "religion"  (Taoism is tricky but Confucianism is more of a philosophy), often broadly includes non-theistic aspects (some forms do have mystical aspects).  

Anyway, consistent religious liberty is an important thing, and should not just be left to conservative evangelicals.  I respect the importance of Christians and others having some discretion though reasonable lines should apply.  And, religious liberty includes protections for all, including those whose religion firmly holds that they have the right to choose an abortion. 

Biden Classified Documents Story

The fact that a few classified documents were found by Biden's people is not really surprising. The details are still not clear, including what they entail, but the differences with Trump have been noted. This includes not only the scope in question but how much the Trump side is hindering the obtaining of documents even when repeatedly asked.

The coverage so far has been okay in various ways as shown by a chart flagged here by someone quite inclined to be totally cynical about the MSM. There is not some pure "both sides do it."  This is not just "Her EMAILZ" all over again.  I have not paid much attention to it and realize there might be some "both sides" flavor.  But, I have repeatedly seen coverage that recognizes there are clear differences.  

Again, it is not really surprising that with all the material Biden has dealt with over the years that some documents might have fallen under the cracks. The numbers are like "ten" or something, not the hundreds at issue in the Trump situation.  This might suggest the need for better oversight of documents, just like the Hillary Clinton story suggested to me that maybe better regulations were required there.  But, nothing new.

I realize -- not being naive -- the dangers of "both sides do it," and it doesn't help that it is taking so much time to investigate Trump.  For those inclined to take potshots at Garland here, I note that even now (though reports are the special grand jury investigation is complete), the Georgian prosecuted didn't bring charges.  And, she has a lot less on her plate, including the many federal prosecutions arising from 9/11 ongoing or done.  

A special counsel was appointed by Garland to deal with the Biden classified documents investigation.  I think this analysis, by someone who is more conservative than I and at times a tool makes sense.  The analysis also notes the significant differences between the two cases.  

The special counsel was appointed for Trump once he announced he was running for president.  This made sense.  The appointment here will help his case, including dealing with claims of special treatment of Biden and calls for a special counsel.  The control of the House of Representatives factors in here too.  Some were upset that it took so long in one case and was quickly done in another.  The two are not the same cases.  

One TPM analysis spoke of the "confounding double standard" involved in picking special counsels.  I am aware of the two chosen by Garland.  Jack Smith (if that is his real name) had various roles in democratically controlled offices.  Oh, he's different, since he comes off as an apolitical figure.  That's a charming handwave right there.  

Robert K. Hur does have various conservative bona fides, including being appointed by Trump.  It makes some degree of sense to appoint a special counsel that looks independent.  And, to be clear, Hur also worked for the Obama Justice Department for some years.  Garland's first pick was praised even by those wary about selecting one.  Maybe, we can trust his judgment?

The whole matter does have an "oh please" character to it. Just what we need and all that.  The other major thing (putting aside control of the House) on my radar is Gov. Hochul and her screwing up royally the selection of a new chief judge of the court of appeals.  This was something of a surprise to me since her first pick was basically okay.

And, yes, there is the upcoming debt ceiling fight, which could have been avoided if certain senators agreed to end the stupid thing.  OTOH, even President Biden at one point said it would be wrong to do that. A stupid comment on his part and I doubt he would have vetoed it if done.  So, you know, 2023 is looking to be a tiresome year so far.  

SCOTUS Watch: More Death Penalty News

ETA: Various grants on Friday filled some empty oral slots.

===

Monday's Order List had a bit of an Easter Egg among its nothing burger material. After an extended look, the reason only open to supposition, the Supreme Court sent a death penalty case back to the Texas Court of Criminal Appeals for another look.  Let's be clear.  That's all it did.  They have not taken the hint (at least the first time) in the past.  

A Slate article discusses the matter in more depth, including how a progressive prosecutor (yes, found even in red states) asked for the case to be sent back (state law required court approval).  The case was infected by a systematic screw-up at the DNA lab.  The trial court agreed but the appellate court said that the evidence still was good enough.  When both the trial court and prosecutor say the opposite, sort of a red flag.  

The Supreme Court's statement in full:

The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the Court of  Criminal Appeals of Texas for further consideration in light of the confession of error by Texas in its brief filed on [9/28/22]. 

So, though this has "HINT!" written all over it with a minimal amount of inference, what the order specifically does is require the Texan court to consider it again.  I'm not sure what that brief adds to the equation since (as noted by the article) the court is aware of the prosecutor's stance. 

Is there something in the brief specifically that matters? Maybe, it would help if the Supreme Court said.  I wonder if the more conservative justices only went along without comment because of the carefully worded statement.  Again, the docket page is interesting. They get the record and then the case is repeatedly (four times) "distributed for conference" before this decision.  The "relist" was discussed by Mr. Relist back in November.

===

The order in Mr. Escobar's case was a master of clarity as compared to the multiple denials (both in the order list and in separate orders) involving the execution by Texas of Robert Fratta.  A bunch of "no comments," which I will continue to deem wrong.  If the Supreme Court is going to be the final word on the execution of someone, they (or even one justice) can at least provide a statement on the at times (like here) multiple issues alleged.  

Robert Fratta is not as sympathetic as Amber McLaughlin, the trans inmate that raised various mental health issues and was not found warranting the death penalty by the jury (a split decision led to the judge deciding).  I think his claims (other than perhaps a wider class action concern that the execution drugs were expired) are likely weak.  But, they warrant more of a reply than basically DENIED multiple times.  

Fratta was executed for hiring people to murder his wife.  The murder (the two others involved have not been executed yet apparently) was in the 1990s but a retrial was necessary in 2009.  Still over a decade ago, but not really that long as these things go.  A little "fu" bit is his own children testifying against him and calling him "Bob." Should have kept him in prison.

The coverage of his execution includes some evidence that (as before) the drugs were expired/tainted, including a reference to him saying "it burns."  The person who I first saw reported that last statement is an expert and witness of executions, who discusses lethal injections here.  I also saw a comment of his on Twitter that is dismissive of the hopes of nitrogen gas. 

One article noted: "The 65-year-old was pronounced dead at 7:49 p.m., 24 minutes after the old, but still deadly drugs began coursing through his veins. Farah Fratta’s brother and son attended the execution, according to a prison report. The prisoner did not give a final statement."

===

After years of delays because of screw-ups, Oklahoma is continuing its efforts to clear some people off death row.  One summary of the crime again leads one not to be too sympathetic:

In October 2003, Eizember headed to Depew where he believed his ex-girlfriend, Kathy Biggs, was hiding from him at her mother’s house. He broke into the neighbor’s home to watch for her, but a confrontation ensued and A.J. and Patsy Cantrell were shot and killed.

Eizember then beat his ex-girlfriend’s mother, Carla Wright, and shot and wounded her grandson, 16-year-old Tyler Montgomery, before leaving the scene.

He then was involved in an extended manhunt that had additional unsavory details.  Like Scott Eizember himself noted at one point, he belongs in prison, where he has been for the last twenty years.  This is getting closer to logical execution material all the same.  The murder of your wife (see last case; especially without special cruelty) to me is not quite in the same league as the multiple acts here, down to kidnapping people to try to escape.  

Opposing executions is not just about "sympathy," but for whatever reason, the Oklahoma Pardon and Parole Board voted 3-2 to deny Eizember clemency.  So, two members did support it.  But, you need a majority under state law even to allow the governor to think about it.  A bit strict in my view, but there you go.  

A late controversy arose because the state was going to oppose letting his choice of minister (a familiar counselor of prisoners, if one who got in trouble in the past protesting).  But, I later saw a reference to an agreement that allowed his choice to be there with him all the same.  One thing the current conservative majority does care about is religious liberty in that specific fashion. Small favors, I guess.  

I hope the minister provided some solace while he was executed. 

===

In the midst of these things, another small development -- the Supreme Court, for now, will not intervene in litigation involving a New York gun regulation law.  Alito and Thomas had a short concurrence accepting that it was proper to let the Second Circuit, for now, handle it, though doing so with a little bit of grumbling.  

A little bit of inside baseball (and I guess this is appropriate for this discussion, given the use of guns) is that this was first noted by legal twitter before 10 A.M. on Wednesday.  It took a little while for it to be posted on the website.  

I simply do not remember (it probably happened) such an order dropping so early.  The only thing that usually happens before 10 A.M. are order lists.  They usually wait until later to drop other orders.  Again, I wonder about the timing of these things. Was this supposed to be a message?

===

Next up: A few people are scheduled to be executed next month. The name that stands out is Richard Glossip, involved in one of the cases that got Oklahoma so much in trouble.  Glossip (5-4) lost his case, with strong dissents including Breyer's against the death penalty generally, but has yet to be executed.  

Week 18

Another week, another seed for the playoffs, and a bit more drama.

The Bills lost a chance for a bye, and the Bengals game was never to be completed. The rule is to go with the percentage of games played, but they tweaked it, and they might get a neutral site versus Kansas City.  The Bills, after scuffling early, did beat the Patriots.

Jags won on Saturday. So, that left the Dolphins (on their third string) and the Steelers, who won. Helped by an early missed long FG and late by a dubious penalty, Dolphins did win 9-6. Oh well, toss in a safety at the end. 11-6. The Jets lose again. Geno Smith (Seattle) won in OT later.

The Giants rested, helping the Eagles. The Colts continued to be incompetent, giving up a 4th and 20 to Houston late, plus a two-point conversion.  This pissed off a few people since it meant the Texans lost their #1 pick.  The Texans seemed to try to lose.  They allowed the Colts to come back from a sizable deficit.  It took two 4th down plays in that drive to score.  And, they didn't play for OT.  Could have lost by one there.

[I saw a highlights video of that Texans game after writing this and that last TD was basically a Hail Mary 4th Down play from around the forty-yard line.  The team ultimately fired the head coach -- for whatever reason; it is unclear what more he could have done with a really flawed team -- but again, against most opponents, the Texans would have lost.]

The last week from Saturday to Sunday night had games of some import. Seattle eliminated Detroit tiebreaker-wise, but they also once put off as dead Packers still had a shot.  And, the Lions had a chance to eliminate the Packers, about as satisfying as getting a #7 seed to many.  It was a low-scoring game early with mistakes on both ends.  The winner in the end ... Detroit.

[A bit of a surprise that.  Detroit went ahead by four and you figured the Packers would score.  But, on 3rd and 10, with time to get the ball back, there was an interception.  Detroit marches.  It still came to a 4th and 1 deep in Green Bay territory with a little over a minute left.  A FG would mean a seven-point lead.  They went for it and made it.  Game over.]

The Giants will have a rematch with the Vikings.  The Giants lost on Christmas Eve via a 61-yard field goal at the buzzer.  Their back-ups still held down the Eagles, who had to win to get that #1 seed, to mostly field goals.  And, the Vikings are ready to turn into a pumpkin again, right?  So, why not?  The Giants basically had a good season already.  Time for gravy.

The Jets were a tease and then fell off a cliff.  To be continued.

ETA: To toss it in, after weeks of negotiating, the long contract of star Correa for the Mets turned out to be a no-go.  He got half as many years with the Twins.  In the end, it's a relief.  

Some Religious Liberty Legal Developments

A few odds and ends on the Supreme Court front as we wait for them to return to normal activities this week. An order was dropped on Friday granting the solicitor general time during the oral argument in a case. Justice Jackson is writing a memoir. And, another case was scheduled for oral argument.

South Carolina Supreme Court Protects Abortion Rights

The big news though was a 3-2 ruling from the South Carolina Supreme Court striking down a "fetal heartbeat" six-week ban.  Its staying power is unclear since it was written by someone who will soon have to retire given the state's mandatory retirement age.  This would be the one woman on the court.  Each justice wrote a separate opinion, providing different views.

Three justices struck down the ban.  The dissenters split on the reach of privacy protections (reached by them in different ways) but agreed that the law was acceptable.  The opinion of the court rested on privacy.  The second justice argued that equal protection and due process also was violated.  

Each used strong language, including things like obviously the word 'abortion' is not in the constitution, but privacy rights still are protected.  A living constitutional approach was honored. Early one, it was noted that "fetus" is appropriately applied after eight weeks.  The second opinion noted the religious liberty aspects.  

Both opinions were quite impressive and had a liberal flavor that some might be surprised came from South Carolina.  The deciding vote was a limited one that in its narrowest way was simply that the state did not provide evidence that the six-week ban had much reason behind it at all.  The justice went out of his way to rule narrowly though granted that it is likely that even if the state tried, a ban that early would be irrational.  

OTOH, it is clear that the justice would allow a range of limits.  South Carolina, in the short term, will still be a pro-choice state (saw either twenty or twenty-two weeks as the line).  The decision provides a lesson on the importance of state constitutions and express privacy protections. It shows that simply suggesting we are currently nationwide on the road to Gildead is somewhat childish and surely simplistic.  

The situation is more complex, including recent news that the FDA not only will allow pharmacies to carry an abortion pill but that CVS and Walgreens plan to sell them.  We should have national rights and national health care benefits here.  The situation is dire.  But, it is also complex, with some moments of good news.

[ETA: The Idaho Supreme Court later decided 3-2 the other way, the dissenters splitting on how strongly the majority was wrong. Long term, we might see that sort of split in South Carolina, depending on future developments personnel-wise.]

Misguided Hochul Veto 

The battle over Gov. Hochul's lousy nomination for Chief Judge of the Court of Appeals continues as she recently was sworn in. The end of the year also brought various new laws and vetoes.  Hochul vetoed over 150 measures, often involving minor and local matters.  I am not really gung ho about her ability to override the power of the legislature to this degree.

One veto that FFRF specifically opposed blocked a bill that would have notified people that they had a right not to take part in religious inclined substance abuse programs.  Each veto, helpfully, had a veto statement. This one left something to be desired.  Basically, she thought it too obtrusive to insert this as a mandatory requirement.  

The worst part was her suggestion that this might imply there is some religious liberty right in other cases.  Yes.  People do have a religious liberty right not to be pressured to take part in state required programs that further religious beliefs. And, though not absolute, religious believers have free exercise rights too.  The veto message suggests it is problematic to notify people of their rights since it might cause problems.  Okay.

One-Day Wedding Officiants

I have over the years discussed the Universal Life Church, one of those "online" ministries where you can become a minister simply by checking a box basically.  This is seen as something of a joke, but it reflects a basic concept of personal conscience.  

And, many people used it to become ministers for the purpose of marrying people.  Many NYT wedding announcements note this fact.  It was important both to support same-sex couples and to allow friends and family to serve as wedding officiants.  Nonetheless, state courts nationwide split on if this was truly a "religion" to enough degree to count for marrying. The matter split lower courts in New York too.  

This law, long in coming and in part supported by my former state senator, does not directly address this matter.  It does allow -- like some states -- a person to become a wedding officiant for a single day.  This does not really "eliminate all barriers" as suggested in the article.  Other ministers do not only obtain only a one-day ticket.  Will a lawsuit take place?

I still wonder how the ULC ministers' situation will work out.  Some years ago went to City Hall and received a certificate as a wedding officiant for New York City.  It apparently has no expiration date.  Is it still valid?  I tried tweeting my senator, but she did not reply.  I emailed earlier and did not get a clear answer.  

Faith in Congress

I saw a report that one member planned to swear on the U.S. Constitution. The official swearing-in of House members took place en masse (minus the Speaker, sworn in separately) by the Speaker.  There are also specific symbolic ceremonies.  The Senate swears in new members (remember they come in three waves, so only a 1/3 new members come in each time) four at a time. Again, there is a separate more symbolic ceremony.

A recent study of the religious affiliation (20 did not say) of the new Congress finds it is not a true representation of the nation, which is less than 2/3 Christian.  88% of the members are Christian.  As I noted in a recent essay elsewhere, just what "Christian" means is clearly up for debate.  (The essay is about being both Christian and Buddhist).

There are two Buddhists cited in the recent count. Three Muslims, two Hindus, three Unitarian-Universalists (if I picked a religion, as that term is usually understood, I would likely choose that), one Humanist, and one unaffiliated.  There is a "freethinker" type caucus made up of more than a few people, so some of them might be Christian.  Again, there is one vacancy.  The count does not include non-voting delegates.  

There is a "something else" (none) but none of the members so label themselves.  The study noted that "Nearly three-in-ten U.S. adults now say they are religiously unaffiliated, describing themselves as atheist, agnostic or “nothing in particular." Annie Laurie Gaylor (FFRF) labels these "nones," sometimes leading to her or her co-host/president/spouse Dan Baker to remind that she is not saying "nuns."  

This underlines the importance of recognizing the rights and interests of secular people, making Gov. Hochul's veto that much more of a gratuitous insult.  Religious liberty includes religious liberty for all, both nuns and nones.

Insurrectionists Take Over (1/6 Two Years Later)

A former slave was guarding some Confederate prisoners during the Civil War and noticed his former master. He reported shouted out: “Hello massa. Bottom rail on top dis time!”  

On this anniversary of the insurrection during the counting of the Biden/Harris electoral votes (1/6/21), this has a bit of a bitter taste.  President Biden reminded us to honor democracy in the midst of dishonor:

Armed with deadly weapons and animated by lies and hate, insurrectionists invaded the United States Capitol in an attempt to overturn a lawful election and silence the voice of the people.

But, who is "on top," having majority control, this time?  A majority of the Republicans in the House (less than ten senators did) challenged electors even after the insurrection invaded the Capitol.  Today, Republicans are in the majority.  I find it nauseating that this is so but two years later, especially given they continue to oppose even investigating the act.  

A fraction -- at the very most 21 (one voting "present") -- of the Republicans held up the selection of a Speaker of the House.  The speaker of the house needs to be chosen to start things into motion.  The Speaker swears in the others (by law) and then rules are agreed upon.  The 20th Amendment says the start of Congress should be January 3rd.  The Senate did start on schedule.  

(A bit of history too. Senator Patty Murray became the first woman Senate pro tempore, a spring chicken at 72 next to the senator from California who turned down [was refused?] the job.  She also shaved off a decade from her predecessor, Pat Leahy.  She also comes off as someone with a bit more of an edge than more happy-go-lucky Leahy of Batman fame.)

The House of Representatives was more of a clown show with no speaker chosen for three days.  Vote after vote took place with the strange spectacle of a clerk being the presiding officer as C-SPAN (with special power to control the cameras) repeatedly panning to show an empty chair.  Eleven votes took place, each time the Democrats had a larger plurality.  

Kevin McCarthy (portrayed over the years as a bit stupid) tried to give up enough power to obtain the dissenters of the so-called Freedom Caucus, some of the usual suspects (like Jim Jordan and Marjorie Taylor Greene) staying loyal.  The overall effect -- though I'm sure it will be forgotten by many in time -- is an appearance of a clown show with Kevin the lead clown, being controlled by a bunch of crazies.  He looked pathetic. 

A few suggested that the Democrats offer to work with some Republicans in return for some concessions.  A nice idea -- the two sides could have even found a way to work together to support a temporary leader so that the House could operate during the fight for a permanent Republican leader.  Rep. John Quincy Adams once was accepted as a temporary leader during a 19th Century struggle to choose a House speaker.  

The reality of the situation -- shades of only ten Republicans impeaching Trump the second time around (none the first) -- is that (bitch behind the scenes some) no Republicans actually were willing to do that.  We will see how things go over the next ten years.  And, there was a faction of some size (a third or so) that never challenged the electors.

But, Kevin McCarthy played the long game, especially since the most credible alternative (Scalise) did not want the job.  On Friday, on the twelfth and thirteenth ballots, two-thirds of the dissenters peeled off.  Not quite enough with a 222-212 (one Democrat died in November) majority, but the path was clear.  All the Republicans present (two for the moment were absent) agreed to take a break until the evening.  

One law professor was "quite heartened to see the House of Representatives actually engaging in a debate with everyone present."  What debate?  The only "debate" was nominating speeches.  The usage of "debate" there is a bit generous.  

The true "debate" was as usual behind-the-scenes negotiations.  And, floor debate is a thing. One-sided, and he duly noted. Those debates at times have a bit more substance.  Everyone might not be around in those debates, but everyone was not on the floor at the same time here too.  They were around to be present to vote but moved in and out of the room.  

The process is worthy of scorn.  When you have a tiny majority, yes, there will be back-and-forth.  You might have problems obtaining an agreement. Yes, Nancy Pelosi managed to retain control even with tiny majorities.  Still, it is reasonable for the dissenters to use the situation to their advantage.  On the other hand, days of being unable to start the session, with so many fruitless votes, is quite another matter.   

(The rules have a mixture of good, bad, and okay.  A summary and a more complete rules resolution.)  

And, the blame is shared.  First, you have the nature of the current Republican Party, which many voters simply don't care about.  They might care some -- thus the closeness of the election and winning the Senate -- but not enough.  Second, you have a weak leader in Kevin McCarthy, who makes the situation worse.  Finally, you do not have a faction of Republicans that are willing to push back to check the extreme faction.  

The fact that Kevin McCarthy finally gained control in the evening of 1/6 is quite fitting on some level. The insurrectionists finally took over, if two years later than some expected. Shame on the nation that.  

We will see how McCarthy likes what he traded power for, including if the Democrats can take advantage of the minority tactics.  I never really felt that he would lose the race even if some assured us things would go badly for him.  Who else would get power?  Shades of Biden in 2020 really.  Some, including me early on, might have wished otherwise, but he was the one that was going to be the nominee.  THAT turned out okay.

This -- even if the beginning was somewhat fun to watch (who doesn't want to see Kevin McCarthy embarrassed?) -- will be a bit less so.  OTOH, we survived Trump.  We will survive this.  

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I wrote the above expecting that the evening was set and we would get a vote for speaker on the 14th vote.  In what apparently was unexpected, what we got was McCarthy getting exactly 50% with four others and two presents (Boebert early).  Gaetz timed his "present" to come late.  That isn't enough.  

There are 222 Republicans (two came back into town).  You need an actual majority of 217 in that scenario.  So, he lost AGAIN.  Then, there was a vote by Republicans to try again on Monday.  At first, it looked to be a tie (which is a failure without a tiebreaker).  Then, some Republicans began to change their minds (more than the original 21 dissenters), so not quite.  

Not sure what the point of all of that (some dominance pissing contest perhaps), but he won on the 15th vote.  This time the dead-enders all voted present, which did not trick.  So, the loser wins.  After midnight.   Insurrectionists won.  

Some want to blame New York Democratic leadership.  SCOTUS voting rights rulings including shadow docket actions involving districting arguably are as or more to blame.  Net, bottom line, a majority of the people who voted -- not by a hair either -- voted Republican.  

The blame can be shared.  The bottom line is who is in power.  Insurrectionists and enablers.  The "moderates" and "serious ones" went along.  Fuck you.  You poison the well of democracy. 

McCarthy was sworn in and then he swore in the rest.  

Not a single fucking challenge on 14A, sec. 3 grounds.  Bullshit to that.  That clause, like the emoluments clauses and the Third Amendment, apparently doesn't mean much at all.  Also, Ted Lieu tweeted about challenging the seating of Santos. Also, no challenge.  That was a weaker threat since he could only be challenged on qualifications.  But, more b.s.

The "b.s." for the second part is that there really was no chance of him not being sworn in.  The first part is different.  You can argue that there is not enough evidence.  But, multiple people flagged the issue, including posing questions of possible guilt.  This includes people with some expertise and members of Congress.  If not a single person wants to put the matter to a vote, to help us clarify the issue, that too is all b.s.  This includes Congress not passing legislation to clarify the process, and not just for Trump.  

[ETA: Gerard Magliocca is a bit of a 14A, sec. 3 expert and enthusiast.  He testified as an expert in at least one of the cases and wrote about it. 

He recently co-wrote an op-ed (that remarkably used without comment on the strong opposition to the Ford pardon of Nixon as a positive precedent) again seeing it as the ideal -- over impeachment or criminal trial.  

And, now he notes -- in an "oh well" tone -- how it wasn't brought up last night.  Okay.  Maybe, you can get it in your head that people really are not paying much attention to it, even if it is a professor's favorite thing.  Maybe not.  Why should he care?  He's a reasonable conservative, just observing.]

No rules were agreed to -- that fight was put off to Monday.  But, you know it will be settled. Eventually.  What a waste of a week.