SCOTUS Watch: The "FU" Day

It is often a troubling thing in some fashion when I see a strong Roberts Court opponent feel optimistic. But, there have been numerous lower court opinions defending the rights of GLBTQ people. Anti-trans laws in particular have been so blatantly wrong that you almost figured the legislators didn't think they would survive review.

I am pissed off but will grant there is room for optimism.  On some level, you have to grant it.  Two reasons.  First, it is a survival mechanism to not just look at the bad side.  Second, there is a standard rule that few things are all/nothing.  A person being executed will be quite final.  But, completely bad is hard to come by.  We even survived four years of Trump.

The Supreme Court this term has repeatedly restrained itself.  The reasons can be proposed. It might be a Roberts Court "picking your spots" and "playing the long game."  The "wins" can even be long-term not so great for the winners ("wins" here being for liberals and/or sanity).   It might be that the advocates are pushing for the fences too much.  It might be some wariness about the criticism.  It can be a range of things.  

This is not to say that the Court is suddenly fine.  Alito and Thomas showed themselves to be ethically tainted and Roberts showed himself unwilling to do basic things to restrain them or reassure the public on the integrity of the Court.  Assurances lead to what?  Only Kagan even deigned to attach explanations for recusal.  Thomas and Alito could not even release their financial disclosures on time.  Yes, mild credit that the rest did so, and we got a bit more clarity on things.  

We also apparently didn't just make Alito upset.  Roberts in his student loans opinion tossed in this:

It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary. 

By the way, this is a bit rich coming from the conservatives. They regularly strongly dispute that such and such is something that the judiciary is supposed to be doing.  They have every justification for thinking that. There are different ways for courts to be wrong. They can be wrong on the merits and for broader reasons.  That is, trying to even decide things they do not have the power to do.  This is a basic dispute. 

So, what is the issue?  A bit sensitive, are we?  Roberts for Court also tosses this bit in, pressuring Kagan to grant the point:

We do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception such misperception would be harmful to this institution and our country.

This is in an opinion that on bullshit grounds stripped President Biden of the power (at least in a certain fashion) to forgive student debt. Kagan for the liberals argues that:

In every respect, the Court today exceeds its proper, limited role in our Nation’s governance.

Now, it is unclear how much non-disparagement is going on here. What does that word mean?  I think the assumption here is that the dissent is basically not (to quote Kagan) making it "personal."  Some of the Thomas vs. Jackson stuff in the affirmative action case or the "head in the bag" dig by Scalia in the same-sex marriage case sounds a tad bit personal.  

The word also means "of little worth."  I think Kagan's dissent does some disparaging of the worth of the majority's argument.  Still, she has to reassure the abuser here that they are reasonable sorts.  Nothing personal, John!  See?  I said "respectively" dissent!  There is a certain degree of unease in this whole affair.  This is to reassure someone who compared Biden's use of power to the French Revolution.  

[A curious aside.  Alito had one more opinion, a short one to unanimously toss one of the student debt cases on standing grounds. It is a sort of little extra bit you toss to the junior partner.  It is just one final example of his overall basic absence this term for whatever reason.]

Talking "disparagement," Sotomayor for the liberals didn't toss in a "respectfully" in her dissent in the wedding website case. The basic aspect of this case -- which the dissent for whatever reason didn't actually emphasize much at all -- is the whole thing is a sham. More evidence of that came out recently.  To quote Kagan again:

It blows through a constitutional guardrail intended to keep courts acting like courts. 

Sotomayor -- including in an extended dissent from the bench we are not allowed to listen to unless we are one of the handful who is there -- emphasized the harm to the GLBTQ community:

LGBT people have existed for all of human history. And as sure as they have existed, others have sought to deny their existence, and to exclude them from public life. Those who would subordinate LGBT people have often done so with the backing of law. For most of American history, there were laws criminalizing same-sex intimacy. 

As Prof. Anthony Michael Kreis (who recently celebrated New Hampshire legislation to ban gay and trans panic defenses) noted:

There is no limiting principle in 303 Creative. Any service that has a remotely expressive component can result in a denial of service under anti-discrimination laws. Nobody is safe from bigotry in the public square.

My assuring thought (not that I am actually in any really affected) was that the opinion would cover limited ground.  As he notes:

If courts could be trusted to be exacting in their review and restrained in determining what public accommodations have an expressive component and those that do not, the decision in 303 Creative might be met with a collective shrug-but therein lies the deep and worrying danger.

This is suggestive of why Sotomayor's dissent is so strong.  The criticism often tosses an emphasis on how the people here are "Christians," which is again a rather depressing unfair burden to many Christians who do not agree with this result.  Many do not feel the need to target gay people.  

They also realize that if they serve the "public," well, they might be required to serve all comers. This is apparent even to many "conservative Christians" though that label is more accurate.  Also, the rule here is not just limited to them though yes they have a lot of power in the current environment in various respects.  

One more comment from the law professor who often is fun on Twitter:

One unfortunate downside of today's decision is that there will be much greater emphasis on civil rights boycotts and protests of businesses. The anti-cancel culture crowd, by chipping away at public accommodation anti-discrimination law, will fuel the social dynamic they decry.

There will be a lot more litigation to clarify what this case means. The case again is a sham case. The Supreme Court received thousands of requests for action and handed down under sixty full opinions. To use this barely there case with its law school hypo question and not provide much clarity on much more including what "speech" truly entails and a lot more is so much bullshit.  It is a rank abuse of its power for policy preference. 

---

Today's the last day before the summer recess though as Steve Vladeck emphasizes in his new book they still are technically in session for the 2022 Term until the first Monday in October.  The summer recess might start at noon but keep that in mind. Three summer order lists are usually scheduled.  And, then there will be odds and ends.  

We have a "clean-up" order list, including a chance for some justices to say stuff.  A few cases are granted for full argument, including one involving the right of those under a restraining order to have a firearm.  

These "clean-up" orders provide some behind-the-scenes tidbits. Sotomayor has a statement, for instance, flagging a concern. Other conservatives feel a need to respond to emphasize that she grants the matter is not ripe for review.  Alito is all Alito ("This Court does not lobby government entities to make preferred policy decisions") in a counterproductive fashion.  Okay, so you do, right?

Sotomayor has a tradition of flagging criminal cases that she feels are troubling, at times full dissents, and other times statements of concern that explain why she agrees with the denial but still is concerned.  She used to do this at times for last-minute death penalty litigation but that seems to have stopped.  She also has again taken on qualified immunity, which the Supreme Court seems to have left to Congress to handle after rejecting multiple cases a term or two ago to take it up.  

Jackson (with Sotomayor) dissents from not taking a case involving Mississippi maintaining a Jim Crow regime that strips voting rights for those who commit certain crimes.  Felony disenfranchisement was flagged as a problem in 2000.  Many states have thankfully addressed the issue in various ways.  The people of Florida were more recently blocked by a Republican-backed workaround to limit a ballot measure involving those with lingering fines.  There is a lot more to do.

To quote Amy Howe on Twitter, one more notable bit: 

SCOTUS denies review in Kincaid v. Williams, involving whether the Americans with Disabilities Act covers gender dysphoria. Alito (joined by Thomas) dissents from the denial of review, calling it a "question of great national importance that calls out for prompt review."

I am wary of when this Court will have to directly handle GLBTQ issues again.  Roberts also announced a few court personnel retirements.  I believe at least three members of the Court should retire.  President Biden in an answer to a question on the affirmative action opinion noted that this is not a "normal court" but in an interview feared talk of expansion would politicize it.  That bit got the appropriate degree of ridicule.  

==

What's next?  Well, a couple executions are due in a month or so. Sen. Durbin assured us that ethics legislation will be the focus after the July 4th holidays.  I foresee that being filibustered when it gets to the floor.  To be continued, including Biden's workarounds.  Keep on confirming judges!

Jesus, Interrupted

I recently re-read Jesus, Interrupted by Bart Ehrman. The book is a useful summary of the subjects he covers in various books. 

You can read about the changing developments of Christianity, the changing of many verses in the copying, how you can have faith while still realizing the Bible is not inerrant, etc. in more detail in other works.  This book is a good one-volume summary along with his New Testament textbook (which I bought used).  

I also liked his note about how interpretation is not just some objective exercise. We are humans, not robots. This applies to other texts, including the U.S. Constitution.  He had an end note regarding this twice, including:

Of course when trying to understand these different points of views we need to engage in the work of interpretation. Contrary to what some people assume, texts don't speak for themselves. They must be interpreted. And this can never be done "objectively," as if we, the readers, were robots; texts are interpreted subjectively by human.

Prof. Eric Segall seems to think his comment that "values" are involved (significantly so) in legal interpretation is news.  It isn't.  

It is also not "values all the way down."  There are general rules, in both biblical analysis (Ehrman notes that a range of religious scholars will find his main points far from controversial) and legal analysis.  This still leads to a lot of significant room for dispute.  

==

The Supreme Court handled three cases (four if you count the affirmative action cases separately) today.  Alito dealt with a trademark case that was unanimous though it split them some on reasoning.  He also had a religious employee accommodation case.  It was also unanimous.  

A 1970s case (by Justice White, not a strong separatist) allowed an arguably trivial burden to others to make accommodations not allowed.  The case was not overruled but clarified to not be so strict, at least possibly so.  The government (the case involved a postal employee) didn't really disagree.  How much this will change things will be determined.  

Alito therefore curiously was somewhat absent this term, even dissenting somewhat quietly in multiple cases.  The other case was the affirmative action matter.  Over two hundred pages of opinions, including dissent from both Sotomayor (70 pages) and Jackson (30, but over 100 footnotes), each joined by Kagan.  Thomas, Gorsuch, and Kavanaugh (another brief "I'm reasonable" job) concurred.   Expected loss. 

The thing is that (and a few liberal-leaning law types have already suggested this) it is unclear how much the case was aside from all the noise.  Roberts noted military academies might have other concerns, so left them open for now.  And, it is not that race could never be used, especially indirectly.  Colleges will find ways to do it.  It will be harder and more litigation will follow.

The majority's noise will likely cause some problems, especially as a way to help the "anti-woke" brigade somehow.  But, in hard results, this is in no way as horrible as the abortion and gun rights cases of last term.  How much this is true will be disputed.  Clear enough there is a lot of bullshit.

And, damn, it would have been nice to hear the opinion announcements (multiple justices said their piece in the affirmative action cases) and saw them as well.  We shouldn't have to rely on reporting for things like this:

Justice Jackson stared straight ahead and seemed "visibly angry" as Justice Thomas read from his concurring opinion in the affirmative action cases, according to eyewitness @GaryGrumbach

— Lawrence Hurley (@lawrencehurley) June 29, 2023

Anyway, almost done. 

ETA: As to the employee case, I saw even a lawyer involved with the Freedom From Religion Foundation (Andrew Seidel) on Twitter say the ruling did not really do much.  

Again, to be determined, and there are multiple cases this term that might later on turn out to be worse than they first seem.  He's just one person, but that is a notable one!

A lot more can be said about the affirmative action cases, but I'll just toss in that Gorsuch's concurrence emphasized (in his "it's so obvious" fashion) how the text of the civil rights law made race-based affirmative action a problem.  

This is far from clear, especially given how Congress basically accepted Bakke saying otherwise.  Prof. Victoria Nourse's argument about this post-passage gloss matter holds for me, especially since Congress actually used to be actively passing new law when it felt the Supreme Court got it wrong in the civil rights area.  

The dissents show that both the text (especially of the Fourteenth Amendment) and history can quite easily be applied in a liberal way. This is a common thing and it looks like Justice Jackson will be doing it a lot in the years to come.  

Primary Day

The GM blathered some and the owner is scheduled to talk today. Meanwhile, David Peterson (after battling but not breaking during the first inning), actually had a good game. 

And, so did the Mets. They had good games before amid this extended horrible stretch. And, the Brewers are just a mediocre team. So, don't be too excited. But, it's nice when it happens.

===

Tuesday was primary day and I am an "inspector" (I'm at the table to check in voters) from 5 A.M. to 9:30 PM or so (polls are open 6-9, and the rest is set up and clean up).  I didn't see the game though checked in a bit as I did with the morning Supreme Court opinion announcements.  

The New York Daily News summary is here with some discussion of races in my own area. The city council offices are term-limited and now shorter.  Overall, there will be some turnover, and it appears at least a couple more Republicans (still very much a minority in the city council).  And, the winners of all the races won't be immediately known.  That is a general lesson in recent years, most noticeably in the 2020 presidential elections and the Georgia senate races with significant effects on the Senate.  

Early voting (6/17-6/25) and the usual low turnout of primary elections, especially in a non-presidential year (even then, the race is generally settled before NY) or congressional primary (the AOC race was low turnout) meant not too many voters showed up.  I would say around 70 in total.

The election in my district chose city council members (there were Republican and conservative choices though [1] I know of none of the latter that showed up -- I know a few personally that could have if they wanted to do so, except maybe one who said he was conservative and wasn't actually labeled as such, so voted absentee [2] the three candidates on the separate conservative line [the first time since 2019 that I know of there being one for a primary] were all also running Republican. 

A primary election keeps local people honest and now and then (AOC!) there is an upset.  My city councilwoman received about sixty-five percent of the vote when I checked the results last night. The opponent that received the most votes received about 25%.  Now, this was a ranked choice affair [we gave voters an instruction card though a few were still confused], so, in the end, the other candidates were eliminated.  So, this is the "first round."

The Republican and conservative races (three candidates) were closer with two candidates splitting the votes (last night, one was winning the Republican line while the other -- with a few hundred votes total all around -- of the two slightly winning the conservative) with a third (who a co-worker noted was an extreme sort, including being a vaccine truther) coming up behind.  As one voter noted, it's nice for the other party to have a chance.  And, though the person is not likely to win, my area does have some conservative-leaning voters -- back in the day, Republicans won.

The rather historical moment this time is that Yusef Salaam one of the so-called "Central Park Five," who were wrongly charged with a heinous rape, won his race. He is a political newcomer and ran against two city council people.  So, it is pretty impressive for that reason too. Congratulations. 

There were local judicial races (which I continue to generally think is stupid, largely since basically no one knows who these people are), but none in my district.  The other race was for Bronx district attorney, which is a state office. So, no ranked choice, though there were two options. No Republican candidate either, which seems a bit of a wasted opportunity for that side to promote itself.  The challenger (who I voted for) received about a quarter of the vote.  The Queens DA also didn't have too much of a scare.

The primary system is a somewhat flawed one though ranked-choice voting helps. It would have been better if the federal race in one crowed Manhattan campaign in 2022 had it, instead of the winner being able to eke through with less than thirty percent of the vote.  Dan Goldman is doing a good job but there is a good chance that he would have been eliminated in a ranked-choice race since over 50% of his opponents were more liberal.

The low turnout is one problem. This aggravates the tendency of more ideologically stronger and at times weaker in-value candidates winning the races. So, we have two candidates in the general that the voters as a whole might not have picked otherwise.  A few states try various methods around this (including so-called "jungle primaries") that might have some merit.

Overall, primaries are a chance for voters to do their part.  It is a time to honor those who do their civil responsibilities.  And, it is appreciated that so many do show up though many more really should.  As to our polling place, after a bit of a foul-up (we had to open a bit late since tables and chairs were delayed -- only a 30m delay though), it went fine enough.  

The basic issue with working the polls is boredom.  It's a long day -- it might be better if they have two shifts but hey appreciate the full day's pay -- and there were hours when only a few voters showed up.  Still, it was okay in the end, and it moves by. I appreciate doing something where there are more things to do.  The people (this time there was one) who float around to help the voters have a lot less to do.  

I know.  I had that job once (technically, I was one of two helping with the ballot reading machine that is used mainly by those with special conditions, such as the blind, which one person used last election -- that I know of -- and that time, two did, and once there was some screw up).  There was actually a bit of a controversy about someone assigned to the machine supposedly telling a voter who wanted to use it that he didn't know how. 

This was observed by an election monitor so that wasn't ideal.  We were required to do more hands-on training with the machine this time.  Not much but maybe the people specifically given that job (though that is not all they do) are given more.  As would the supervisors.  

There is also a requirement that things are politically balanced. Each table is supposed to have a Democratic and Republican monitor. If you help a voter while they fill out a ballot, a worker of both parties is supposed to be present.  Uh-huh.  Not followed here.  This election -- as was the case in past primaries -- the tables have one election inspector. 

There is a lot of signage.  The one other thing I'll say is that I like the pens.  They also have a rubber tip -- you sign in when you come to vote, which is also a sort of fraud device since you can match signatures and it shows someone voted.  The rubber tip is used to sign in to the little election pad. the voter gets to keep the pen, which also serves as a sort of stylus.  

Supreme Court Watch: Reasonable with a Mix of Concern

The first of maybe three opinion days gave liberals some positives but a shade of concern. How much? To be determined.

The first was a splintered (including splitting the liberals) decision involving the rules of personal jurisdiction, which is an important legal matter.  Since five justices didn't agree with all of the opinion, particularly Alito leaving open some other grounds in another case, it's also not totally clear just what was decided. 2023 term avoids bigger results again.

Kagan crafted a majority in a dispute involving the rules to determine liability for "true threats."  The justices were concerned about line drawing during the oral arguments. They were here.  Sotomayor and Gorsuch thought Kagan's approach was not speech friendly enough.  Barrett and Thomas were the only ones who fully dissented.  Was too much rope given to possible online harassers.  Prof. Mary Anne Franks thinks so.  

Chief Justice Roberts had the biggest case: the "independent state legislature" case.  Three conservatives thought the case should have been deemed moot.  Roberts (in ways some who liked the results deemed iffy) found a way not to.  He also rejected the strongest form of the doctrine. State constitutions very well can determine the reach of the legislative actions in federal elections.  Good result?  

Well, there is a poison pill left in which gives federal courts more power to determine if state courts went too far.  A vague rule is raised without the matter being truly addressed: "state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”

Whatever that means.  Kavanaugh would just full blow take the Rehnquist Bush v. Gore concurrence.  What five justices would do if the matter is fully decided is unclear.  It does leave the federal courts some room for trouble.  And it is just unclear why that rule should be there.  

Religious liberty, affirmative action, and student loans still to be decided.  There will be an opinion day on Thursday.  

SCOTUS Watch: Order List

The Order List was over ten pages, which I thought might flag separate writing. There was. There were also a few other interesting developments.

A case that they already took for full argument, involving congressional oversight, was for some reason sent back to be dismissed. Justice Jackson would dismiss it as improvidentially granted.  Neither side here explained why.  Amy Howe noted in her discussion that it was voluntarily agreed by both sides that this was the right result.  Why not say so?

The docket page provides more of a hint why the case is being handled this way.  It does not explain Jackson's reasoning. People would still have to search for the docket page. The Order List provides a convenient summary.  Just toss in a sentence or two regarding the parties agreeing.  I also would appreciate a small discussion by Jackson. If a justice goes out of their way to go on the record, I rather them explain why.

They took two cases for a full review, including one involving the reach of the Sixteenth Amendment.  Still waiting for that Third Amendment case.  

A cert request from a case from back when Sotomayor was on the court of appeals was among those denied.  Sotomayor -- on the circuit court involved -- recused without saying why.  So far, only Kagan has explained why she was recused.  Alito, Jackson, and now Sotomayor have not.  

Amy Howe discussed the cert denied that Thomas (with Gorsuch and Barrett) wanted them to take involving "hypothetical jurisdiction." Thomas is concerned that taking these types of cases interfered with the proper role of the federal courts. Thomas is who I usually go to regarding proper judicial conduct.  

It is somewhat interesting that Alito didn't go along though that can be either  (1) he doesn't care (2) there is no fifth vote, so taking the case would not really help get the result he wants.  Anyway, as of this writing, there are no more days scheduled for opinions or the like except tomorrow. 

They are not going to finish tomorrow.  So, stay tuned.  Also, not too many online sources cited in the opinions so far this term.  

Vacation from Marriage

 

Robert Donat co-starred in this British WWII film (British title Perfect Strangers) that came out in 1945. I saw this on TCM (I recall seeing at least part of it but don't recall most), the classics film channel that some fear is on its last legs.

Both leads (Deborah Kerr plays his wife; her friend in service is charming too, Glynis Johns) are very good. Donat is probably best known as Mr. Chips though he was in a few other well known films, including 39 Steps. The film has a great closing line.

Reese Witherspoon Again

I recently read Reese Witherspoon introduce a series of conversations between the mother/daughter team of Diane Ladd and Laura Dern ("Dern" to Reese). I first saw Reese playing a teenager (very good) in The Man In the Moon.  Another good early film (before Legally Blonde) is Freeway, a twisted take on Little Red Riding Hood. 

She is a few years younger than me, which I did not first think about ala Christiana Applegate.  But, yes, that would work with the timing of those films.  Those two also played (in rather different performances with Applegate much more memorable though Reese was decent) Rachel's sisters in Friends. They reunited for the Apple show The Morning Show, not to be confused with the amusing film with Rachel McAdams about a morning show, entitled Morning Glory. I saw that in the movies and might have been the only one in the theater (it was a mid-afternoon mid-week show and maybe I missed someone, but it was rather empty).  

I saw this review on this blog regarding Hot Pursuit (not the 1980s John Cusack movie) recently: 

A movie to make when you have free time from making Wild etc. It is junk food but Reese Witherspoon for me really owned her character here. She made it worthwhile by herself.

Reese did have a good run around that time also playing a supporting role in the film The Good Lie, playing an interesting role as an employment counselor that helps three Sudanese refugees. I saw that on IMDB before I was signed out and could not sign back in (my old email address is defunct).  Oh well, I got my 100 reviews in.  Anyway, I asked someone what the "good lie" was and they didn't want to spoiler me.  I found out but still saw the film.  I liked it overall.  

Reese is one of those actresses who put on many hats, including being a producer, having a clothing line, and doing charity work.  Impressive since acting for over two decades is hard enough (toss in the three kids).  Well, to circle back to the reason I wrote this -- which was basically going to be a stub, but not anymore -- I did watch the film again.  

The DVD copy was only a bit glitchy, so it only skipped ahead a bit (the lesbian scene jumped ahead so I didn't see them get away). And I hold to the review.  One notable thing about it is that it's pretty short (87 minutes), which is fine since films that aren't special often are just too long. You have okay films that can be over two hours long (dramas usually).  Some Hallmark movies are the same way.  Just not enough material.

I also recognized a few supporting characters, including two of the crooked cops. Since I'm tossing in various connections, here's one who had a guest star role on a t.v. police detective show. Also, as I said, the film was nothing novel.  You have the usual tropes, including the good guy seeming character that turns out to be bad, and so forth.  This includes some killings that you know are not really "light" entertainment and the usual solving of a problem by killing someone off.  It looks like this would be avoided, but it was not (though this did lead to a joke so was not totally gratuitous).  

But, sometimes, junk food is okay.  Reese and her costar were fun in this film.  As alluded to in a short extra, she isn't that bad on the eyes either in one of the outfits she is wearing. And, other than a comical kissing scene, the one risqué moment actually involves a guy being nude (nothing explicit seen).  Which is nice too.  The whole thing probably is helped by having a woman director involved.  I agree with the Village Voice review I found (the film got mixed reviews) congratulating her on her skills. 

(The director's films are somewhat mixed though she did do the very enjoyable -- saw it multiple times -- The Proposal.)

A few years ago, there was a teaser with Reese in a pool that told us that a new sequel to Legally Blonde (the first one was bad, the second one was a DVD affair that she only produced; the musical was good). It never did come out.  Checking Wikipedia, it looks like they went back to the drawing board, and it might come out eventually.  There is also talk of a new series of some sort.  Wonder what Elle is doing these days. Judge?

(Listening to the clip, I don't recall the end reference actually being in the film.  But, again, that's rather topical with the latest Supreme Court news. It's easy to do these asides, even without my usual tendencies.)

The Cater Street Hangman

"Anne Perry," who as a teenager committed murder with her friend, recently died.  I got a copy of her first book, which came out in 1979 and is the first in a long series (the last few books were part of a follow-up involving the son) of mystery novels.  

The first is The Cater Street Hangman though (1) the deaths are by a garrotte and (2) it isn't actually a man.  The Wikipedia entry notes that the author did not expect it to be the first of a series. The series in some fashion changed certain details.  Okay.  Well, I'm going to read the second novel and will see how this plays out. 

The book was overall very good.  It uses various narrators so that we get the viewpoints of various characters, including one man. The main character is one of the daughters of an upper-middle-class Englishman in the year 1881.  We also see things through the eyes of her two sisters (the book jacket suggests two sisters will be the key characters), her mother, and (to a limited degree) her brother-in-law, who she is sorta in love with.  And, in one scene we also get the thoughts of the paternal grandmother. 

The book is a combination mystery novel and character study as suggested by the opening scene when the young twenty-something daughter is shown rebelling by wishing to read the newspaper.  She eventually falls for a policeman.  Her younger sister in effect also marries above her station.  The third sister becomes (fairly late) one of the victims. 

The character drama dominates more than the mystery, especially since we never see things directly through the eyes of the police detective. We only see him working when his future wife is around.  The killer turns out to be the unhinged vicar's wife (I guessed the vicar midway and then figured it was one or the other).  Even the policeman never assumes until late it might be a woman. All the victims are women. 

I have trouble enjoying fiction, often even nonfiction is a struggle these days, so appreciate a good book.  The book at times seemed a bit heavy going but that mostly seems to be me.  Once I got into the groove, it read pretty fast.  I guess it not being totally quick to read is to its credit. 

They insist they will get better.

But the Mets have yet to get better.

Two missed popups, an error and a wild pitch cost the Mets a total of five runs Friday night against the Philadelphia Phillies.

The game was on Apple T.V. -- many more games in baseball are on these platforms -- but Wayne Randazzo, the former Mets radio guy, did call it.  I don't use those things so did not see their latest mess. They always seem to find a way to lose, including finding new ways (Alonso the other day blew a chance by running outside the baseline) to screw up. 

My sentiment for a while was that with three wild card spots, the Mets just had to go on a winning streak, get into a groove, to be back on track. Stop with the "first place."  Yes, the current format gives the top two seeds a bye. But, okay, third place or a wild card still gets you to the playoffs.

It's getting harder. This is the Phillies. The Mets are supposed to "own" them.  Still can win two out of three, but the Phils are now playing better.  They aren't a wild card yet but are not that far away.  The Reds and San Franciso raced ahead with long winning streaks, the Reds now in first place.  Miami (if they slip out, Phils can slip in) and Dodgers (third place now with the Diamondbacks in first!) are the other two wild cards.

Taijuan Walker (8-3), the former Met, won tonight.  The Mets eked out three hits. They are seven games under .500 (the first step) and 7.5 games out of the wild card race. That's tough with a bunch of NL teams competing for around five (Atlanta got the division and let's see if the Dodgers keep on scuffling) slots.  The Mets are not so good that they will dominate. 

Meanwhile, in basically a tweak move, Escobar was changing to the actual in competition Angels for some minor league arms. He's not doing great but the Angels need a third baseman.  The rookie Baty is up so he's basically superfluous.  The talk is about how great of a teammate he is.  

Vogelbach, who was out for a bit with a mental health break (which at first was not reported), is showing some life of late as a DH.  Good for him. He seems like a good guy, and he was just so bad until recently.  

ETA: The trade of an IF provided space for a back-up who was out for a while with a serious injury to get a chance.  

Scherzer did his job.  He's 7-2 though struggled enough times that the record is a bit misleading.  Of course, he was also out for rosin violation, another way he hurt the rotation.  The arbitrary nature of that makes his own blame questionable but it added to his own struggles.  

So, that left the Sunday game to be a must win -- got to win against your usual whipping boys when you struggle like this.  Things looked well into the eight with Cookie bending but not breaking and the Mets scoring off Wheeler.  It was a long tedious game, over three hours long.  

(I'm not really into bad baseball of late, including Phillies hitters looking lost at the plate and blowing prime scoring opportunities. And, the Mets had its share of bad play as well as too much mid-relief pitching.) 

But, Cookie only went four (two runs) so they had to stretch the middle relief, especially with Drew Smith (who has been questionable) out on that rosin violation. They gave up a four run eighth, so Phils were ahead 7-6 (traditional l Mets/Phils game, run-wise, though usually the Mets came out on top).  

Final result: same.

Final four runs: fielder's choice on a misplay, walk and two hits by pitch.  Okay.  Also, the closer has barely been used of late, helped by the Mets losing a lot.  Finds a way to lose.

SCOTUS Watch: Thomas Turns 75

It took a long time before Justice Jackson even dissented. But, now she has begun to do so. And, this girl is on fire. I think her mix of legal acumen and passion will make her a pleasure to read for a long time to come.

The Friday cases weren't hot-button and again it's asinine to back-end so much until the last week. The next opinion day is Tuesday when it will be harder for me to keep track in real-time since I'll be at the polls. There are ten cases left. They might shove that into two days. Fun times!

There are various cases today that received some degree of attention. Kavanaugh handled a case where Texas and Louisiana challenged guidelines regarding how the federal government enforces immigration laws.  The state claims here were so absurd that only Alito dissented.  He is also the only one who used "illegal aliens."  Kavanaugh and Barrett today wrote opinions using "noncitizens," avoiding even "aliens."   

The other three high conservatives concurred via two opinions and Kavanaugh made sure not to block any case turning on non-enforcement.  So, this is yet again an example of another theme this term: "You overreached guys, but hey we aren't too mad.  Just aim a tad bit lower!"

[Steve Vladeck notes on Twitter that Texas is now 0-4 and that this is "*another* case in which #SCOTUS's shadow docket ruling (refusing to stay a nationwide injunction) was *not* predictive of the merits.]

Barrett handled a case involving an unsavory con artist preying on noncitizens, promising the chance of citizenship per "adult adoption." Not a thing.  Thomas concurred separately to use a chance to press another solo crusade (damn First Amendment overbreadth doctrine) while Jackson with Sotomayor dissented. Jackson partially rested on text, arguing that the majority wrongly "edited" it as a matter of "constitutional avoidance."  

It's one of those times when you are sympathetic to the arguments of both sides. Not quite birthday boy, who is all concerned about the overuse of judicial power as if he is Mr. Self-Restraint. 

We had a normal 6-3 split in a Confrontation Clause case, Thomas vs. Kagan (with Jackson having her own short dissent).  Barrett was off the reservation (if I'm allowed to say that) regarding a portion of the majority's opinion regarding the history of the clause and as applied here:

While history is often important and sometimes dispositive, we should be discriminating in its use. Otherwise, we risk undermining the force of historical arguments when they matter most.

Barrett was concerned about Thomas selectively using post-founding era history selectively.  She is not suddenly denying the value of originalism.  And, this "discriminating" approach also gives her flexibility in her own fashion such as when she noted that emergency appeals ("the shadow docket") is a matter of judicial discretion.  

Kagan was Kagan having us "imagine" or "consider" or "one blink-and-you-miss-it paragraph of analysis" and "And so one might wonder."

Jackson dissented three times today, writing the main dissent twice, and adding her own in a third.  She was most on fire today in a case many probably didn't think warranted much thought, though when it comes to arbitration cases, a conservative/liberal split is fairly expected.

The question in this case is whether, when a district court denies a motion to compel arbitration, it must put its pretrial and trial proceedings on hold while the appeal of that decision (to which the losing party has a statutory right) is ongoing. The answer is yes.

Jackson explains (and Thomas went along much of the way this time) how she believes this violates procedural fairness and is the majority is just completely wrong.  Their rule "comes out of nowhere" with "jerry-rigging explanations," and "unmoored from Congress’s commands and this Court’s precedent."  It is the "that way lies madness."

I think she might have laid it all a tad too thick, but hey, she is working on getting her own voice. And, on this Court, like with Gorsuch's balancing for the rights of Native Americans, we need it.  She sees the principles of this case, which again few thought very important, as basic:

I agree with that hesitation—even one step further down this path is much too far. The mandatory-general-stay rule that the Court manufactures is unmoored from Congress’s commands and this Court’s precedent. And the windfall that the Court gives to defendants seeking arbitration, preferencing their interests over all others, is entirely unwarranted. The Court now mandates that result no matter how unjust that outcome is, according to traditional equitable standards, in a given case. This endeavor is unfounded, unwise, and—most fundamentally—not our role. 

The Supreme Court for years, by now often with little dissent, has weighed things in favor of arbitration.  Arbitration has its place. But, there is good reason to think they went too far.  Jackson's dissent also be relevant to the concerns about the shadow docket and the Supreme Court's own interventions when not warranted.   

Final countdown: ten to go.  Two of them are the same subject with various details (e.g., Jackson had to recuse in one of the affirmative action cases).  So, it is really eight cases.  And, we do not know if they will actually decide the independent state legislature case or toss it out given the court below changing things midstream.  So, two opinion days are possible.  

There are some major cases next week but it remains to be seen how much is actually decided.  The Texas case today even led some to think that Kagan has the student loan opinion since SCOTUS has now had multiple cases that have a narrower view of standing than the Alito side wants.  And, you know, that issue just isn't too ideologically exciting to some justices.

We shall see.  Birthday Boy and Alito should resign.  They are not serving in "good behavior."  Roberts should resign for the sake of the Court, including having a 5-4 Court that will be more respectable.  

SCOTUS Watch: Triggered-Lito Edition

Some guys have all the luck.

More on Sam Alito, his flight with a billionaire, and other developments at Law Dork this morning. This looked bad, even by Alito's telling, and that was before ProPublica published just before midnight last night. https://t.co/t0Z9FtznA8 pic.twitter.com/zYx9OFmw6r

— Chris Geidner (@chrisgeidner) June 21, 2023

ProPublica, which already reported on Thomas, has a new article out regarding a possible ethical violation (not a surprise) by Alito. Just a reminder. Federal judges serve for "good behavior," not simply "for life."

Alito decided -- don't do this people -- to pre-rebut the article via a Wall St. Journal op-ed.  Back in the day, John Marshall wrote op-eds in response to critics.  He did so anonymously.  And, they were constitutional arguments, not badly argued (more) responses to media reporting on ethical violations.  

Let's not forget that both (unlike the other seven) have yet to release their latest financial disclosure reports, taking the 90-day extension option.  

This underlines the need for a binding ethics code applied to SCOTUS, one that assigns responsibility to an in-house ethics czar of sorts to help settle these questions.  The Murkowski/King bill looks like a good place to start.  In an ideal world, Alito and Thomas would be forced off the Court.  

Sen. Durbin announced that they will go full bore after the July 4th holidays unless John Roberts does something. This focus on the Chief Justice is somewhat annoying.  What exactly is he alone supposed to do? The Supreme Court does not work that way.  They work by majority rule.

The Chief Justice has some influence, including in assignments, but there is only so much that he can do.  It is true that he can pressure people here, including by publicly announcing his support.  And, he very well could have accepted the Senate Judiciary Committee's invitation to testify.  Still, like the televising of proceedings, they don't act solo here.  

I think it is on some basic level logical, not surprising, or even on some level anyway inappropriate to focus so much attention on the Chief Justice. He is the symbolic leader of the Supreme Court and federal judiciary with some oversight duties.  Nonetheless, a bit of reality should be mixed in about the limited nature of his power.  

Let's end with a "good job!" to Alexandra Petri and her latest satiric look. Starting with a bit of Jane Austen:

It is a truth universally acknowledged that an American billionaire, in possession of sufficient fortune, must be in want of a Supreme Court justice.

Then, a reminder:

Instead of getting upset (which is unproductive and irritates the people who decide whether we can vote and control our bodies), we need to acknowledge that people who want their own Supreme Court justices are going to get them — if they are wealthy enough. Instead of pretending that a code of ethics can prevent this, let’s find a better system so we can end all this sneaking around.

(Linda Greenhouse compares the abortion ruling with the switch in the flag salute case. Three liberal justices basically switched back to their usual sentiments and two new members joined with the original dissenter rounding things out.  The harsh response surely helped but yes it isn't quite the same as five justices getting the white whale after decades.)

Solution? Sponsorship opportunities for their robes ala athletes who advertise Nike.  Thomas should be quite comfortable, with his NASCAR activities.  [Actual photo.]

Like Prof. Leah Litman's takedowns, there is some anger:

Or, if everyone with a uterus in the United States throws in three bucks, maybe we can buy a trip for Justice Barrett and Justice Kavanaugh to an emergency room where they can watch a woman suffering a doomed pregnancy go into life-threatening sepsis before receiving medical treatment.

But, hey, the bitter is helped by sweet laughter. Or something. Thanks. Anyway, I'm quite serious, Thomas and Alito should go. "Good behavior" and all that should have some bite. And, Thomas got his thirty-anniversary coin.  Maybe, he can spend time on a conservative circuit, perhaps with one of his former clerks, now becoming judges um left and right.

Alito can spend more time at Phillies games.  They are playing better now. Quite possible they can sneak into the playoffs again.  

SCOTUS Watch: Innocence Only So Important

Okay.  After that gave people something to do after the Order List, let's address the opinions handed down on Thursday and Friday.  I will split them into two for easier reading. Spoiler: no big hot buttons yet. 

Thursday had four opinions, none on "hot button" issues though perhaps two were particularly notable.  We have another extended and eloquent Gorsuch dissent on our duties to Native Americans. He was joined by the liberals.  Thomas again had separate writing to provide his particular narrow view of federal power over tribes.  He talks about the general "trust" relationship recognized.  At the end of the day, I'm not sure how much that really adds to the situation.  Such a relationship also makes sense.

The other case is notable for a long Jackson solo dissent (Sotomayor and Kagan jointly briefly dissent on more limited grounds) in a habeas case that cuts off the power of a person to bring an innocence claim.  Note how the government found a way to win without supporting the broad position of the lower court but SCOTUS reached out to go further.  

[Jackson (unlike Gorsuch) joined a majority in another case involving interpreting a criminal-related statute.  

Another opinion split 6-3 with Sotomayor writing and three conservatives dissenting. Neither comes off as too important though most are for someone.]  

One thing I respect is her statement that history, especially original history, is not the only thing that matters here.  There is some precedent that suggests federal habeas power is strongest tied to the original habeas recognized at the Founding.  But, that should not be taken that the original reach alone is what is in place.  This sort of thing is absurd.  It develops over time. 

A Trump legal guy congratulated the winning advocate. This pissed some liberal legal people off, one speaking of the "moral bankruptcy" of congratulating blocking an innocence claim.  She was specially chosen since the government (SG) did not support the broad claim that the six justices clearly wanted to take.  

Okay.  See, the guy thinks the correct side.  At times, that even happens in somewhat unfortunate cases where a sympathetic plaintiff loses.  Either way, what do you expect?  The guy is going to be embarrassed about "his" side winning?  And, I'm not sure if the person was ethically required to take the case.  But, I suppose she very well agreed with the position too.

This statutory past is prologue to the case of Marcus DeAngelo Jones.  Jones was convicted in 2000 of being a felon in possession of a firearm and sentenced to over 27 years in prison.

The SCOTUSBlog summary along with others highlights that this person is in prison for around three decades for a gun charge.  Now, that isn't trivial or anything.  His felonies and breadth of criming helped the solicitor general's argument that even granting his claim, wouldn't help him since he didn't really have "innocent" conduct here.  Still, thirty years.

I don't think anyone but someone who murdered in prison or something (toss in the Charles Manson types) should be in a small cage for that long. And, he was already there for over 20 years.  If the government wanted to toss this case -- they didn't want them to take it in the first place (had to be requested even to reply to the cert request) and then didn't defend the opinion below -- President Biden could have commuted the sentence. 

I gather if that would have required the guy to drop the case, he would have done so.  I think some of the attacks on Biden's alleged cruelty and lack of concern regarding the pardon system are at least somewhat unfair.  But, this case does suggest how the system can be a cruel and malfunctioning machine.  

Jackson is sure to note that she is just arguing for the right of Jones to make his case.  I think it's strong enough to let him out of prison after him being there for around twenty-three years.  Sometimes, I think a middle ground is the logical one.  A third option.  One that also addresses more than one thing.  Yes, maybe now, you just commute the sentence.  

Odds and Ends As Spring Ends

Today's the last full day of spring and various things happened.

==

I finished Starstruck: A Memoir of Astrophysics and Finding Light in the Dark by Sarafina El-Badry Nance.  She is a thirty-year-old scientist who has advocated for multiple issues, including science and women's health.  

She had the same protective double mastectomy after being found to be prone to certain cancer as people like Christina Applegate.  The book also talks about her troubled relationship with her mother, anxiety issues, and an abusive boyfriend.  Her life is so full already that it didn't even include her Sports Illustrated swimsuit pictorial.  A viral tweet where she talked about the importance of failure also is not included.  

It is well written (no "as told by" apparently) and covers a lot of ground. Each chapter has an opening science discussion.  

===

The Order List today was nothing much of note, including one case granted for full argument.  Justice Jackson didn't take part in deciding one matter and didn't say why.  It seems like she was involved in the case in the court of appeals.  Only Kagan so far (with Alito and Jackson the two I recall having a chance) in recent weeks decided to flag why.  

A federal appeals court will get another chance to decide if a state can deny a Planned Parenthood affiliate Medicaid payments for non-abortion related care, thanks to the US Supreme Court. It is an application of a near-unanimous recent case, showing the implications might not always be positive.  Two opinion days Thursday and Friday.

Julie Rikelman, of Dobbs advocacy fame, was confirmed as a First Circuit Court of Appeals judge.  This took over an hour.  It is rather ridiculous how many minor offices go through this process.  It is appropriate for a position like this to get Senate confirmation. Still, it shouldn't take this long.  It should just be a simple vote on the record.  

==

It might shock you, but a close family member of an elite politician has benefited from his family connections.  Oh, I don't the wife of Mitch McConnell or the son of Antonin Scalia.  Surely not Jared Kushner or Ivanka Trump, both of who held official jobs in the Trump administration.  

Hunter Biden, who did not, and who the Republicans might be wary about after Trump's impeachment-related attempts to use him to help win a presidential election (he lost, just to be clear).  A Trump-appointed U.S. attorney has been on this case for FIVE years.  WITCHHUNT! 

What did this result in? Two minor tax charges and a gun charge which he can avoid if he promises not to violate the rules.  Darn threat to the Second Amendment.  I can see why Republicans are crying foul though it is basically a mix of just wanting it hard enough and their usual vibe.

The "partisan Justice Department" that indicted Trump since he just couldn't stop criming is so crooked it is prosecuting Biden's own son. But, it's a sham, of course, since the charges are so minor.  Not that even then would it be likely a non-Biden would get charged criminally. Roger Stone (pardoned after being prosecuted in the Mueller investigation), for instance, avoided criminal charges for tax wrongdoing.  

I should have noted originally but will add now, that a major thing this whole thing shows (and people have noted this) is President Biden's humanity.  He has repeatedly said he loves his son, who basically is the "troubled" one (one person reminded us of his early tragedy of surviving the crash that killed his mother and young sister) in various respects.  

This is normal behavior, and though he wears his emotions on his sleeve at times as much as Bill Clinton (though it comes off as less fake), it isn't even truly novel among presidents. Still, it underlines why he is such a comfortable choice.  

==

Meanwhile, those who just want to find a reason to bash Garland, even after (they assured us it would not happen) Trump is indicted, have some fodder.  But, those who respond to such things point out that the case is stacked and there are reasons for their approach.  And, to the degree the FBI (head by a Trump pick) has issues, we know that.  Not the same as the "DOJ" or "Garland." 

As to the link, my response is that granting the importance (obviously) doesn't really change the argument the approach taken made sense (see also).  And, maybe there is some argument about the need to speed things up somehow, but the blame to me is systematic. For instance, Congress ignored emoluments, and 14A, sec. 3 legislation potential when Democrats still had control.  

I have not gone into the weeds in this thing, to be completely above board, but I'm still not on board with the Garland bashing.  I will repeat that if you don't like him, blame President Biden.  And, We the People too. 

On Prosecuting Trump and Packed Supreme Courts

One poll found that around one in three Republican voters in 2016 felt judicial nominations were a major factor in the election.  

It is unclear the number for Democrats.  I doubt it was as much.  An open Supreme Court seat could have been filled one way and swung it to make Kagan the de facto co-Chief Justice (Ginsburg and Breyer were the eldest but Kagan was a key strategist and was going to be there long-term) and I don't recall it mattering to many Democratic voters.  

A few still complain about Garland being nominated as if somehow an African-American nominee could have changed much.  They sneer at the choice while Garland would have alone changed things and anyway, if the Democrats won the Senate (which they did not) Clinton very well could have quite reasonably noted that they had to start from scratch, and she would pick someone else.  Did minority voters need more reason to battle against Trump?  

We know what happened.  Three new members of the Supreme Court, who last year took away basic rights from women.  They allowed states to enslave women.  Happy Juneteenth tomorrow.  No, you are not doing enough Dick Durbin and company.  Anyway, we handled that.

This cri de coeur is a long prelude but it helps explain why people accepted Trump.  It is part of the equation along with money, racism, anti-liberalism, and so forth.  The justices by the way do not have "life tenure."  

We skip over stuff in the Constitution, don't we?  

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Good behavior (let's use American English people).  This is supposedly self-enforceable as applied to the Supreme Court (at least) except for impeachment.  But, impeachment is applied to all federal offices (members of Congress apparently not covered with a separate means of removal).  

The term "good behavior" should be seen as a special limit applied to judges. But, we blithely speak of "life tenure" like we speak of freedom of expression (a gloss on the First Amendment) and for some reason a "privilege" of not self-incriminating ourselves.  But, that implicitly somewhat weaker word that "right" is not there either.  It is the "right" against self-incrimination as much as of having a lawyer.  

In a past entry, I referenced an article that put forth an originalist case for applying statutory limits (such as bribery or serious felonies) which would kick in automatically with judicial process rights in place to guard against abuse.  It was basically a road not taken even if you could find a provision passed by the First Congress that seemed to provide a precedent.  

We are at a place where even a binding ethics code applied to the Supreme Court is supposedly a threat to the separation of powers.  A bit absurd.  

===

We are starting to get actual prosecutions against Trump (civil judgments have already occurred as did a criminal case against his business).  

This is put forth as "divisive" even by a strong criminal reformer.  But, even he (who found a reason not to prosecute Bush43) grants Trump -- at least as applied to the records-related crimes -- has the personal wrongfulness warranting prosecution.  I'm glad we have reached the point where his in effect blackmail attempt is not working. As much.

It’s not like Trump’s behavior is being questioned for no reason. He just keeps doing things.  

People still try to argue that the investigations, impeachments, prosecution efforts, and more against Trump are in effect a partisan witchhunt. This doesn't hold up.  This discussion provides an extended analysis of how Trump simply kept on committing crimes since basically the 2016 campaign season.  Those who observed him long term would spread that back to the 1970s, with his and his father's civil rights crimes.

[Happy Father's Day!]

The fact nothing comes of each attempt is not a matter of him being found innocent. The Mueller Report surely wasn't that though the usual suspects sneer at him and how he is weak and not brave since he didn't somehow prosecute in the teeth of his boss Attorney General Barr or somehow block multiple pardons and Barr screwing over the investigation.

The investigation ended without Mueller ever bringing a charge against Trump, although the special counsel successfully prosecuted several major figures in Trump’s orbit. that require investigation. He has done so sometimes in spite of, and sometimes with the help of, the advisers and attorneys surrounding him who are supposed to keep him out of trouble. 

(The prosecution part is basically ignored.  Seriously.  It is like it didn't happen, in part since key players got off with the help of Barr and pardons.)  

There is a rule -- you can not like it but it is there -- in place now where POTUS cannot be prosecuted while in office. Mueller, not Superman, could not just ignore it.  He did do the best he could basically and listed various things Trump did that could be deemed criminal.  Liberal celebrities even performed a summary form of it to promote the point.  

There were impeachments. Republicans didn't deny he did what he was charged with; they found reasons to handwave it or argue there were technical problems with conviction.  McConnell even got all mad and said he still was open to consequences.  He was full of shit, of course, since he was not willing to risk anything to actually make that more possible.  

There is no "precedent" against prosecuting former presidents. Nixon was pardoned for that very reason.  Ford argued it was in the public interest at the time.  Nixon resigned.  He wasn't running for office in 1976 and continuing to commit crimes.  And, even then, Ford's choice is dubious. Many at the time thought so.  It helped his narrow loss in 1976.  

The Constitution itself leaves open presidents to be prosecuted even if they are removed by impeachment and denied future federal office.  Every single other political position is not deemed off-limits here.  Nor is it some basic universal norm like due process. The article linked lists multiple foreign leaders who were prosecuted.    

Again, this specific case is not a partisan witchhunt. That is bullshit.  Trump is if anything over and over again given more rope.  A higher test is provided to prosecute or obtain consequences. And, then there is always some new reason why it is wrong to obtain them. Oh. Don't think we are saying he is above the law.  We just keep on finding ways to let him get away with breaking it.  We are not his enablers! No! 

The New York City prosecution is supposedly a bad idea though few deny he actually committed wrongdoing.  Rick Hasen years back said the acts probably violated federal law. But, now it's like down on the list.  Trump is so full of crime that he supposedly should be let go for the "petty" ones.  The local prosecutor is stretching things though the basic argument seems rather simple enough.  And, even then, he still would surely be guilty of a bunch of misdemeanors.  Pshaw.  Be "divisive" to care about them!

The crimes are not only significant as a matter of protecting the integrity of city corporations but his crimes were a far from trivial corruption of the 2016 election itself.  If the state can serve the public good to address this because the federal government is busy with other stuff, it does not to me seem some sort of abuse of the system.  Even some liberals want to give him in effect a free pass here too.  Come the fuck on!

One op-ed over at the NYT (the familiar conservative co-author was a red flag) argued Biden should pardon Trump.  Part of the argument was the idea "we all know" that Trump is being selectively prosecuted. This is bullshit.  Biden and Pence did not obstruct justice and willfully retain documents and expose them to others.  Clinton did not either. And, well, none of them did all that Trump has done.  It's absurd.

A pardon is not a recognition of guilt necessarily, at least, accepting one is not.  I talked about this in the past.  A person who probably did not do it might be pardoned, partially since the possibility to obtain some other form of relief is unlikely.  It can be a way to help public safety or the like without the person granting they are guilty.  It does imply guilt in various cases.  

This is of some solace.  A pardon or commutation generally should be provided in return for something.  Innocence aside.  The person often already suffered some punishment, including a long prison term.  They admit at least some form of guilt.  They provide some sort of payment for their acts.  Trump is not doing any of this. He is from what we can tell over and over again continuing to crime, including inciting violence. 

I can imagine some sort of plea deal where he admits guilt, is willing to support the prosecution, not crime again, pay compensation, and definitely agree not to run for office again [the easy way here is to grant for the purpose of the law that he committed insurrection and therefore is disqualified].  

Some say "hell no" to this, though it is all very hypothetical at the moment.  But, you know, I can see some value in it.  Doesn't seem like it is to be.  We could have avoided at least some of it if a few more Republicans convicted him in the second impeachment.  Well, they rather enable Trump.  Jumped the shark there.  Dare to dream though.

It is, rather, serial behavior on his part and a habit of seeking to prevent investigators from learning the truth that has legitimately required the investigation of, and indictments for, one destructive decision after another.

And, get a packed SCOTUS in the process.

===

One more thing to toss in.  There seems to many a certain hard-to-accept quality to have Judge Aileen Cannon, the Trump nominee whose intervention in the document investigation was so heavy-handed and wrongheaded that the conservative 11th Circuit of Appeals knocked it down in a dripping with disdain fashion.  Toss in her lack of experience.

People want her to recuse.  If she doesn't, they want the court of appeals to require her to do so.  We have a few liberals and other sorts sneer at this. It is just stupid to think lacking experience is grounds for recusal. As if that is all people are saying.  The patronizing tone is even harder to take from one or more law professors who actually WANT her to recuse.  

I won't pretend to know the exact rules here but I do know the basic arguments being made.  And, they are not just being made by the general public.  Yes, legal minds can and do have bad takes.  Often.   But, recusal itself is something of a hazy thing.  There are no magic rules that make each case crystal clear.  There are shades of gray.  

And, this is not just some ordinary case.  Even if someone I told that too made out as if "not" should be put in scare quotes.  It is.  Trump's special benefits only underline this.  Again, even people who say she can't be forced to recuse sometimes grant she should.  If she should, there must be some sense of bias. Judges should not just recuse for no reason.  

There is some reasonable appearance of impropriety here.  There should be a way to not have both someone who he picked and someone who already showed the public clear reason to doubt her lack of bias.  This is not merely a matter of a conservative judge. Again, she has been overruled already by a conservative-leaning panel.   It is everything as a whole.

It is just aggravating we even should be in this position.  The hope is not only that we will get through it somehow.  It is that Trump committed and keeps on committing so many crimes that this won't even be the only federal protection (the 1/6 investigation continues and there are possible counts in the document one outside of Florida).  

Life continues to be aggravating as we try to find the good stuff.

Gorsuch and Native Americans: Calm Down A Tad, Please

Perhaps it's pointless to speculate. People attribute Justice Kennedy's sympathy for gay rights to his personal friendships, but that only raises the question of why he was open to such friendships. Why any of us develops the particular views we have is a complex and perhaps unanswerable question.

Prof. Dorf mixes in a bit of humility that is appreciated.  It is an interesting game to try to speculate.  We try to determine the mindset of people in various cases, including in historical studies.  

[He doesn't bluntly say so, but his co-blogger is one person who emphasizes Kennedy's friendships.  I heard the person argue same-sex marriage rights -- Kennedy was the fifth vote -- turned on that.  But, it is not like Kennedy is only libertarian/liberal on that issue. It's a simplistic analysis of his viewpoint.]

But, we should be humble. At some point, we aren't quite sure about certain things.  It is a good policy to determine what we are most clear about. What we can most agree upon.  A narrower approach can be helpful and more productive.  Sometimes, agreement won't be possible, even when it seems like it should be.  This can be annoying but you do what you can.

Anyway, people try too hard with Gorsuch and other justices sometimes, and it is of limited value to debate them. Still, I noted in my commentary about the big Native American decision this week that I don't quite go along with Gorsuch, even when his opinions on the subject are liberal-minded.  For instance,  McGirt v. Oklahoma seemed a bit dubious to me (somehow a lot of people were wrong for around a hundred years?).

Mark Joseph Stern, the liberal-minded Slate Supreme Court analyst has a piece analyzing Gorsuch's Native American positions.  

A through line of the justice’s work is the notion that bad things happen when the country steps out of line with the Constitution, while good things happen when it steps back into compliance.

What? Other justices don't care about the Constitution?  Apparently, there is something special about what it says about Native Americans that explains his position.  He is special since it doesn't seem like they were treated that well by many people early on, including members of the Supreme Court. 

Stern argues:

The Constitution does command a certain measure of sovereignty and respect for tribes and their members; America’s brutal oppression of Native Americans represented a sharp break from the Framers’ intent.

Like what?  The power to make treaties is cited.  See, states interfered here, refusing to respect treaties formed between the national government under the Articles of Confederation.  The Constitution does provide a stronger hand to the federal government.  But, the Articles repeatedly protect the treaty power of the United States.  For instance:

The United States, in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth article - of sending and receiving ambassadors - entering into treaties and alliances

There is nothing specifically special about Native Americans here. The Constitution provides a range of ways to provide more power to the federal government.  Native Americans are barely mentioned, including saying "Indians not taxed" will not be counted for purposes of representation.  

This suggests taxation would be a major way for Native Americans to be part of a sovereign community but what about if they paid some sort of duty on goods traded?  Is this a form of "tax"?  The provision by itself only tells us so much. Anyway, eventually, Native Americans as a whole were by statute declared to be American citizens at birth.  

What about the treaty power? Does this not protect Native American sovereignty.  Well, first, there remains a general power to breach treaties in certain respects, which applies to tribes and everyone else.  Put that aside.  

What about the Commerce Clause?! The clause lists states, foreign nations, and Indian tribes.  The one express power (and it is part of a list of 17) bluntly says that a tribe is at least not necessarily a foreign nation. The provision gives Congress a lot of power over Native Americans.  On the other hand, you can use the same clause (with others) to say the federal government has broad power over other things too. I noted that Justice Barrett's opinion in fact can be applied broadly there.  

The "Framers' intent" regarding Native Americans is not some general benign one.  They had various intents.  The "not taxed" bit even implies that there is potential that Indians would eventually be part of the whole white (to be blunt here) political community.  The idea (to cite Gorsuch) that Native Americans would just be sovereign as long as they all wished and be protected as such is just a tad ridiculously naive.

The Constitution says a lot of things.  Dobbs is offensive to me because I think it protects a degree of personal sovereignty that includes reproductive liberty.  Why does Gorsuch specifically get all eloquent with Native Americans but not the rights of women to control their bodies?  

It isn't merely because of "Framers intent" or something.  Don't be asinine.  As Michael Dorf notes, it isn't just because he is a Westerner either.  His education and early professional years were Eastern establishment. He worked during the Bush Administration, including supporting its strong executive power in the "war on terror."  People found that sort of thing a violation of our constitutional values too.  

To the degree I would wish to assume, I would figure that Native Americans are a sort of safe somewhat mythical story for Gorsuch, a way to support his own version of a limited national government.  Being from the West, his mother heading the EPA, and being a judge among Native tribes led him to be more likely to be sympathetic. But, it is not like others from that milieu with "originalist" views necessarily join him.  

Gorsuch is not really a special snowflake here generally.  You can find conservatives on the courts of appeal who have good stances on certain subjects.  We are probably partially seeing a certain generational thing here on how conservatives are seeing things.  We will see certain differences over time (sigh) in how Gorsuch, Kavanaugh, and Barrett see things.  There are differences among conservatives on a variety of issues.  

And his singular commitment to Native justice is one of the most encouraging developments at the Supreme Court so far this century.

"Native justice" here has been shown to include inhabitants of the territories, at least to some extent. He has argued that the Insular Cases were a grave injustice. Again, this didn't stop him from helping the Bush Administration, and I don't know of any opposition from him on the treatment of people in Gitmo or the like.  Anyway, a nod to the book Island Treasures, children/young adult-level account of growing up in Cuba.

I appreciate that Neil Gorsuch has a commitment to Native Americans, which is a nice surprise on some level, but how "encouraging" is it really?  Justices repeatedly have their own idiosyncratic positions. Justice Byron White was conservative on some issues, practical, and even liberal on others.  I'll grant that justices tend to be more in boxes these days.

Still, Gorsuch brings with him (as noted in that article) a lot of baggage. His Native American jurisprudence reflects some of this by having a strident "just so" true believer vibe.  It is not even in "this century" totally unique.  Barrett might have a bit of it (there are examples where she joined with the liberals).  Scalia had his moments (disclosure laws, DNA swabs).  

Ramos v. Louisiana held that the Sixth Amendment right to a jury trial, as incorporated against the states, requires a unanimous verdict to convict a defendant of a serious offense.  Gorsuch wrote for a 6-3 Court with Kavanaugh concurring to emphasize the racial equality issues at hand.  Who dissented?  Alito (author) with Roberts and Kagan.   It is striking in fact since I think even on precedent grounds, Kagan could have found a limited way to go along.  But, she was consistent and did not write. 

I respect Gorsuch's position on Native American rights.  We should be able to have complex positions that make us not always go along with our usual allies.  I would say "calm down" when this is taken too far, including some idea that he is some special snowflake about "Framers' intent." Originalism again shows its siren's song, it is ideal here since it is "done right." 

Native Americans should be treated with respect. They have had a harsh history (along with others) and Gorsuch's voice as a whole is appreciated.  But, the text and history alone do not settle these questions. His position is not compelled by either.  It is a judgment factoring in various things, imperfect human experience in the current day, just like other justices are doing.