SCOTUS Watch

Orders and Opinion 

The Order List brought the usual, a somewhat interesting case involving "testers" (who challenge practices as "test cases" without really having the intent to use the services), and a Gorsuch/Kavanaugh dissent from cert that received some liberal support.  But, not from court liberals, though it would have been nice if one dropped a statement saying why.  

The dissent involves a somewhat complicated issue involving the use of court-appointed prosecutors, which very well might in some cases be problematic.  Prof. Steve Vladeck, who I respect, had a tweet that quoted a portion of the dissent with approval.  But, looking at Amy Howe's summary (see above) and the government's brief,  it surely looks a tad complicated.

I can understand why no liberal signed on, especially given the separation of powers cases Gorsuch cited.  Anyway, one opinion was dropped, with an interesting 6-3 split.  The summary argues it is an uncontroversial case (eight cases went to judgment, three justices having two each, each was various uncontroversial).  The one quirk was the split allowed Sotomayor to be the lead justice in the majority, which she wrote.  

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Updates

The Supreme Court in recent years provided a notation on the opinion and opinions related to orders pages when they made corrections. They started a new thing sometime during the term where they (maybe years earlier than in the past) started to post a draft form of the bound volumes. 

More opinions are now in this format (.pdf files provided).  You can click on the opinion links to see if there are any corrections (see the end of the opinion).  The opinions relating to orders page is still in the old format though there are no revisions (orders are rarely edited, in part because they are shorter).  

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Is Change Possible? Got To Start Somewhere

Justice Sotomayor likes to stay positive when she does her speeches and public appearances. Knowing her audiences, she grants there are difficulties (being careful to be suitably vague -- I sent her a letter about having translations for Spanish speakers and she said it was a policy issue she could not discuss, though cited a part of the website that has info in different languages), but pushing people to become publicly active for change. 

This is a useful approach.  We do have a civic responsibility to not only keep informed but act in ways that help change. This all can seem depressingly impossible. We have a tainted packed Court and it looks like we are stuck with it in the long haul.  

We have lower court judges, with nationwide effects, applying horrible rulings (which certain writers continuously shove in our faces in a "look what new horror was done!" sort of way that even I get tired of after a while as a tad overblown).

One can go on.  Still, long term, things change. The Supreme Court in the 1980s had at least double the number of written full opinions than now. Various changes occurred to change this, including changes in mandatory appeals (limited today to largely certain voting cases).  

I know that seems like a long time ago. Still, even into the 2000s, the Court was different than today.  A new book on the "shadow docket," for instance, flagged 2017 as a big date.  This is not that long ago.  The problem is the assumed wall in front of us.  But, Democrats controlled Congress before, and can again.  And, change does come -- we have same-sex weddings, etc.

One basic part of change is recognizing the problems.  So, the author of the book on shadow docket addresses various problems, including rank judge shopping in Texas. Imagine if one conservative judge deciding something would not scare us so much? There are bad judges.  But, the system is supposed to protect us from them, including random assignments, appellate reviews, limited effects (not nationwide injunctions in most cases), and so on.  

It all seems overwhelming with immediate relief (such as tweaks on ethics rules) of minimal importance.  Things look better long term though I grant that at the moment, it doesn't look great at all.  Such is why some say "that's nice, Sonia, but maybe retire, so Biden can appoint someone who can replace you.  Imagine if DeSantis is in power in 2026 or 2029!"

Since she was nominated less than 14 years ago, this suggests even term limits (18 years is the standard) would not end such talk.  

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Coming Up

We will have a two week break of sorts though they will continue to work behind the scenes.  There will be an Order Day on Monday.  There might be other orders.  A bit interestingly (I don't recall such a future schedule citation) April 14 (also conference) is flagged as the next (possible but likely probable) opinion day.  

Report: Trump Indicted In NY

The weaponization of the legal system to advance a political agenda turns the rule of law on its head.

It is un-American.

The Soros-backed Manhattan District Attorney has consistently bent the law to downgrade felonies and to excuse criminal misconduct. Yet, now he is…

— Ron DeSantis (@GovRonDeSantis) March 30, 2023

The author of a book on strongmen and authoritarianism tweeted about the reported indictment of Trump in New York over the Stormy Daniels matter (details pending) and the reaction.  Authoritarianism in action.  

The tweet here is reprehensive and pathetic in about equal measure. The Supreme Court back in the 1980s held that states cannot resist their Art. IV extradition duties.  Reports are that Trump will just surrender (nice word) to authorities for processing anyhow. The Jew/NYC baiting is chef kiss.  Either way, this is such a suck-up approach from Trump's alleged major 2025 rival.  

This (with some toning down on the Jew bashing) response is par for the course.  I won't go through posting the tweets or anything, but the governor of Virginia (the hoped-for "moderate" alternative in 2024) had a similar comment. Of course, the ultimate puke-inducing (head of the fucking people's House) Kevin McCarthy is up to his usual bootlicking ways.  

I realize we have to pace ourselves (oh so concerned about everything while chuckling in her nerdy way -- yeah, I'm bored with her for a while now -- Rachel Maddow says it will be "boring" -- yeah, we know, Rachel -- we have been watching paint dry for years now with people at your network continuously trying to excite us with the latest development).  While doing so, we should remember how horrible these people are. 

I don't want to do too much to assume what will be charged (reports of over 30 charges? hard to imagine that many even technical violations) since we can just wait ("what fun is that?") until it happens (the indictment is in open court after all).  Still, various basic things can be cited, and I have.  

The overall authoritarian / strongman playbook includes the level of masculinity involved in sex with a porn star.  It involves the obeisance from others to Dear Leader to a degree that seems pathetic to outsiders. 

It involves disrespect to the rule of law, and the law does not apply to certain people (there is a certain normalcy to these charges -- they don't go to the heart of our election system; that might help them go down easier).  This includes protecting the authoritarian leader by bending and breaking the law.  Others might get hurt (Michael Cohen here, a bunch of 1/6 people elsewhere), but not Dear Leader.  And, so on.  

We have a long way to go.  Long way.  But, like the impeachments, crossing the Rubicon to arrest Trump is a minimum level of basic rule of law, republican values in action.  Maybe, it will help the ball rolling (will Georgia be the April news?  nice Easter Season thing).  We will see.  But, this matters.  Don't belittle it. 

[I forgot to reference it but this should be underlined more often. The coverage of the announcement in the NYT included a reference to "Trump's family business" being convicted of tax fraud last December.  

You know the drill: "imagine if Biden" ... imagine if BIDEN'S SON had a business (with its chief financial officer) so prosecuted.]

What the Bible Really Tells Us: The Essential Guide to Biblical Literacy

I wrote the author's books discussing women in the Bible. 

This book is also helpful. Her books have a few issues. For instance, she discusses Paul based on what Acts and his letters say without noting the former should not be relied upon without a big grain of salt.  Her care in not just letting the Bible be the end all is mixed. This might mislead some.  

And, this one lays it on a bit too thick about how much our law and culture rests on the Bible. This is so especially without emphasizing it often is based on broader principles shared by other traditions.  Still, as with her others, even if you do not agree with parts of it, it is a good thought piece for the average reader.

I can say or summarize (I took some notes) more about the book but will leave with two comments. 

First, she talks about that basic question: why is there suffering in the world.  The three basics: who knows? (and how dare you ask, look at what God did!) [Job], you deserve it [or are victims of God punishing those who did], and demons [post-exile/Jesus].   

My gloss on the Book of Job is that one reading is that "this is bullshit."  Like reading between the lines of Pravda, this basically is a biblical author making a point about the injustice of it all without directly challenging God.  But, that is what a reader should get out of it when Job is a plaything, and when he finally asks "why," he gets a speech from God about how he created the world and everything.  Charming.  Back to my question.

There is also a chapter on sex and sexuality.  First, we are told that the Bible is not aware of sexual orientation.  So, the writers just see what they deem as homosexual acts.  The Sodom example is about inhospitality and rape.  Leviticus is largely about what are seen as foreign impure acts done by pagans.  And, it isn't quite clear what Paul is talking about.

(Also, to mix it in, the types of homosexual relationships the biblical authors often imagine would be seen as unbalanced abusive ones such as older men having sex with young boys.  I'm sure they happened, and there is some evidence of them in ancient writings, but the Bible simply never really deals with what we would deem as run-of-the-mill same-sex relationships. Male prostitutes or the like are not the basic concern to us.)

It also addresses the two passages some deem gay-friendly.  Ruth is Naomi's daughter-in-law and has run-of-the-mill marriages. David and Jonathan are like a ton of "I love you man" soldiers, basically.  The idea they are gay is a big stretch. Lots of men and women have deeply close relationships without it being sexual.

I think we need to be honest here. The Bible (and the book grants it is patriarchal) has an understanding of the proper roles of the sexes. A passage not addressed directly bans improper dress (see trans debates) that violates gender norms. The assumption is men and women marry and have children.  Anything else is "unnatural" as Paul directly suggests in the basically one crystal clear verse in Romans.  Clear sex discrimination!

The emphasis given to all of this by the Catholic Church in particular as if it is basic to the faith is absurd. Nonetheless, like father-daughter incest not being discussed, a major reason same-sex relationships are not dealt with more is that is just out of the realm of imagination.  

We can note that biblical authors are not knowledgeable about homosexual orientation.  We can note they were not as obsessed about the whole thing as some make them out to be.  We can mix in some "we need to realize they lived in another time" as we can do when handwaving some sexist stuff. But, bottom line, we need to push back some if we give an honest accounting of what the Bible says about proper sexual relationships.

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I talked about a book about protecting intimate privacy and another about menstruation in the past.  Full reviews are now up on another website.

Firing Squad

Earlier this week, Idaho lawmakers passed a bill authorizing its use in capital punishment, adding the state to the sparse list of those supporting the measure, including Mississippi, Utah, Oklahoma and South Carolina.

Interesting article in the NY Daily News and I see that the author has written various articles about somewhat similar topics.  

Lethal Injection and the False Promise of Humane Execution by Austin Sarat (and some students) is a small book about how lethal injection is botched. I talked about it a few months back and it was a side panel book.  The book spoke about the problems. 

It was not a solution sort of book, other than that the death penalty was bad.  The article cited Sarat's study of botched executions, noting he did not find one among the firing squad cases (a tiny 34 of the whole).  The article is careful to note that Sarat still prefers to end the death penalty totally.

[His research was cited by Justice Sotomayor in her 2015 dissent in Glossip v. Gross. See more below.]

Botched executions are but one part of the problems with the death penalty though like innocence claims are seen as particularly striking. There is an emotional level here but also the fact that the cruelty and unusual nature of the action carrying out executions is seen as the core of the constitutional barrier.  

In recent years, the problems of lethal injections have been more and more highlighted. One problem was the shortage of drugs arising from opposition to their use, which is a sort of self-feeding problem.  Fewer drugs meant the usage of more dubious alternatives. The opposition also leads to secrecy, which is problematic as well.  Ditto changing protocols, sometimes late in the game. Again, problematic.  

Lethal injections in the 1970s were put out as a solution to dubious methods like electrocution.  The article notes that the firing squad is an old but little-used method (mainly in the military and Western areas, especially those with Mormon populations that found it religiously appropriate).

After the return of the death penalty in the mid-1970s, three people were executed by firing squad, including the famous (had a movie and everything) Gary Gilmore. Religion and fear of the effects of lethal injection influenced the other two.  

And, Sotomayor repeated her citation of it as a possible alternative in 2017.  Not that she said this as if it was a great choice.  Consider her first dissent (cited above):

A return to the firing squad—and the blood and physical violence that comes with it—is a step in the opposite direction. And some might argue that the visible brutality of such a death could conceivably give rise to its own Eighth Amendment concerns. 

Alex Kozinski, the judge who was pressured to resign for his dubious activities of a #MeToo variety, once noted he supported it to show us the truth about homicide by the state.  Sotomayor suggests she is warier about such things.

The firing squad erases concerns about shortages (one thing we do not lack is bullets). There is a concern that it is "brutal."  It also provides a more direct role in executions, at least in a symbolic way. I guess we can imagine some machine that is rigged to shoot the person.  A tradition of the use of blanks so that it is not known who exactly killed the person was in place. We have creativity.  

The article cites concern about the violence of the executions traumatizing witnesses (including families of the victims) or those who have to clean up the mess.  I question if the latter is much of a problem if the whole thing is done right.  

The article also suggests a very short window of time (ten seconds) where the person can feel a lot of pain.  But, there are risks in the case of a lethal injection of much more.  We also might not know all the risks since there is such a small sample size.  OTOH, we have had a lot of studies of shootings. 

On some level, the firing squad seems logically appropriate. I think the reason it was basically discontinued is that it seems barbaric.  This is in actuality more symbolic than real. Lethal injection has various problems, even if they did not keep on being botched.  The fiction is like putting a dog or cat to sleep is part of the problem.  

We continue to have a small number of executions.  Currently, the average seems to be around twenty a year.  Lethal injections continue though in recent years problems still arose or there is a chance they arose (the secrecy hurts full disclosure).  But, I think alternatives will be tried.

The rule set forth by the Supreme Court in recent years is that when a means of execution is challenged, there must be an alternative offered.  So, Sotomayor's second dissent cited the request of the murderer, and how the firing squad might be "comparatively" better.  Maybe so.

In recent years, the alternative seemed to be nitrogen gas. Some defendants tried to ask for that. They failed though recently one person did work out an agreement after the state didn't manage to execute him with a lethal injection that it would be nitrogen gas or nothing.  Why not? Way to try it.

It's difficult to start anew. There is a lot of inertia in criminal punishment and that includes legal challenges that can feed off novelty.  This might be a factor.  Still, it seems strange to me that nitrogen gas has yet to be used.  Not that I think it is a nirvana and I have seen a few experts agree with my pessimism.  

Criminal justice is filled with imperfect alternatives. Plea bargaining is a prime example.  Any system that puts people in dangerous cages is imperfect.  So, until we reach the point where the death penalty truly is no more, examining alternatives is a depressing but appropriate alternative.  

This pops up when addressing protecting the religious wishes of people to have ministers with them when they die.  But, there was a creative brief by a group supporting separation of church and state.  If we are going to be concerned about the religious liberty of the people here, isn't executions problematic?  There surely are reasonable alternatives.  

Ah, the rub. The death penalty system is often lacking reason.

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A little addition.  George Santos has largely seemed to be no longer a story, apparently, though he pops up from time to time.  Like this story of his (as compared to his former public assurances) admitted fault in an old crime in Brazil.  

The Republicans do not have a margin of one in the House. Surely, every vote counts and Santos might have a few friends among his MAGA colleagues.  But, it seems it is a dubious cost/benefit equation to keep this guy around.  

Still, there is the usual "admit no mistakes" approach, and again the assumption people are bored and have mostly moved on.  "We can stick with him for the rest of his term."  He did put in paperwork to run again, but you know. 

Still, no circular firing squad of sorts yet, even if New York Republicans mostly hate the guy.  For Democrats, he is the gift that keeps on giving.  

Kiss Me (Film)

Kiss Me is one of the Showtime Adult films available on demand. I probably referenced this before.  But, this post is in honor of Kristen Scott, who goes with a short somewhat punky hairstyle these days.  You can get a taste of her at that Twitter link. 

There seems to be less soft porn on the regular cable changes (HBO etc.) these days.  But, a look at one of her profile pages will tell you she was in hundreds of films (which might just be scenes in some cases, but still) while still being under thirty.  She is a small thing (under 100lb) but has a nice look (she's the brunette in that photo) in this film all the same.  

As is the norm apparently she has big tattoos.  In this case, the most noticeable is the script, which the web page describes:

"Love without depending/Live without pretending/Speak without offending/Listen without defending"

I personally am a fan of at best small tattoos (I have one of my own), but then what do I know?  The current crop of Showtime soft porn does not exactly promote natural-looking women.  She's a bit more natural than is the norm in many of these films.  And, you can find more natural-looking people if you search for them.  There's a market for most things.  

The idea in Kiss Me is that a young woman has a mental block when she kisses women (the opening sex scene -- which might be the best -- is a fantasy).  She talks about it with a sex blogger and her friend (so four women are involved here, four sex scenes -- two with Kristen Scott).  And, she gets over her problem by the end.  Ah, the benefits of blogging in all forms.  

Kristen Scott is the best thing in this film though the two blondes she has sex with are not bad.  The fourth character is okay too if a bit boring. Decent film of this type with a bit of thought put into the whole thing. So, put a burrito in the microwave, maybe make a pot of coffee with the now old-fashioned in the days of pods coffee maker, and check it out.  

A warning of sorts to those who see it on Showtime. Regular pay channels like Showtime have some sort of rules in place for this sort of porn, including a very limited showing of pubic areas.  Any penis you see is as a norm likely to be by mistake from what I can tell. And, even with girl-on-girl here, the preview I found on one of the links above gives you more intimate shots. 

If you feel the sex scenes seem a bit choppy, that is because they are -- certain camera scenes are off limits.  Which weakens the films.  There is a lot of moaning and such while many of the visuals are less hot than you would like.  But, you can get a lot of porn online if you want more explicit material, even if you wish to get it for free.  

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Talking about lesbians, here is an old analysis of the 1970s teen novel, Happy Endings Are All Alike.  This is a rather depressing book, even beyond the fact that a book whose back cover basically promises a lesbian love story (with some vague threat cited) is about half about a brutal rape.  

The book starts off promising enough, though we soon learn that one of the girls had to deal with the trauma of her beloved (like sisters!) dying. It is cited at one point that her father is 43, so both parents (she has an older sister in her 20s) were young.  

This trauma helps her have a pessimistic view of "happy endings" which includes rejecting her girlfriend's dreams about their future together.  I do not think this sentiment improved too much after she decides it is a good idea to test the waters by accepting a date ("why are you so upset?" ... as two people note, it would be obvious if she was going out with a guy). This leads to a fight and leaves her girlfriend alone. Which led to the rape. 

As the review above notes, the book has a lot to be said for it, including good writing and complex (and flawed -- though the rape victim comes off as at worse a bit too naive) characters.  Still, you have a limited number of same-sex books at the time, and you have yet another where a lesbian is some kind of victim?  

And, the rape is not only rather brutal (it is not off camera either; there is a brutal honesty here, including the viewpoint of the rapist), but it dominates the story.  The rape comes halfway and even before then, we see snapshots of the rapist to foreshadow and warn.  This was about the time when I Spit on Your Grave (Day of the Woman) was made too.

The book was very good and quite a creature of its time ("she won her Cher record").  But, I wonder if some girls looking for positive material felt a tad cheated all the same.  "See Peggy, if you go out with some boring guy, your true love is going to be raped, so better not do that!"  My movie guide says the so-called ridiculously silly film they saw, btw, is pretty good. Three stars!

Atheist's Day

I did a bit of digging and asked a couple times on Twitter, but don't know if March 23rd was chosen for a reason. But, it was announced as Atheist Day a few years ago. FFRF has a wider concern about the separation of church and state, but it is basically also very atheist-friendly. The radio and television shows have a lot of good content.

We believe in God (I talked about how an author I read has a book about the development of a belief in Satan too) for various reasons. I think there is some poetry in there. "God" represents an idea. We as humans like to make ideas concrete. So, we have cupids for love and so on.

"Atheist" means various things too. When people use the word as a self-identifier, it often means more than the fact they do not think there is a God.  Atheist Day (especially since it is also for supporters) can be honored with all the complexity. 

I don't believe in the typical concept of God.  Not only do I respect many who do (I'm also not sure really exactly what deep down many believe), but wonder however about what exactly is involved here.  I do not proclaim that "I am an atheist" though the people who know me personally probably would so label me.  

Again, that term seems to have symbolic baggage that I am not completely comfortable taking on.  OTOH, like "Christian" not being merely hardnose evangelical conservatives, I probably should not let strong atheists of certain types (Dawkins and the like) color my acceptance of the label.

Still, I think of myself as more of a humanist or something than an "atheist" though the label fits.  There are atheists who are ministers (of mainstream religions).  Maybe, I should use the label more to show its diversity. I am not anti-religious.  I think certain religions do a fine job and if required would probably be a Unitarian-Univeralist.  

I support atheists, including those who are burdened by private and government parties for their beliefs.  Happy Atheist's Day.  

War, Sports, and SCOTUS

We are having various discussions of the twentieth anniversary of the Iraq War, including how it was a sham (with a few trying to convince us it was not).  I discussed it at the time over at the Slate fray.  Remember the "star" days?

My basic take was that war is a last resort (especially with the Bush Administration and some of the seedy characters supporting it on the Iraq side) and the case wasn't made.  At best, there was maybe a case. But, not enough to toss the keys (authorization of force) to Bush. It didn't seem too hard at the time. 

(The war decision.  The alternatives? Harder.  A basic lesson here is that killing people often doesn't solve matters. Horror movies with all those sequels sort of have a point on that end.) 

I also didn't buy the "can't criticize now, the war started" bit.

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Sport is an alternative to war, including worldwide efforts like the Olympics. The World Baseball Classic is truly a "world series," and various baseball fans (and players) had fun with it.  Until now, Japan won twice, the Dominican Republic won once, and so did the United States. After an upset Mexico team (vs Puerto Rico) blew it late, it was U.S. v. Japan.  

The series ended on basically almost a scripted note -- Ohtani v. Mike Trout with the U.S. down by one, two outs, top of the ninth. The Mets connection was that Jeff "Squirrel" McNeil started the ninth with his second walk off the bench.  A double play then set up the finale.  Japan won.  

The spring break feel of it still was there for the U.S. gave some run-of-the-mill type (his overall record about even won/loss) the role as an opener. And, he gave up the two runs that made the final score (3-2).  Still, it was a fun series, even without the new timing and shift rules.  

MLB should have more games throughout Latin America at the very least.  They are starting with a series in England.  Fine.  Do more of that. Rotate in England, Spain, Italy, and so on.  I would have two foreign series to start: one in Europe, and one in Asia.  Promote the world nature of the game.

Our "World Series" amounts to one country and a team from Canada. This was the true World Series.

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The dog toy parody game had some fun moments though many justices did not seem too interested. It was a fairly quick ninety minutes.  More details on the leak "investigation."  

And, the final March execution scheduled in Texas, for now, is off.  More SCOTUS action next week though. 

SCOTUS Watch: Opinion Day

The Supreme Court in a short unanimous opinion by Gorsuch held for a deaf student in an education law case. Limited issue but accounts that I saw noted it's still important. One tidbit: Gorsuch, regularly cocksure, notes at one point that two approaches were credible, but one was more reasonable.

To piggyback on the first veto, Biden also signed his first laws out of the new Congress. One is a Senate bill that "requires the Director of National Intelligence to declassify certain information relating to the origin of COVID-19." The other is the stupid override (fourth in 50 years) of a D.C. law, the criminal justice reform.

As I noted, that is a bad call but should be put in perspective. Hopefully, a second attempt can be made. Again, it wouldn't have been put into effect for a couple of years or so anyhow.

SCOTUS Watch: Jackson Solo

The Order List was a bit longer than usual, and yes, there was a bit extra. Among the usual nothingburger, Justice Jackson has her first solo dissent to flag the overuse of Munsingwear vacatur (when courts vacate opinions that become moot). SCOTUSblog recently had a podcast on this bit of inside baseball among the "shadow docket" (Vladeck book in May). The specific case (involving abortion) is here.

The oral arguments this week are highlighted by one about Jack Daniels being upset about a dog toy parody. But, first, we have water rights for Native Americans. Sotomayor is feeling under the weather (did Gorsuch give her something?!) and took part remotely.

Meanwhile, Biden never had a tie-break as a vice president, but has a veto now. There is a filibuster-free means to overturn federal policies and one was found a couple of Democrats in the Senate supported. Well, got that footnote out of the way.

A Right to Lie? Presidents, Other Liars

I found a little book entitled A Right To Lie, which uses current rules that allow much more restriction of what government employees say as a way around very strict First Amendment rules.  The book goes into some detail about the lies of Trump and how that is one method to address them.  

It has a chapter on the Stolen Valor Case, which involved a minor governmental official lying about being awarded a congressional medal of honor.  I'm inclined to say that Justice Alito in dissent has a point. [And, in a "how did this slip thru" bit, the book wrongly says the majority had five votes; it had six.  Kennedy wrote for three others; he made four. Breyer/Kagan concurred.]

On the narrow issue -- not "lying is never socially valuable" or something, it is at least a close case.  This is not about a "Ministry of Truth" ... it's a clear objective factual detail.  The person was also not merely a civilian or in this case running for office.  He was a member of the government.  The law, perhaps, was overbroad.  But, again, sometimes these things are taken too far.  It is not like normal bullshitting or the like.  

Everyone is assuming that Donald Trump will be indicted in New York next week. I am on record saying that prosecuting Trump is a terrible mistake. Nevertheless, there are two implications of that decision that I want to highlight.

Mark Field, a regular commentator when they allowed comments, noted once in response to my reference of this guy being self-identifying as a Never Trump type, that the label should require the willingness to adequately address the wrongs of Trump.  

This guy does not.  

He at times is useful -- his 14A, sec. 3 scholarship alone -- but takes an ivory tower approach.  He wants that provision to dominate but sees how little it is used.  A quite useful-sounding congressional bill? Goes nowhere. Possible challenges when the new congressional term began? Nothing (his reply: oh well).  The provision generally?  A few challenges, so far a single minor official is being blocked (for now at least).  

He supported an artificially high standard of proof in the first impeachment and set up a bunch of overblown concerns (including the pro tempore presiding, which my research suggests actually happened in at least one judicial impeachment, at least for part of the trial).  He was wrong, wrong, wrong about everything.  He even noted the last part.

GM also ignored that impeachment is different than denial of office-holding. Which he would challenge and we saw how that went.  Years of litigation repeatedly run out the clock.  Basically, with an assurance that we find him distasteful and all that, we will find yet another reason why he alone can avoid consequences. 

Recall Clinton settled regarding the legal proceedings connected to the impeachment, including paying a fine and having his law license suspended for five years or something.   And, he never ran for office again.  Trump? Well, he's special! 

First, a New York indictment makes a Georgia indictment more likely, even though the two cases are very different. Being the first prosecutor to indict an ex-President is daunting. Being the second one to do so . . . not so much. 

I think he's basically right there.  This is one reason I support it. It sets a precedent. It shows he is not above the law.  This is obviously a "terrible mistake."  Trump enabler says what? 

Second, a New York indictment makes the legal effort to disqualify Trump from the presidential ballot more credible. 

The argument here is more psychological.  It shouldn't matter.  The disqualification provision applies simply for being involved in the insurrection.  The Georgia indictment at least would be somewhat related to that.  This is not even related to that election.  It's a much more typical bit of campaign law-related violation.  

But, he might be right.  Nonetheless, he notes that even here only "some" judges might look at things differently.  That's of limited value.  Some nice-sounding words only take us so far without a final result.  He can blandly comment from his ivory tower as it all goes down.  Slowly oh so slowly.

Unilateral Assistance of 1/6 Truthers? Shrug!

I don't read Talking Points Memo as much these days in part because many of the pages are blocked or have view limits (ten a month) if you do not subscribe. But, there is still some good content I can access. And, something caught my eye.

Where Things Stand: Most Americans Are Chill With McCarthy Giving Tucker Jan 6 Tapes!!, Far-Right Media Declares

The article discusses a certain poll about how Speaker of the House Kevin McCarthy is doing.  This includes the subject matter.  This is just one poll and one snapshot of time.  But, polling by now does not seem a useless metric.  At least, if it was, social science should stop using it!  

In total, 42 percent of respondents said they approved of the move, with 23 percent indicating they “strongly” approved and 19 percent saying they “somewhat” approved. Thirty-eight percent didn’t agree with McCarthy’s decision and 21 percent were “not sure” — presumably well-balanced humans that don’t follow this stuff. The split among political ideology was predictable, with 53 percent of Democrats disapproving and 61 percent of Republicans approving.

The analysis notes how a far-right website spun this in the most positive way possible.  As you would expect. Nonetheless, the analysis of that TPM article seems to be basically a "shrug."  I am somewhat more upset.

Basically, we have the usual conservative segment accepting what the leader of the House does.  The idea is that there is always going to be a little over 40% that will agree with the Republican/conservative point of view.  So, the nonentity who ran against Schumer? Got over 40%.  

This is depressing.  Kevin McCarthy is someone who many "MAGA Republicans" (Biden on down is using this term and I admit it is starting to bore me... not because it is necessarily untrue) find distasteful. The idea that more people do not disagree with him here is notable.

I think this is a line-in-the-sand issue.  He released the tapes to a 1/6 Truther.  It is hard to understand how this should be allowed even as a matter of procedure.  Should not both branches of Congress agree, even if we accept (as we should not) the unilateral release to Tucker Carlson? 

But, who disagreed?  Thirty-eight percent.  So, maybe basically the core of the Democrats.  Less so than the agreement side as a whole.  One side? It's a matter of strength of acceptance.  The other?  A significant group is "not sure."  This is likely a mixture of not knowing about it and not having a strong opinion.  Maybe, more the former.  Who knows really.  

The party breakdown is not better.  A bare majority of the Democrats disapproved (granting a margin of error). That's ... [expletive] tragic or something.  I guess I should be happy only 61% of Republicans approved.  That is somewhat positive.  It suggests a realization something is off.

Still, some line in the sand.  Sigh.  I realize some things that we find appalling ("we" here being fellow travelers) such as this whole Judge Kyle Duncan business gets much more mixed reactions elsewhere.  The whole "Twitter isn't real life" thing.  (Or, your Twitter feed is not real life.)

We have to factor that in.  Still, some things are more of a concern than others.  At the end of the day, I think the far right has a reason to be happy here.  See, Kevin, no real consequences!  

"Woke" and SCOTUS Watch

LOL: Briahna Joy Gray BREAKS the brain of Rising guest Bethany Mandel by asking her to define "wokeness" pic.twitter.com/uwRSSH0LaM

— The Vanguard (@vanguard_pod) March 14, 2023

This video, as she herself realized at the time, went "viral" because a conservative writer (who wrote a lot on the subject) could not define "woke."  I'll say a basic thing and then shoehorn it.

Liberal-minded sorts are often not big fans of Gray ("stated that she voted for Jill Stein in the 2016 presidential election"), but she set things up perfectly here.  She calmly noted the term "woke" is widely used but has a somewhat unclear definition.  So, she asked her guest what it means.

"Woke" is a general epithet (we even have "anti-woke" legislation) for conservatives these days.  Still, that is an excellent approach when having a conversation, including with a guest on a show.  Do not just let the person use buzzwords.  Get a clear sense of how they are using them.  This helps the conversation, is fair to both sides, and informs the listeners.  

Mandel's Wikipedia page includes a citation to her efforts in editing children's books to provide a conservative gloss on historical figures. One such book is about Amy Coney Barrett, who replaced Justice Ruth Bader Ginsburg.  This a way to flow into today's Supreme Court event (non-court session available live via the website) honoring Ruth Bader Ginsburg.

A bill was submitted yet again to require televising SCOTUS sessions.  The bill has bipartisan support, the minority chair of the Senate Judiciary Committee (Chuck Grassley) a long supporter, if not really doing much to do the heavy lifting required for its passage.  Basically, it's nice he supports it but doesn't make him too much better than other Republicans generally.

["Allowing cameras access to Supreme Court would be a victory for transparency and would help the American people grow in confidence and understanding of the judiciary," Grassley said.]

Ruth Bader Ginsburg was born on 3/15/33 in Brooklyn, which is also where my mom was born a few years later.  She too is named "Joan," though apparently too many Joans at school was not an issue, so she retained her first name until the current day.  "Ruth" is actually the name of my maternal grandmother (an Irish Catholic).  She is the one grandparent I met.

Ginsburg would have been happy that the solicitor general is again a woman (as was Elana Kagan) and one that is an even more skilled advocate.  The SG, who SCOTUS today also granted argue time in two cases involving Native Americans,  started things off.

[Prelogar said that Ginsburg was surely the smallest in stature.  Ah.  Little known, except for a single opinion and for being under five feet tall, Alfred Moore very well might have been.]

It was a nice event though a bit bittersweet.  The complexity of her life, not just about a few recent years of a Jewish grandmother type being the "Notorious RBG," was discussed.  This includes her concern for the proper use of language, which is particularly seen in her deliberate speaking style.  It is also shown in her editing skills.  A prime tool for a lawyer, professor, and judge.  

The Supreme Court, perhaps with some Irish cheer, had a conference today.  Orders (Monday) and opinions (Tuesday) are scheduled along with the start of two weeks of oral arguments next week.  Welcome back. 

Good Girls, Bad Girls of the New Testament

Today is St. Patrick's Day, which is now a day mainly to honor the Irish. A couple days from now, the lesser-known St. Joseph's Day does the same for Italians. I noted here a long time ago that we don't hear much of all about Joseph in the New Testament. And, since I'm Irish (mom) / Italian (dad), I created my own St. JP Day (3/18) for us.

The original origins of the two (three?) days as saints days make a brief reference to Good Girls, Bad Girls of the New Testament: Their Enduring Lessons by T. J. Wray relevant. She picks twelve (a symbolic number), but basically hard to find many more women (especially since a few others pop up while discussing them) who get more than a passing reference.

The author is a professor at a religious college (she also co-authored a book on the origins of Satan, which Elaine Pagels also wrote about). The book itself is basically historical though does not challenge the basic material covered. The chapters discuss the women and then have an "enduring lessons" section for discussion and contemplation.

I think some of the enduring lessons assume stuff from limited information. Overall, however, the book is interesting and puts forth reasonable arguments.  She notes at one point there are five versions of what a reference to "siblings" means when used for Jesus, the reference is only an issue because of Catholic Virgin Mary concerns.  She later (without saying why) says the stepsiblings option is the most likely. I don't think so.  

The author argues (she said she changed her mind on the matter) that Pilate's wife actually was against Jesus when she sent a note to her husband that she had a dream about Jesus.  The basic idea was that she was saying Jesus was a true believer and implicitly that Pilate should beware.  

I guess.  The reference seems a bit too bare to tell too much. More convincing to me is the idea Mary Magdalene was an older widow, which particularly would cause less talk when she (with other women) traveled around with Jesus and his mostly masculine disciples.  The view many have is that she is a sexy younger woman. Having her more Mary's age (40s) or older would probably bother some people.  

The book provides some interesting context, including the use of non-biblical sources, to help understand the women involved.  The book is a little over two hundred pages and is padded with information surrounding the women themselves.  So, since we know basically nothing about Pilate's wife, we learn a lot about Pilate.  This is fine.  

The enduring lesson sections are a bit too drawn out at times.  Overall, I enjoyed the book.  I will check out the Old Testament version and another book she wrote about biblical literacy since both are available in libraries I have access to (if I get all three, I will get books from three systems -- NYPL, Westchester, and Manhattan College).  Enjoy the holidays!

ETA: The OT book is a bit shorter but of the same caliber.

Some Abortion Legal News

“To be clear, then,” Kavanaugh wrote in his concurring opinion, “the Court’s decision today does not outlaw abortion throughout the United States. On the contrary, the Court’s decision properly leaves the question of abortion for the people and their elected representatives in the democratic process. Through that democratic process, the people and their representatives may decide to allow or limit abortion.”

A commentary by a Supreme Court reporter notes, however, that the matter is being decided by judges. She talks about a federal judge's apparent openness (even though as a former Scalia clerk notes, the argument is specious) to outlaw the widely used abortion drug mifepristone.  

The Dobbs dissent noted (again quoting the article):

“(T)he majority’s ruling today invites a host of questions about interstate conflicts,” they said. “Can a State bar women from traveling to another State to obtain an abortion? Can a State prohibit advertising out-of-state abortions or helping women get to out-of-state providers? Can a State interfere with the mailing of drugs used for medication abortions? The Constitution protects travel and speech and interstate commerce, so today’s ruling will give rise to a host of new constitutional questions. Far from removing the Court from the abortion issue, the majority puts the Court at the center of the coming ‘interjurisdictional abortion wars.’”

The Vox author found an interesting federal appeals case from 1915, which said a "reasonable" application of the Comstock Act was to leave open advertising of abortions necessary for saving a woman's life.  We even have this letter cited:

Dr. T. Robinson Bours, 403-404 Merrill Bldg., Milwaukee, Wis. — My Dear Doctor: I am at a loss as to begin to tell you my troubles. I am about worried to death of the recent discovery of the condition of my only daughter. The dear girl has had the misfortune to repose to implicated confidence of a man who took advantage of her innocence and tried to ruin her, and now that she is in a family way the hound has deserted her. We are willing to make any sacrifice to preserve her good name and reputation. Will you take the girl and relieve her of her disgrace so she can once more face the world. How long would she have to remain there before it would be safe to’ move her? And what would the cost of the operation be, as well as all other charges? Please answer soon.

The doctor carefully responded that he would have to examine the girl first to see what medical procedure was appropriate.  The fact that the laws and constitutions in place provide a "life" or "health" exception to abortion bans is already arising in state litigation.  Kavanaugh might find this acceptable, but it still is not quite the same as "democracy" in its pure form.  

(I'm fine as a general rule to let states have wide discretion. I think the Supreme Court micromanages too much at times. But, there are basic national rights.  The right to choose an abortion is one such right.  Melissa Murray and Kate Shaw have an article pending on the dubious appeal to "democracy.")

One such life/health exception case arose in North Dakota, which also had some interesting material on "originalism" and so forth. The Supreme Court defined "health" broadly once upon a time (see the Roe v. Wade companion case, Doe v. Bolton), and it might be rightly said that the definition would cover basically all abortions likely to arise. This might bother some people but we follow that rule for a range of medical procedures.

The North Dakota decision is probably not applying the rules that broadly.  Nonetheless, as seen in a case just brought in Texas, it still does not cover merely trivial ground.  If something like 800K abortions occur a year, something like the ballpark I saw recently, many will involve people with special conditions that in some fashion can fall into that category.  

I caught an interesting bit in the ruling that underlines the "it's obviously abortion, you phony hypocrite" talk about the recent Duggar matter that should be carefully handled.  The opinion noted that among other things "abortion" is not an act to "remove a dead, unborn child who died as a result of a spontaneous miscarriage, an accidental trauma."  It sounds like from the coverage that Duggar's procedure involved the removal of an already dead fetus. The use of "unborn child" is notable too.  

The abortion drug decision is pending. 

==

Vice President Kamala Harris was on Colbert this week. She was her usual cheery self at times.  She also included a statement supporting abortion rights.  She noted that some proposed laws had no exceptions for rape or incest.  She has regularly been the face of the Biden Administration on this issue, including this statement at a recent event:

Let them make that decision if they choose with their priest, with their pastor, with their rabbi, with whomever.  But the government should not be telling her what to do with her own body.

At times, you see reports of whispering that people have issues with how Harris is running the show.  I don't know if there is even a germ of truth in that.  I do know the Democrats have had a much better run with vice presidents even back in the 1950s.  I grant Ford (and his v.p.) were okay as was Bush.  

Still, a lot of tools from Nixon on.  

Couple Books

Hani and Ishu’s Guide to Fake Dating by Adiba Jaigirdar is a "fake dating" book, which those who are knowledgeable about the lingo is a category of romance novels.*  

The book actually takes place in Ireland, which doesn't really change things much though there is some lingo (like "head girl") that is specific to the setting.  More importantly, "Hani" is Muslim, and the characters are Bengali.  So, we have a lot of cultural references, which could have been more easily understood with a glossary.  There are also a few foreign language bits. Again, not translated for the rest of us.  This sort of thing is annoying.  The book is surely not just for a narrow audience who is familiar with these things.  

Okay. What about the book?  I liked the book as a whole.  From the book jacket and such, I got the idea Hani (the two names are nicknames; names are one good subject referenced; the book also has a lot of family stuff) alone was hiding that she actually liked Ishu (to be clear, both are girls).  

But it turns out -- earlier than I thought it would be -- both really like each other. And, after a while, it was like -- okay. Come on.  You like each other.  It's damn obvious!  So, I think that dragged out too long.  Other than that, I think the book balanced a lot of stuff pretty well.  I speak of family, culture, religion, same-sex relationships, and more.  

The two leads are good characters, and their relationship is very cute.  It's an example of how young adult books can be appreciated by adults.  Again, I think it was drawn out too long, so that bothered me somewhat.  Still, I read the whole thing, which is harder for me these days in general.  So, that's a plus on that side.  I do wish she included a glossary.

==

Like the menstruation book, but more so, Wildlife as Property Owners: A New Conception of Animal Rights by Karen Bradshaw is worthwhile without being something great for reading straight thru unless you are a bit of a specialist about such things.  It is not long -- around one hundred and fifty pages -- so it isn't that hard to actually basically read the whole thing. 

The book argues that we should give wildlife, and long term probably nature as a whole, property rights. She quite convincingly argues that wildlife always had a form of property rights, both as a matter of natural law, custom, and in various ways written law.  

(She cites a law article about giving trees standing, but for some reason doesn't reference Sierra Club v. Morton, where Justice Douglas famously talked about it too.)

Property ownership, she notes, involves various things: acquisition, exclusion, boundary marking, dispute resolution, and property transfers are all done in various ways by non-human animals.  Two things not done by non-human animals would be third-party enforcement and alienation (giving up control).  A key part of the book is the first: trustees for wildlife.

The nature of animals here shows a "natural right" to animal property can be cited. This right is also recognized by custom, including Native Americans, which also is reflected in some of their own constitutions.  

Law over the centuries also recognized some rights for animals, including being able to travel over private lands and protecting their rights in various cases.  Environmental protection laws exist. Finally, protection of federal land (one reference is that the feds control about a 1/3 of the land) in practice includes protecting property rights for animals.  

The book goes into the details here and the weeds started to make my eyes glaze over a bit.  Still, skimming through the material, it was good stuff.  I can see the basics being able to summarize in a relatively short law review-type article.  

(The natural property rights of animals chapter was the most interesting to me.)

Finally, the book does not focus on animal rights vs. welfare on an individual level like someone like Peter Singer.  She argues that property rights can be a useful approach since the law already is in place and can be adapted.  This makes it more likely that it can be put in place.  

The concept of the book turns out not to be that revolutionary at all.  It requires some new policies, including setting up trusteeships.  It would require tweaking standing rules, which would be within the parameters allowed. We need to determine how to best address the needs of animals (and nature), which can conflict. Okay. So, we take a complete "ecosystem" approach.  Still requires some subjective policy decisions. 

The end conclusion I have is that her approach still is quite possible. It is again working off what is taking place in various ways already.  That is usually a common way to bring forth change.  

---

* I arbitrarily, though my editor removed referencing that, picked the top ten romantic comedy novels and somewhat arbitrarily included this one, since I saw it at a local library. It also allowed me to toss in a young adult book.

Sunday Odds and Ends

Ischia Bravo ran for city council (NYC) but did not win. I was given a colorful campaign card because at the time the early voting location near me was in her desired district (I assume).  A small version of this:

She has become the first Latina Bronx city clerk.  Sounds like she has a good sense of what is involved:

“People come to the get passports, naturalization paperwork, applying to be a notary, getting documents, notarized records,” said Bravo. “It creates awareness around participation.”

I went there myself to get my notary certification renewed. I did send a money order earlier but it got lost in the mail.  Charming.  

===

Film/TV

The Academy Awards are on now.  I checked the nominees and basically have no desire to watch any of the films.  

The Hallmark Channel movie starred a familiar face (Kimberley Sustad) but did not recognize the others.  Game of Love is about two game creators tasked to develop a game about love.  I liked it.  These things for me often are about pace and I liked how things were handled.  Actors were also good. 

The necessary complication felt a bit tacked on (and came late) but we got past it fast.  I can do without it -- oh look, she has moved on to someone who trusts her team but now second guesses herself & has an emotional moment -- but I assume it's in some "how to write a Hallmark movie" that such a scene has to be in there somehow.  It was relatively painless here.

I also saw another episode of East New York.  I saw a few episodes and found it pretty good.  Multiple familiar faces among the regulars and guest stars.  Oh look, it's the guy from Gilmore Girls and tonight we had Debi Mazar.  Nothing profound, but even time-passing series are something for me these days.  I still like The Way Home as well.  

===

"Spring forward" started at 2 A.M. today so it's really an hour earlier.  The whole thing seems a bit stupid.  But, with it the rules for so long, that's something you say, it happens, and you move on.  If ends, though, doubt it will matter much.  

===

Baseball

It is also time for the World Baseball Classic, the true "world series" of baseball.  The rules for national teams are somewhat loose but we still have a lot of minor league type players on a lot of teams.  Still, they sometimes play each other, and there is enough talent for some good games.  

I think the WBC is a good idea.  We have a Nicaragua team today playing an Israeli team.  Team Italy advanced to the second round.  Only caught some of the game, but something different. 

Baseball is promoted worldwide.  Somewhat related, the new schedule has teams play each other interleague.  All of them, not just one division (AL East, etc.)  each season.  The loss to divisional play isn't much -- sounds like four fewer games for each team.  No DH, players moving around, limited interleague play ... well, why not go all the way?  

The time rules are not in the WBC and I don't really see much difference. Maybe, they will help.  The countdown clock is a bit annoying.  Makes things feel rushed.  One thing that came to mind there was the throws over the first.  They are cut down.  They actually can get annoying. Even so. How often is that really a thing?  Oh well. Let's see how it goes. 

Menstruation Matters: Challenging the Law's Silence on Periods

A documentary about periods won an Academy Award. So, the issue has received some attention.  

But, menstruation* is still an under-explored area of law.  Two woman law professors, who teach at the same school, try to fill in the gaps with Menstruation Matters: Challenging the Law's Silence on Periods.

I have earlier reviewed Skimmed: Breastfeeding, Race, and Injustice, which handles breastfeeding.  Menstruation is another matter of gender equality with a range of issues involved, including industry, law, and a lot of stereotypes mixed with shame and ignorance.  

I started this book but about a third through began to skim.  There are some interesting details.  One argument is that taxing menstrual products is a form of sex discrimination.  Menustraton also raises constitutional issues in places like prisons and is a source of equity in workplaces and schools.  

Stopping taxation of menstrual products (while some other comparable products, as well as a range of luxuries, are exempt) has a symbolic value, including showing they are necessities.  I think the expense (dollars a year) is a lot more trivial.  

Menstrual products are starting to be provided for free (such as in New York City schools) and education can address a lot of stigmas. The book also addresses such issues as the environment, privacy concerns of things like menstrual apps, the mixed record of the industry, and experience in other countries. 

A good scene of the teen show Degrassi High showed a character helping a fellow student when she had her period and a potentially embarrassing event took place.  Entertainment provides an important function here.  

Menstruation is a complex subject that has a lot of moving parts and is an important part of our culture.  This book is a helpful examination of the many legal questions that arise.   

---

*  Call Jane, the film about the underground abortion service, had a good scene where a character explained the basics of female sexual anatomy.  

The character first had a mother of a daughter do it, but she had trouble.  In fact, a thing done by some consciousness-raising groups was famously to have a woman use a handheld mirror to get familiar with their pelvic area.  

The link provides the basics of menstruation, which many girls and women probably do not know.  I think it might have been helpful for the book to briefly discuss the process.  It probably would help further discussion of the legal issues too.  

Legal understandings regularly involve getting a general sense of what is being regulated.  

SCOTUS Watch: Another Execution etc.

Two Executions 

Texas executed two people this week who were mentally ill.  Gary Green murdered his wife and her daughter (age six), the sons (9 and 12) convincing him not to kill them. He reportedly tried to commit suicide.  One story tells us:

Green was prescribed medication for schizophrenia and depression after a four-day stay at a psychiatric hospital just a month before the murders, but could not afford to continue taking it, the Observer reported, citing a memo from Mowla.

In March 2022, SCOTUS denied Gary Green's petition asking it to review claims that he was visibly shackled in front of the jury during the penalty phase of the trial.  His lawyers did not try any last-minute appeals.  

He was executed earlier this week. 

Arthur Brown's road to the death chamber was much longer. His lawyers also tried a last-minute appeal raising intellectual disability claims.  This included a procedural claim that he didn't even get to make his case.  There were also other concerns:

Arthur Brown Jr. has been sitting on death row since 1994. He was convicted based on bad forensics and potentially flawed eyewitness accounts, which newly discovered evidence long suppressed by the Harris County District Attorney’s Office calls into question. 

As Justice Breyer noted in Glossip v. Gross, being on death row for nearly thirty years alone is problematic.  Two more dubious executions. One more case where not a single justice (including Jackson, who recently had a street named after her) said a word.  

Technically, no justice voted on the record, so we only know there was a majority (one supposes five, but technically only six justices are needed for a quorum, so why not four?) supporting the denial. 

We are supposed to say that we don't know if anyone dissented.  Silence doesn't technically mean consent and in the past justices have opposed things without doing so publicly.  That is a bit weak and even reporters (like Kimberly Robinson) have been known to not buy into it.  

Like bland references to a "short order" that is just a pro forma denial with no content, I'm not big on this "no one knows bit."  So, I am glad that Amy Howe framed it this way:

If any of the justices dissented from the denial of Brown’s plea for a stay of his execution, they did not note their disagreement publicly.

Anyway, he too was executed. Texas has another execution scheduled later this month.  Expect more silence then too.  

===

Odds and Ends 

I regularly check the Supreme Court website to see if there are any updates.  Someone looking closely at the opinion page will note that (long before it usually happens) the slip opinions for this term have already been started to be put in a preliminary version of the bound reports.  

There will be a conference next week as well as a special event to honor Justice Ruth Bader Ginsberg. Maybe, the person she hoped on her deathbed would never replace her will say a few words.  

===

Quid Pro Quo

Another reported matter is that the Supreme Court has asked for additional money, highlighting the need for more security resources. As with a recent law protecting the privacy of family members, I do not begrudge such things.  There were serious issues, including federal judges or their families being threatened or even murdered.  

But, it offers an opening to provide strings. The primary one that comes to mind is an ethics code.  The ethics problems are glaring and it is a valid quid pro quo.  There is just so much you can do -- investigations come to mind -- besides confirming a lot of lower court judges. If they want more money, fine, accept strings. 

I would toss in more probably, including more openness such as audio and video (at least for non-argument procedures like opinion announcements).  Ethics is a minimum.  

Manhattan Thinks About Prosecuting Trump

The Manhattan D.A. has received strong criticism for apparently deciding not to prosecute Donald Trump for business-related issues.  Will he find a way to relieve the pressure? 

I don't claim to know the intricacies here, but people in the D.A.'s own office strongly opposed his decision. There is a basic strong feeling, that to me more than "wanting justice meted out and thirsting for prosecutorial schadenfreude" that is "gross," to cite usually on the ball Anthony Michael Kreis.  His company was prosecuted.  His lawyer and a top member of the company were as well.  Trump is free and clear?  

Back in 2018, Rick Hasen -- the election law guy -- wrote how Trump's lawyer being prosecuted directly put him in the crosshairs.  Of course, the fact Trump actually is guilty of things does not actually seem to matter. There is always a reason somehow for him to "face no penalty," including in two impeachment trials. 

But, see that link for the clear path to showing the Stormy Daniels matter violated both the law and campaign finance laws.  Kreis on Twitter said it was a major "reach" to use it as the Manhattan prosecutor is reportedly in the process of doing.  I will not put much stock on yet another "we go him!" sort of thing, but I put more stock in the overall matter. 

At this point, the charges related to election subversion that may be brought in Georgia or by DOJ seem much more serious and important.

That's fine, and I agree with Rick Hasen on that too.  But, that doesn't mean the proposed felony charge lacks grounds or reason.  The NYT article cited implies it is a reach.  Who knows.  Maybe, it will be deemed one in part via a form of the qualified immunity business where something is obviously bad but since it's novel (in part since no one actually did something so bad, so there is no case law on it), there is legal immunity.  

I still do not think it is a reach.  I am pretty sure that there is evidence that Trump violated some minor law (his professional life has been bending the rules, breaking them from time to time along the way) during his Stormy Daniels scheme.  The fact he keeps on getting away with doing this, other than some financial liability from time to time, is not a grand reason for him yet again to do so now.  Cohen was imprisoned!

Rick Hasen almost five years ago (well, August 2018) explained how it was clearly part of a means to hide information for campaign reasons.  Trump might have been just usually his usual technique, but he was running for office.  It was therefore campaign-related.  I realize Cohen was prosecuted for federal crimes.  But, the overall scheme is relevant here.  It is not some big major reach that in the process it makes it a state felony.

The ultimate penalty for this "minor" felony (a felony was traditionally deemed an "infamous" crime, but now there are felonies deemed trivial, one supposes) might only be a few years. 

Still, the overall principle matters.  First, campaign finance integrity is a very important reform in recent years.  Multiple government officials and those running for office (the latest one George Santos) have been caught in this vortex.  There have been some serious efforts -- admittedly threatened repeatedly by the Supreme Court -- to address this issue. IT MATTERS. 

Second, Trump using sleazy cover-up methods to avoid problems for his sexual sleaziness flags a key concern regarding his campaign.  Lots of people were disgusted.  Now, some just swallowed and lived with it.  Still, as with the "grab their pussy" stuff, this was a serious matter that flagged how unfit he was.  There was a continual "oh we got him!" feeling that THIS sort of thing surely would deny him the presidency. Oh well.

It still matters.  It underlines the importance of his breaking the law -- if that is what he did -- to cover up his sexual activities.  The Stormy Daniels relationship was voluntary but he did his usual bend/violate the rules (including laws) bit in the process. Michael Cohen was imprisoned.  And, the same overall mentality led Trump to abuse women. Since he kept on fucking getting away with it.  So, no, I don't see this as merely trivial.

(ETA: See also, this Washington Post analysis that puts things in the context of the campaign. There is a somewhat less "people say this is a stretch" quality there as compared to the NYT.  

How much the moment in question would have mattered if other things -- as they tend to do, yes, but not quite this way -- didn't pop up is unclear.  But, it was clearly a campaign matter.  The report notes that the exact nature of the proposed indictment is unclear.) 

OTHER PEOPLE get harmed when they break the rules, including a young congresswoman who was flagged by Nancy Pelosi at the time as a rising star.  The case there largely was upsetting since it involved consensual activity, if at times some bad judgment, but I did see some evidence of violating ethics rules involving people she was involved in professionally. 

Georgia and the feds can continue their investigations and prosecutions. Manhattan can still prosecute Trump a more minor case that is a "sideshow" (to quote me elsewhere) only in degree.  The Stormy Daniels Affair (in a legal sense of the word) is a symbol of sorts that reminds us of what sort of person Trump is.  This includes someone who people always find a reason to oh so reasonably find grounds to get off the hook.  

Convict Trump in an impeachment trial? Oh no.  But, we aren't getting him off the hook!  No no.  Let's have a special 9/11 type ... oh wait, you are doing it the wrong way.  Criminal prosecution (since we can't do it while he is in office ... oh now he's running for office) ... no, there is a problem with how you are doing it.  No, this is too trivial.  And, on and on.  

It's gross.  

===

ETA: I'm going to tack on an aside.  Senator Mitch McConnell got hurt in a fall.  Jenna Ellis, Trump's former lawyer who just settled as part of a censure agreement for spreading election lies, for some reason posted a video of a turtle (get it?) falling as a joke.   

As cited by the headline ("cruel"), I saw more than one liberal-leaning source (including the guy behind Talking Points Memo) singling this out as distasteful.  You know, calm down.  Ellis is not someone many will feel sorry for, but a negative tweet I saw also suggests someone at Stephanie Miller's show also made a joke about him.   

Reports are he is okay.  The joke is infantile, but since he's okay, that is basically what it is.  There have been many more nasty things out there so this seemed to be a bit of virtue signaling.  McConnell has caused a lot of harm and some people are a bit mean here.  Okay.

I'm more concerned about other things myself.  I don't like the whole "punch a Nazi" thing where some actual Nazi being punched in public was cheered on.  Inciting violence might not be applied "reasonably" there, any more than harassing public figures in public places.  I also do not like the ridicule of religion I sometimes see, such as sneering about magical crackers (Holy Eucharist) or something in one case.  

The turtle thing was petty and singing out it seemed as much about sneering at Jenna Ellis as anything else.  

Back in Crime

The French title translates as "The Other Life of Richard Kemp" but "Back in Crime" is a nifty title too. 

I recently liked Mélanie Thierry (well at least for 90 or so minutes) in a historical film, so saw what other films the library had.  This was about the right length (around 100 minutes) and overall was well-paced and acted.  Crime plus time travel plus a bit of love.

The time travel confusion started to get a bit much by the end, but not too much that it ruined the whole experience.  After multiple false starts, I finally watched the full DVD.  I also read the original Gidget, which was a bit strange since it had some personal stuff (like breast size) in the voice of a girl while actually being written by the girl's father.  

The father also helped write a book in the voices of his brother and sister-in-law (they are listed as authors "with" him).  There were three brothers, all of whom got out of Europe before the Nazis came for them.  Walter fell in love but she could not escape.  Hanna did survive and there was a happy ending for them. Not so for many others in Hanna's story.  

The book is a straightforward but powerful tale that provides a striking view of what ordinary people went thru and in some cases survived.  Both books together make an interesting set.

SCOTUS Watch: Orders

The "independent legislature doctrine" is stupid and liable to be a dangerous loaded gun. The case taken might have been the best possible one since the facts are so bad. So, it very well might not be a good thing that changing state developments might require disposing of the case. For now, SCOTUS wants more briefing.

SCOTUS might drop miscellaneous orders, but today's Order List is the last scheduled thing until the end of next week. The month will then end with two weeks of oral arguments and maybe more opinions.  The Order List was as expected not too notable, even if they granted one case for review about federal admiralty law.  

The order list was a bit long though and figured there was a reason.  And, yes, Gorsuch (statement) and Thomas (full dissent) did submit comments against "offended observer" (they should know though it's sad Alito didn't join in) standing in Establishment Clause cases. In the typical case, there is some holiday display, which endorsed religion in some fashions. The state of the Establishment Clause doctrine makes such things more and more academic.  

The case at issue here -- which even Gorsuch admitted isn't ripe for review (not that it stops Gorsuch and Thomas in other cases) -- is somewhat atypical. You can read the other side's (Freedom From Religious Foundation) take too.  A local government directly endorsed a religious event that was a response to a tragedy.  

The justices show empathy (it's okay; like packing the courts, empathy is okay when conservatives do it in this context) on the use of religion to address a tragic event.  But, the constitutional rule here is not only going to arise in that situation.  These cases repeatedly also turn on facts. So, if this was just a public event -- where religious leaders are but one participant -- it might be okay.  As noted in the FFRF memorandum, the situation has specific aspects that are concerning.  

The immediate issue is the use of the federal courts to address injuries that or emotional and psychological in nature.  It might be best to avoid doing that in various cases, but this is the same Supreme Court (8-1 with merely Roberts dissenting) upholding the right to allow standing with token monetary (even $1) injuries.  

Violations of the Establishment Clause will repeatedly not result in economic injury.  There should be a way to allow lawsuits in such cases though again if possible I would use state courts.  Gorsuch and Thomas, however, are not great prophets for consistently strict standing rules.  They are good at being outraged.  

Final tidbit: Thomas noting he dissented in one case "decades ago" was just a tad depressing.  

Meanwhile, I'm annoyed SCOTUSBlog did not have an article covering Justice Jackson's first opinion for the Court. It was (as usual for such an opener) a mundane case overall. But, it is a bit of an "event," and a SCOTUS blog should have immediately covered it.