Death Penalty Watch

Ivan Cantu was sentenced to death for the 2000 murder of his cousin and his cousin’s fiancée, James Mosqueda and Amy Kitchen. 

Over twenty years, if not extremely as over forty of the second case, raises continual concern (cited by Breyer, Stevens, and Ginsburg) of extended delays between sentencing and execution. As Breyer once noted:

First, a lengthy delay in and of itself is especially cruel because it subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement. Second, lengthy delay undermines the death penalty's penological rationale.

Consider punishing someone for something they did over twenty years ago. The state of the person's life was very different. Society is different. The opinion of the victim's family (which is not likely to be of one mind) might have changed.  Add the fact that the person already is being punished all that time. As a person ages, the safety rationale of execution diminishes decade by decade.  All that time in cruel conditions is a problem too.

Consider Thomas Eugene Creech. He is a serial killer. Once in prison, he killed an inmate who threatened him. This last murder specifically is why he was sentenced to die by Idaho. The facts sound like a form of self-defense but I can understand that murder in prison is a special case.

[ETA: The additional discussion of his failed execution that I linked in the footnote cites an earlier Supreme Court opinion rejecting a challenge to his sentence. The dissent flagged the details of this specific crime (not all his crimes) make the special degree of heinousness required for a death sentence questionable at best.]

That murder was in 1981. He's in his seventies now. What public interest, other than a form of euthanasia, requires them to execute the guy now?  

Since this length of time on death row claim never received traction, his lawyers tried other things. For instance, a judge is the one who sentenced him. Well, a recent capital case involved a judge overruling a jury. If no justice was going to flag that, why would this get much more attention?  

(The lawyers argued that the "evolving standards of decency" require a jury to decide who lives or dies. This Court is not a great fan of that concept, especially as applied to courts overriding executive and legislative action.)  

A parole committee deadlocked 3-3, with one member deciding not to take part (not sure why). So, it is not only a bunch of death penalty absolutists who are promoting his case.  When life turns on such close calls, I think life should win. It underlines the corruptness of the system where even executing a clearly guilty serial killer raises red flags.*

SCOTUS rejected his claims without comment. Then, Idaho tried to execute him. They tried for forty-five minutes, but there was some vein access issue. They failed. The death warrant expired. Idaho now has to decide what to do next. 

Idaho wants to assure us that it was not "botched" and "the process worked as intended." Oh? Forty-five minutes and eight (by one count) failed attempts? They are now talking about using the firing squad in executions, which some experts think is the "best" method. Why not just avoid executions? The last one was in 2012. 

So, that left Texas. 

Texas sentenced Cantu to death. There is credible evidence, now convincing more than one of the original jurors [second guessing is a thing in such cases, especially as new evidence arises], of reasonable doubt of his guilt. It is doubtful enough to commute the sentence. 

Cantu's case is more fact-bound so it is harder to raise a last-minute Supreme Court review. The Supreme Court never totally closed off a rule against executing the innocent. 

But, even before the Court became more conservative, the level of proof necessary to have a chance was darn hard. He tried to get the chance to make a claim, citing new evidence. A challenging uphill battle.  The court of appeals rejected his attempt.  

He was executed without a final SCOTUS appeal. His final statement included a continual declaration of innocence.  

---

* Chris Geidner summarized:

He has three cases pending at the U.S. Supreme Court. The first petition and application for a stay of execution address the judge-only sentencing scheme; the second petition and stay application address the state’s secrecy; and the third petition and stay application question the constitutional effect of alleged false evidence being presented by a prosecutor at a clemency hearing.

I have addressed the problems with the lack of opaqueness regarding the rules ("protocols") used for executions. Relatedly, there have been concerns about the safety of the drugs used, especially with the lack of clarity of details. This includes rejecting requests by media for more information. 

The secrecy claim appears from a perusal of the brief to focus on the drugs used to execute him. The botched execution turned on not being able to inject them in the first place. 

But, it still underlines the importance of safeguards regarding methods of execution.  ETA: More here.

Trump: Serial Predator

[This post deals with sexual abuse.]

Stephen Colbert's comment about Trump trying to block civil judgments against him made me think. As one article reminded us:

At least 26 women accused President Donald Trump of sexual misconduct, including assault, since the 1970s.

The article summarizes with a Trump response to the allegations. The allegations include his first wife:

Ivana said Trump attacked her after he underwent a painful "scalp reduction" procedure done by a doctor she had recommended, tearing her clothes and yanking out a chunk of her hair.

"Then he jams his penis inside her for the first time in more than 16 months. Ivana is terrified … It is a violent assault"

There is a lot of groping, assisted in various cases by his role as a celebrity host. Summer Zervos is a notable example:

2007 meeting at The Beverly Hills Hotel.

"He then grabbed my shoulder and began kissing me again very aggressively and placed his hand on my breast," she said. "I pulled back and walked to another part of the room. He then walked up, grabbed my hand, and pulled me into the bedroom. I walked out." Zervos added that Trump thrust himself on her before she left the room.

Zervos sued Trump for defamation after he accused her of lying about the allegations. Trump's attorneys have moved to dismiss the case, arguing that, as president, he can't be sued in state court and that his remarks about his accusers are political speech. 

The litigation then dragged on and on with the usual costs, abuse, and inability to respond openly given the limitations of litigation. Trump's being in office (which will be a stain on our nation for time immemorial) was used to delay.  She (as many victims do) finally said it wasn't worth it:

"Ms. Zervos no longer wishes to litigate against the defendant and has secured the right to speak freely about her experience," her lawyers Beth Wilkinson and Moira Penza said in a joint statement. "Ms. Zervos stands by the allegations in her complaint."

Zervos' case remained unresolved in part because Trump sought while in the White House to halt a variety of legal proceedings by arguing a sitting president could not be sued.

When the events that a civil jury now has decided occurred as she alleged occurred, E.J. Carroll was warned by her friends not to sue. This was in the 1990s, long before Trump was as powerful as he is now. A change in New York law to allow for more time to bring old allegations of sexual abuse allowed her to bring suit as late as she did. Her case is still pending.

More information on the sexual allegations of wrongdoing can be found here. The overall nature of the allegations is not really denied by most people. You will have the usual people not want to believe them or who will diminish them. There are a few tools that are doing that with the civil suit in New York referenced by Colbert.  

However, again, the fact he has played fast and loose with real estate laws all his professional career is not news to those who have kept track.  

Go down the line here. The Manhattan DA requested a limited gag order for the criminal trial, able to provide detailed evidence as to why it was necessary. Some concern trolls are upset that people are mad that Trump blithely gets to do this without nearly no penalty (unpaid contempt fines are not really that), worrying about the First Amendment or people not concerned with due process. I'm tired of them too.  

Trump is a predator. The fact enough people voted for him in 2016 (three million more did not, but not in the right places) and keep on supporting him is a travesty. I have not kept a close eye on the coverage of the E.J. Carroll case, but the headlines alone should reference his past history.

Down the memory hole as in 2016, he is often seen as a generally vague distasteful person without people being forced to address the particulars. And, finally, why hasn't the Supreme Court decided whether or not to take the immunity case so that the D.C. trial can officially get back on track?  Or, hand down an opinion in the insurrection case? 

Are they waiting for Nikki Haley (whose campaign texted me for a donation today; sorry, no) to drop out?  Yet another enabler of a serial predator. Nauseating.  

ETA: They took the immunity case. Enablers. 

Tennessee Governor Signs Law Allowing Potential Officiants to Refuse to Solemnize a Marriage

Marriage generally requires two steps. You get a marriage license. Then, you have to "solemnize" it.  The basic idea is to have some ceremony with witnesses. The license should do it. The solemnization adds some additional symbolism and clarity to the whole thing. 

Traditionally, this was a church ceremony. So, the idea was to get God involved. The word is defined as "formal or ceremonious observance of an occasion or event." It does not necessarily have a religious connotation though it usually does. In this case, it includes going to City Hall.

During the debate over same-sex marriage, some people talked about taking the government out of the "marriage" business. The people who say this do not usually mean that married people should not have special rights and obligations. For instance, tax consequences, or a right to visitation at the hospital. 

They consider "marriage" as a religious term. They would call the other thing a sort of "civil union." But, that is a government-based marriage. It is a civil union.

The alleged concern for religious liberty, which Justice Alito has flagged, is specious. Jesus tells us that divorce is immoral except in special cases (the gospels disagree when). Biblical law disallows more marriages as "incestuous" than the civil law. 

Homosexuality is more controversial for some people. But, religious liberty is for all. And, it was not that long ago that divorce was broadly problematic. Just ask the British royals. Being divorced was verboten for many people, including politicians, in this country not that long ago. 

The concern is thinly veiled homophobia. There is a push to allow public officials to not take part in marriage "ceremonies" when their religious beliefs are at stake. The word, along with the word "solemnize" is misleading. A public official must take part in many things they might oppose. For instance, a Quaker will have to take part in actions that further warfare in various respects. Tax policy clashes with personal morality in various respects. It is not a religious ceremony.

Tennessee passed a law ("public welfare requiring it") that allows a public official not to solemnize a marriage. The law simply notes the exception. 

An original draft more explicitly flagged it as a religious exemption. The law also is general. Someone opposed to divorced people remarrying can take advantage of it. But, again, such people have been around for quite some time. What motivates these laws is LGBTQ+ bias. There is enough cover to claim they are neutral laws. That should only convince those who wish to be.

The law is flagged as a way to chip away at the rights of same-sex marriage. A person can still get married. The state is not allowing officials to deny licenses. Any number of people can solemnize a marriage. This includes "ministers, preachers, pastors, priests, rabbis and other spiritual leaders of every religious belief" and a range of governmental officials. Then, there is a qualification on what that means. If people want to talk about religious liberty, how about states trying to parse like this:

In order to solemnize the rite of matrimony, any such minister, preacher, pastor, priest, rabbi or other spiritual leader must be ordained or otherwise designated in conformity with the customs of a church, temple or other religious group or organization; and such customs must provide for such ordination or designation by a considered, deliberate, and responsible act.

New York recently passed a law to allow non-ordained people to marry one time. The whole parsing here to be is a First Amendment problem. Just let anyone who wishes to do so officiate a marriage. If you want, which is fine, require the person to take a class or something to familiarize themselves with the rules. They also can be checked out to show they are not frauds or something. But, to me, this is a more real concern than what is behind this regulation. And, we should understand the context:

Republican officials in Tennessee have banned gender-affirming care for minors, repeatedly singled out transgender athletes, removed LGBTQ+ people from the state's nondiscrimination laws and targeted gender identity policies and education in schools. By May last year, according to the Human Rights Campaign, Tennessee had passed 19 laws restricting LGBTQ+ rights since 2015.

Overall, the law is discriminatory in motivation and practice. A same-sex couple is most likely to find out that someone won't complete the marriage. The couple has a right to consider this a homophobic act. There are worse anti- LGBTQ+ acts these days, especially the anti-trans laws out there. 

But, it is part of an overall campaign. The people doing this will also try to do things with more teeth to harm same-sex couples. If you work in government, one of your jobs might be to handle marriage licenses. Or handling divorces. Is there a law saying that if you disagree with a divorce, you should not have to handle the paperwork? If you are a judge, can you not take part in a civil lawsuit because you find the litigation immoral?

The whole thing is a symbol of what is wrong with the Republican Party these days. They promote bigotry from the top down.

South Carolina Primary

A rematch is a curious thing in presidential elections. 

We had it in 1956. There is also the curious 1892 election after a popular vote winner lost the election the time before. 

Trump running again after losing (and by a large margin in the popular vote) is curious.  Some even assume he's a lock to win. 

President Biden surely was a lock for the nomination, even if (this is getting a bit too much attention in some places) some people are fantasizing about Biden eventually choosing not to run. We still are having primaries, even though there are only token opponents. So, he won South Carolina with over 95% of the vote. Nice use of government resources, huh?

Back in the real world, I appreciate that Jennifer Rubin wrote a supportive op-ed entitled "Kamala Harris is an underrated asset." The "Biden is a horrible candidate" talk repeatedly has a subtext (or an aboveboard text) of Vice President Harris bashing. 

For now, Nikki Haley is sticking around. She is the last woman standing in a pretty sad field. As TPM notes, her showing in South Carolina (granting she was governor there not that long ago) is not as bad as it seems. We have been hearing about a disaster there for a while now. The current count is something like 60/40. Forty percent of the people in a red state like South Carolina voting against Trump is notable. 

(It looks like the state has a winner-take-all system since all the delegates went to Trump.) 

Why shouldn't Haley stick around, if she has the money? Now that she is the sole opponent, she has started to be a bit more nasty against Trump. It's hard to see that Trump (who is now aiming to take over the Republican National Committee with his daughter-in-law) forgiving that. 

She's only around fifty. She has a long future ahead of her. People talk of the possibility of Trump dying or maybe being convicted (if that matters). Who knows, for instance, what is going to happen even in 2028? Anyway, after she joined the others in soft-soaping the anti-Trump talk, half a cheer for now, Nikki Haley, though your positions still are horrible. 

While some are doom-ing, 40% of South Carolina voters went out of their way to vote against Trump. I'll take that as a good sign. 

==

Back in 1944, there was a chance Justice William O. Douglas (only on the Court for about five years at the time) would be FDR's vice president. 

It was not to be. He turned down offers from President Truman. By the 1950s, Douglas was less likely to go into politics, though he played politics. Citizen Justice: The Environmental Legacy of William O. Douglas by Judge Margaret McKeown (she retired to leave open a slot for Biden) discusses his environmental campaigns. 

At some point, it gets a bit repetitive but does provide some depth regarding his techniques and talks about possible ethical problems. We also get the background on his famous dissent about giving standing to the environment (really for those who enjoy it). The judge herself sees him as a kindred spirit, both as a westerner and environmentalist. 

I wouldn't have minded a bit more devil's advocate, talking about how the people he campaigned against weren't all evil bastards or something. She did flag the accusations of elitism, opposing certain means to open up the environmental treasures to those without the ability to hike there or something. Also, she notes sometimes the development he opposed was supported by locals. 

So, we do get a bit of that too. The book ends with his comment that he wanted to leave this earth better than he came. The video from Good Morning America, right after his retirement, is as of now still up. 

And, his fourth wife (who he married in the 1960s while she was in her 20s) is still around. She shows up for various Supreme Court events.  

SCOTUS Watch

Having observed the treatment of violent criminals in the New York area by the Manhattan DA there, Alvin Bragg, it’s safer to keep him here and keep him in custody so he can’t be out doing this to individuals either in our state or county or the United States.

Arizona Prosecutor Rachel Mitchell is trolling against DA Bragg. She has someone in custody for non-fatal crimes. 

The NY crime involves strangling and bludgeoning a Queens mom sex worker to death. A Bragg spokeswoman noted that New York’s murder rate is less than half that of Phoenix, Arizona.

There is no charge yet in the NY crime so the Art. IV extradition rule has not kicked in. Someone online said (I haven't seen it) that there already is an Arizonan policy to hold a felony defendant in such a case. I don't know what the exact rule is. I do know the woman who the Republicans chose to ask questions when someone accused Brett Kavanaugh of sexual abuse is trolling in a case involving a horrible crime. It's disgusting.  

==

Fix the Court is eagle-eyed about any possible ethical problems.

A new report reveals that Chief Justice John Roberts and Justice Clarence Thomas did not use the U.S. Marshals Service for their security detail for several years, limiting the public’s insight into the justices’ off-the-bench activities. 

The documentation we have is incomplete, including all of the details of multiple cases (she saw) involving Sotomayor when she used state-funded services. A full account of expenditure would meet the spirit of a constitutional provision (Art. I, sec. 9) about recording spending. 

==

C-SPAN summarizes a Sotomayor/Barrett event:

Supreme Court Justices Sonia Sotomayor and Amy Coney Barrett spoke about the court’s processes and the importance of navigating disagreements with civility and respect during a discussion at the National Governors Association Winter meeting. This discussion highlighted Chair Gov. Spencer Cox (R-UT) and Vice Chair Gov. Jared Polis' (D-CO) bipartisan initiative “Disagree Better.” The initiative focused on getting leaders and the public to debate issues of concern but with civility and respect for each other. 

Charming. Justice Sotomayor recently was flagged as saying she was quite upset about various rulings. Now she (again) is playing nice with the people who are behind them. 

Got to use civility to dissent when a justice was put on the Court as people voted for Biden (CF: Garland) was the final vote to help enslave women. I am turned off when people sneer at her religious beliefs, okay, but my respect for her is somewhat low. Sorry. She asks good questions during oral arguments. Everyone be polite!

People flagged questioning during the Barrett confirmation hearings regarding the possible criminalization of IVF. A group Barrett endorsed supported it. She used the normal dodge that it was a live controversy that she could not discuss. The bottom line is the questioning underlined the stakes of her nomination.  

==

Meanwhile, President Biden continues to get around a 6-3 SCOTUS ruling that blocked loan forgiveness. The final binding effect of the ongoing efforts is an open question. They do overall seem on firmer footing. It's also a BFD, even if some of the framing implies otherwise. 

Orders

After a conference, no orders were dropped on Friday. We are still awaiting a judgment on the Trump immunity case. No opinion was dropped for the Trump insurrection case. 

There will be orders on Monday.  

ETA: Nothing much to note regarding the Order List except Jackson explained her recusal in a case while Chief Justice "misleading by example" Roberts did not. 

Trip to NYPL

I went to the New York Public Library (NYPL) at 40th and 5th Avenue, which was renovated a few years ago. The new version is impressive. If you go down 41st (from Grand Central), look down to see the sidewalk poetry.  I took the Express Bus ($7 now) back. 

I will always think of it as the "Mid-Manhattan" though it has a new name. On the "stacks" level of the first floor (1M) there are many DVDs, CDs, and audiobooks. It was closed when I went, but there is a food court now, and a rooftop terrace area (I never went there).  

It somewhat amazes me that I can go to a library filled with books and not find much interesting. I did take some DVDs and books out, including an interesting one I'm reading by a federal judge (now retired) on Justice Douglas' environmental record. I spent hours there this time.

Eat With Me is a pleasant film involving a gay man who runs a struggling restaurant. His mother shows up one day, driven crazy by her husband. George Takei pops up late in a cameo. Nicole Sullivan, from Mad TV and other programs, is in the film as a wacky neighbor. The film again overall is pleasant. Nothing special but I enjoyed it as a whole. 

The Cigarette Girl From Mosselprom is a silent Russian film from the 1920s. I saw the first half or so of the film. The film concerns a young cigarette seller (looking it up, the woman had a long history in film) whom three very different men (an office worker, a cameraman, and an older American industrialist) fall for. 

She becomes an actress. Meanwhile, a woman in the same office is hoping the guy asks her to marry her, raising another complication. The film is basically a romantic comedy. One amusing scene is when the office worker tries to "save" the woman from committing suicide. Turns out to be a movie scene. 

It is amazing to watch a black-and-white film that shows life in the 1920s Soviet Union. The fact it is a silent film doesn't make it unwatchable though just listening to a musical soundtrack is annoying. The acting and overall filmmaking are good. The overall story, however, is such that it will keep my interest for a film that is around two hours long. I think if the film was a third shorter or something, it would have helped.

Mind you, I stopped watching after around forty minutes, but that is my overall sentiment. It still is a film people should check out.  

I also took out the second season of Drop Dead Diva (an empty-headed beautiful woman dies and her soul is returned into the body of a heavy-set and dull lawyer). I watched the show when it was on until I think it overlasted its welcome. Also, an Australian TV series, which I will comment on later if I find it worthwhile.  

The library has a whole section of television DVDs, including classical and foreign shows. It is a prime resource. 

Meaning of Religious Belief

One thing that interests me is religion. I went to Catholic school from sixth to twelfth grade. Catholicism was not a big part of my family's life. It was a given for my parents. But, we were not raised strongly believing it. This opened the way for my move toward non-belief. 

I remain very interested in the Bible and religion. For instance, Bart Ehrman's weekly podcasts are on the schedule. I am not anti-religious. Many religious people are good people. We believe in God for various reasons. Our understandings are diverse. The abuse of religion by some should not ruin it for everyone.  

What "religion" entails is one interest. Merriam-Webster defines "religions" as "relating to or manifesting faithful devotion to an acknowledged ultimate reality or deity." People are "religious" and do not believe in a God. Some Buddhists do not believe in a god. Universalism includes followers who do not believe in a god. Some people believe in some divine essence. Some religions like Taoism believe in some sort of "divine force."

I skimmed Tim Crane's The Meaning of Belief: Religion From An Atheist's Point of View. He states:

Religion, as I am using the word, is a systematic and practical attempt by human beings to find meaning in the world and their place in it, in terms of their relationship to something transcendent. 

So, it is a set of beliefs that fit together into a system. It is practiced with rituals, doctrines, stories, and the like. It provides a meaning of life as a whole. (A common term used here is "ultimate truth" though he does not seem to use it.)  And, the meaning is found in our connection to something transcendent, something beyond normal existence.

The last part is special. Humanism, in his view, is not a religion. We can have things special to us, but only religion has "sacred" things since that means a connection to the transcendent. A person can even have a "religious temperament," be an atheist, and follow religious rituals. But, to be truly religious, you need a religious impulse. A belief in that transcendent existence.  

Tim Crane also explains that the bad things -- such as violence or sexism -- laid on religions regularly are not purely religious. Also, in part, since there are so many religious people and religion is not the problem, the best approach is overall tolerance of religion. Not support; tolerance.

I agree with that last part. People use religions, including Justice Alito in today's Order List (see last entry), beliefs to discriminate. But, there is nothing unique to religion that requires this. Crane notes that the 20th Century also shows that religion alone is not the path to perdition. 

Many religious people promote equality.  Religion need not be particularly the path to irrationality either. Catholics, for instance, nearly always reject the official policy regarding birth control. Many religions, including Judaism and Islam, provide room for a lot of debate and freethinking. Religion provides a lot of things for people too.

I don't know about the line drawing for "religion" though. The idea a person can have religious temperaments belonging to religious groups, but not really be "religious" to me is a bit silly. The idea atheists cannot really have a concept of sacred also seems off to me.  Religion often has an emotional component that does not require belief in the supernatural.

Exact line drawing often could be of limited importance. I think, for instance, there are three ways to approach the First Amendment. First, "religion" can be defined in a very open-ended way. Second, we can take a type of "penumbra" approach (Griswold v. Connecticut) involving aspects of religion, including rituals, matters of conscience, and so on. Third, religious choices can include the rejection of traditional religious beliefs.

What lacunae really result from the different accounts? Sometimes, "conscience" will be more open-ended, but you don't need to have much more to have it fall into "religion." Courts and so on don't want to limit "religion" in close cases. Other factors, including harm to others, should be the deciding matter. If humanist groups are not "religious," they often will fall within an exception (such as a tax break). 

Tim Crane's book lost me at various points. But, it has some interesting aspects.  And, I agree the heavy-handed approach of some "New Atheists" is both counterproductive and misguided in general. A respectful examination is appreciated.  

ETA: Speaking about religious issues, Alabama's ruling recognizing frozen embryos as "children" included a justice firmly supporting "theologically" based laws. Very troubling and something Justice John Paul Stevens' in particular flagged in various opinions. 

More here. Various concurrences, partial dissents, and full dissent provided different takes, none of which seem particularly liberal. But, more sensible.  

SCOTUS Watch

Trump Immunity Case

I referenced this earlier but I'll repeat myself to put things all in one post. 

Trump's lawyers requested a stay last Monday, the last day to do so before the circuit opinion went into effect. The government quickly replied. And, then Trump's side replied. Speed is possible when desired. 

The quick reply allowed the Supreme Court to take up the matter in their Friday conference. One assumption was that if they cared to grant the stay, they would do so on Friday. This is a common approach. Then, the Order List involves run-of-the-mill stuff. On the other hand, this is a special matter.

Regardless, no action was taken on Friday.  

To remind you, if you go to the Docket Page (the main Docket Page link under the "Case Documents" tab; SCOTUSBlog helpfully provides case pages with a direct link), you can find proceedings and orders related to the case. 

Now, there is a service where if you click the envelope icon on the case's docket page, email updates will be provided as things occur. BTW, the docket page link on my blog sometimes doesn't work if you directly click it. If you cut and paste the URL, it will work. 

Friday Odds and Ends

SCOTUS released the April argument schedule. April is the final month of oral arguments.

Alito released an "administrative stay," which holds up a case so the request can be examined, in a bankruptcy matter. 

[Lifted on 2/22.]

The solicitor general's request to take part in three oral arguments was granted. 

Wednesday 2/21 was announced as a possible (let's grant it will be) opinion release day. 

Meanwhile 

The Senate Democrats have still not submitted those subpoenas to Leonard Leo and Harlan Crow. A third person early on cooperated, making that subpoena unnecessary. These two cooperating is not likely. What is the hold-up? 

A preview of the issues that will be covered in an argument this week. It involves environmental regulations, an area the Barrett Court has interfered with in recent years. It has some procedural complexities, including a rush to judgment to hear the case. An oral argument, over action the shadow docket might be said to be a "see Steve Vladeck" move. 

Also, a major development in the New York fraud case:

On Friday, New York state Judge Arthur Engoron handed down the verdict in Donald Trump’s civil fraud case. Engoron ordered Trump, Donald Trump Jr. and Eric Trump, along with other officers, to pay more than $360 million. Trump himself is banned from running any corporation in New York for three years; his sons are banned for two.

This guy is the favored Republican candidate for president. To add one more wrinkle, his ever-increasing financial issues only encourage his financial grift, including the use of foreign money supplies (see, e.g., emoluments issue). 

Sure. That is what we want in a chief executive. 

Order List 

After the day off for Washington's Birthday (not President's Day), we have a list of Supreme Court orders. The list was long (if it's over 10-15 pages, it is suggestive) because various justices added dissents and statements. 

Thomas dissented regarded provided a statement regarding a rent control law, saying he is open to the challenge. Sotomayor (with Jackson) dropped a statement respecting a habeas case. Kavanaugh showed interest in the matter in the past. Four votes are necessary for taking a case. 

Alito dropped a statement to complain gay rights somehow interfere with religious liberty as if a range of sexual questions (including divorce) with religious connotations did not exist long before gay rights were protected. 

The case involved the recusal of a person with religious views that reasonably implied bias in the specific case. Read the state opinion here.

Alito (with Thomas) dissented from denial in a case involving an alternative to race-based affirmative action. Gorsuch in a past procedural order supported a stay but did not join their dissent. The duo argues the motive and effect is racially discriminatory. The actual factors are not (at least if you simply read them). 

The case has been closely observed since there is a never-ending fight over such matters, including how far the anti-affirmative action movement will go. The original plan relied on tests. Then, it changed to the use of various factors, which is claimed to burden Asian Americans. 

ETA: Mark Joseph Stern (Slate) flagged five justices recused from various orders -- Roberts, Alito, Kagan, Barrett, and Jackson. Only Kagan and Jackson provided reasons. 

Next Up

We have oral arguments, an opinion day, and another conference scheduled this week.  

ETA: The opinions were short (by Jackson and Kavanaugh) and unanimous (Alito and Thomas added concurrences) opinions on double jeopardy and maritime law. 

Mets Baseball Is Back

Baseball is back. Pitchers & Catchers' First Workout was 2/14. Tomorrow, the first full-squad workout takes place. And, we have Spring Training games next weekend. The theme for 2024 is "Don't worry, we didn't expect much anyhow, right?"

The usual naysayers are talking about things being worse than last year. It's pretty hard to see that. It isn't that hard meeting or surpassing a 75-win season. How is the team worse? Their star closer being back alone should help them win some games. Scherzer (who is hurt again) was never his old self in 2023. Verlander only came back (and he's hurting now) mid-season. 

The usual spin doctors have a point. The rotation is decent. There are multiple #5 options. There should be some more (including prospects) available later in the season. I think the team has a reasonable 1-3-4-5. 

Yes, there does not seem to be a #2 as such, Mr. Q is more of a 3/4 type. He did play like a #2 at times last season. But, hoping one pitcher (it doesn't have to be the same one) stepping up enough to fill the gap seems not too hopeful. Diaz will help shorten the game. The team picked up a few good and/or promising bullpen arms.  The pen is reasonable. 

The line-up is largely the same. Marte's season will help decide as will the performances of various young players. Harrison Bader should do well in the field in centerfield. A key will be how the DH will play. They didn't sign one of the older vets for that role but Vientos and company have potential.  

The team should be interesting with prospects, old favorites, and new players to watch.  I think we can hope for .500 and dream for more. Last season, too much reliance was put on two overpriced old stud or "stud" starters. The team was right to cut bait and get some prospects. They went with short-term blue-collar type starters. If they do well, they can add at the deadline (if not go crazy). They are building for the future with a young head of baseball operations and an owner still only a few years in. 

In the past two years, there were times when I wanted them to do more. The deadline in 2022 was dubious. Keeping a non-performing DH for 2023 was annoying. If you have the position (and I still rather not), you need a good bat for it.  But, hoping everything went the right way after a bad first half (and a lackluster July) last deadline? Not the best approach.  

So, the deadline (though I hoped they got rid of even more) move to collect prospects and cut bait was fine. They tried to get a stud Japanese pitcher, but the Dodgers went crazy. More than one potential ace (or #2) was not signed by other teams either. I don't think anyone was really left on the table. The DH options were not must-haves for sure.  

The pick-ups were not "sexy" but overall were helpful. They even got a potential upside Japanese reliever. I don't think it unreasonable to hope they sneak in with a Wild Card. But, it won't be horrible if they do not. It's somewhat nice to be able to not sweat or be overly disappointed.  It also is not a "punt of a season."  It is a building year. 

More than once, a team played better than expected and got to the playoffs (or beyond) sooner than expected. The Mets did themselves in 2015. Jerry Blevins noted in a podcast that if everything goes right, he can see this team winning over 90 games. That seems a tad much, but hey, why not in the 80s? Severino, for instance, can bounce back. 

Let's play ball! 

ETA: Of course, now we hear Senga will be out for a significant period. 

Speaker Johnson: Christian Nationalism in the Speaker’s Office?

Congressman Jared Huffman started a Congressional Freethought Caucus. They are all Democrats and all House members but from a range of religious beliefs. He personally is a secular humanist.

Freedom From Religion Foundation this week had him on to discuss a white paper on the current Speaker of the House. Christian Nationalism is the belief that Christianity and the state should be one. 

The BJC (Baptist Joint Committee for Religious Liberty) strongly opposes it. You can listen to its weekly podcast, by two very reasonable sounding women. 

I wonder if everything cited, including the use of a painting of Jesus in a courthouse, is problematic. (To be clear, that's a minor thing on the list of particulars.) Also, the much cited comment about Mike Johnson being a "Moses" is a tad overblown.  

I think of it partially as a symbolic reference to his mission using the language familiar to his own personal beliefs. Many people feel some sort of "calling." It is correct to be wary about "God talking to you" since a person should have some humility in that respect. 

We need not worry about everyone who thinks they have a spiritual mission in life. Civil rights heroes can be labeled the "Moses" of their people. A personal belief that a governmental role is blessed by God (or some other divine being or "stuff") is not by definition troubling. In my view, "God" has various meanings.  

But, overall the paper makes a good case. Rep. Mike Johnson opposes the separation of church and state. And, his personal views include support of discriminatory policies, some directly arising from his religious beliefs. If his view of a "new Moses" means a governmental role that mixes church and state in a troubling evangelical Christian way, it is a problem.  

Religion is an important part of our lives, including those who choose not to follow a belief structure traditionally labeled religious. Freethought provides a path to applying it appropriately. As shown by the membership of the caucus, it can also be promoted by various religious beliefs. 

Religion Clause Blog, a good resource, reported on a recent protest by the caucus. Jack Hibbs, a recent guest chaplain, has Christian Nationalist beliefs. The full letter provides other problems. It also references a past denial of an invitation to Dan Barker (former preacher and co-president of FFRF) to be a guest chaplain. 

As Rep. Huffman said in an interview, he questions the presence of legislative chaplains. I also find them problematic though the Supreme Court upheld the practice. But, if it exists, he wants the chaplaincy to be applied in an evenhanded way. That is repeatedly an uphill battle. 

People have made invocations to start proceedings with a non-deistic message. It is only fair to include such people. To simplify matters, we can say around ten percent [over thirty million] of the country are atheists or agnostics. There is also a growing "nothing in particular" group (nones) with a mix of spiritual beliefs. 

Some people find it necessary to start a government proceeding with a religious ceremony. When the House of Representatives has a "pro forma" session, it includes the Pledge of Allegiance (with "Under God") and a prayer. The Senate does not, which means the whole thing takes less than a minute many times. The ceremony for some provides a fundamental symbolic and practical role.

The inclusion of all beliefs will as well. 

An Open Letter to Lawyers Drugs and Money Blog

I read various online sources to keep up with news, politics, legal affairs, and (to some extent) sports. 

I appreciate those who provide an option for me to comment. This ability has been reduced in recent years as those who run the sites feel unable to keep up with trolls and content deemed offensive/counterproductive. This is both understandable and unfortunate.

One of my favorites, both for the content and comments, is Lawyer Drugs and Money.  I appreciate both the content and the comments. I appreciate being able to comment. I have an evangelical side on that front. 

Of course, sometimes, I disagree with the content. I was not a fan of the idea it was stupid to enforce rules against steroids in sports. Or, that punishing the Patriots for a certain infraction was some great wrong warranted multiple posts. The "you don't have to read" reply is silly. Comments are left open. People can dissent. 

Nonetheless, I am more concerned than usual about multiple posts, from different contributors (not only the one I specifically dislike*), on political events. The overall approach simply is not helpful. I think it is counterproductive though they surely think they are helping.

Erik Loomis (whose regular entries on labor and visits to the graves of historical figures are excellent) seems to have moved on to "Biden is likely going to lose" mode. I have seen the sentiment in multiple entries. Perhaps, this is a useful psychological exercise to soften the blow. I don't know. But, I don't find it particularly helpful.

Anyway, a recent one warned people about voters (don't call them stupid! I get to call people stupid for other reasons though!) who will vote third party or whatever:

But there is a singular type of threat to Biden from the left and it is a combination of his policies toward Palestine and the importance of very specific purple states to the election.

I don't know how people will react to this issue since a lot can happen in nine months. And, I grant the concern. Still, a useful approach entails citing the multiple things he has done to help. Not just include a picture of Biden (looking a bit decrepit) hugging Netanyahu or something. 

Is this not a value of this sort of blog? Biden worked to obtain a temporary ceasefire to address human rights needs. He is supporting a two-state solution. He passed executive orders doing things like helping Palestinians extend their stays in the U.S. and penalizing wrongs in the West Bank. I have also seen reports about further efforts to work toward just resolution for both sides. Put aside the alternative (Trump) is horrible.

Furthermore, Biden is threading the needle here. There are two sides to close elections. If he is seen as anti-Israel, other voters can turn against him from the right. This balance is shown in another area where Mr. Loomis in a one-note way calls him horrible, namely, immigration matters.  

Ezra Klein is the second Times pundit to actually specify how and possibly with who Joe Biden could be replaced, which I sincerely respect more than pure Johnny Unbeatable wishcasting.

Moving on to Scott Lemieux (not a hockey player). Multiple comments, in my view correctly, strongly criticized Klein's take. His providing additional details does not really change it from "wishcasting," including some of the possible alternatives provided. 

Furthermore, Klein's reference to Ruth Bader Ginsburg is annoying. She died, allowing Trump the power to select her replacement. She was older and repeatedly had cancer. Is there some idea Biden is on death's door? The guy "reads" frail but there is no evidence of that being likely before the election. "Being another Ginsburg" here is a dubious comparison.

The blog post agrees that there is reasonable evidence that Vice President Harris is a somewhat weaker option as a candidate. This is far from surprising. Name a recent vice president who was a stronger candidate than the president with the possible exception of Joe Biden if Obama could run for a third term (Biden might have been a better candidate for 2016).  

A wider problem I have with these comments is that again they are incomplete. One commenter (Mark Field) in another context said that we should just attack Trump. I understand the sentiment. But, I think there is a place to respond to criticism as well as support our side. 

And, that is what is required here. Vice President Harris should get more of a defense. Heather Cox Richardson** in her excellent daily Substack referenced Harris:

At the Munich Security Conference, where leaders from more than 70 countries gather annually in Germany to discuss international security policy, Vice President Kamala Harris today responded to Trump’s recent attacks on America’s global leadership with a full-throated defense of global engagement.

People who want to keep up with the Vice President can also track statements posted on the White House website. Not surprisingly, one issue she has been quite vocal on is reproductive rights. 

I personally wish there was more, including an official schedule. Video of her presiding over the Senate, including providing vote after necessary tie-breaking vote to advance Democratic policies would be a nice touch. 

Overall, instead of just being concerned (one person on that blog sometimes seems to have two speeds, doom and saying doom is counterproductive), provide a reply. Show why Vice President Harris is doing her job. Thus, the possibility that she might have to take over at some point would not seem so bad. 

Finally, there is Merrick Garland. Erik Loomis has a post up basically saying "told you so." After the special prosecutor released a report saying Biden should not be prosecuted mixed with some choice Biden bashing that furthers favored frames, THREE members of the blog went after Garland. 

Talk about overkill. First, like their repeated sarcasm about "but Biden is old," this sort of thing can be counterproductive. There is no bad advertising, so they say. If you keep on referencing Biden being old, etc., even mixed with criticism of the coverage, the meme continues. The need to respond often is a defeat. And, at some point, it's belabored.

Second, the responses are too one-sided. Some comments (though the posts are catnip for the "fire Garland, that loser" brigade as if he did nothing for three years) did push back. Not just me. There is a path that allows for reasonable criticism. The blog's tendency toward sarcasm and satiric photos also can be too much. 

A basic problem here is that Garland himself is not solely to blame. I think overall (see also as a Supreme Court nominee) he has multiple good points. Let's move past that. 

First, President Joe Biden picked him, knowing he was a traditionist of a certain sort. If you wanted a strong reformer who would change "the rules," he wasn't the person to pick. Multiple other options (some wanted Doug Jones, a moderate senator from a red state) would have acted comparably.  

Special counsel rules are also problematic, even if they have some wiggle room. This is not a new thing. Again, there are two sides here. There is value in a conservative-leaning sort investigating Biden and finding him innocent of basic wrongdoing. Who do you pick in this situation? Someone that would be seen as on your side? 

(Also, Robert Mueller did good, including providing a case against Trump. He was a junior official. He could not prosecute Trump on his own. And, he was screwed by William Barr, who was specifically chosen for that reason.) 

The independent counsel law seemed like a good reform. But, there were problems, including conservative judges picking the likes of Kenneth Starr. Then, the law was allowed to run out. We are back to the administration choosing them in certain situations. There still are problems, including some of the people chosen. 

And, again, why not lead with the positive? We can quote the report (it's hundreds of pages long; it is not just a few choice anti-Biden parts) itself to show Biden supported the investigation and is innocent of wrongdoing. Post after post about old man GARLAND is helpful, how? 

To quote President Biden:

The special counsel that acknowledged I cooperated completely, I did not throw up any roadblocks, I sought no delays.  In fact, I was so determined to give the special counsel what he needed, I went forward with a five-hour in-person — five-hour in-person interview over two days on October the 8th and 9th of last year, even though Israel had just been attacked by Hamas on the 7th and I was very occupied.  It was in the middle of handling an international crisis. 

Again, as I noted in response to Mark Field, critique is warranted up to a point. It is fine for blogs to discuss the problems with the special counsel's report. Or, how Attorney General Garland is too moderate in response. And, so on. 

I think the takes repeatedly do not provide a totally fair account of what he did. But, a bigger problem is that it belabors one aspect of the conversation, furthering the doom in the process. There is too much of that. I again get the idea if Biden loses (please no), we will get a bunch of faux cynical realistic takes about how it was all so predictable.  

LGM is a successful blog. They get to write whatever they want. But, I do wish they provided a more nuanced take on things recently.  Provide a more positive, strong response to current events. Limit the promotion of the other side's doom and negativity. And, provide a more complete account.

Thanks for allowing comments so others can discuss these matters.  

ETA: Checking on Sunday, there is yet another post about "Biden is old" coverage. 

At some point, isn't this counterproductive? "Biden" and "old" are tied together as a given. People on our side then say "yeah Biden is old but." "Boy, is he old." etc. 

Why don't we just talk about President Biden and not act like the age thing is so bloody important? It is not going to change. Maybe, if WE don't keep on making it an issue, helping the meme, it will help? 

---

* I miss multiple women contributors, who provided foreign policy and social commentary in the past. One of them was replaced by someone I find not a helpful addition. 

** Fans of the film Heathers might remember her as the Heather who liked history.  

Odds and Ends: Mostly Election Related

New York Congressional Map

After the new Hochul additions to the New York Court of Appeals (highest court) made the difference, the districting of the state's House districts was resubmitted to the independent commission set up for the job.

We now have a map, with only one dissent, from the commission. The legislature now has to agree. This back-and-forth happened before, resulting in a final map the pre-Hochul Court found illegal. The result was a court-drawn map that helped the Republicans win Congress. I doubt it was the only thing, but it helped.

We shall see what happens with this one. It is perhaps notable that more than one top Republican (including former candidate for governor, Lee Zeldin) supports the map. Not a great sign, perhaps.

Trump Trial News 

The NY election case now has a late March trial date. Let's see if that holds. If it does, reasonable chance it would be the first case to be brought to trial. 

It's a helpful thing in that the general argument is that "yeah, he's probably guilty, but it's just too small fry." Toss in "it's novel." I think something is to be said about applying the law, even "minor ones," to Trump.

Meanwhile, some people are very concerned ("Who will tell the children?!") about Fani Willis' relationship ethics. Prof. Anthony Michael Kreis, a person I go to for legal analysis on Georgia matters, on Twitter basically said there was a lot of messiness, but it is unclear how the hearing taking place actually changed anything. 

Plus, the double standard (with racism and sexism) involved is rather offensive. People raise Trump being a sexual predator. Well yes. I'm not sure of the specific relevance to the election crimes he is being charged with. There are somewhat, including when election officials are targeted. But, it does remain as an overall thing above everything. 

Let's focus on the real picture here. We can go on and on about how she should have handled herself better. We can say that about lots of public figures. Bottom line, however, what relevance does this have to the fairness of the trial? 

ETA: A former Watergate prosecutor reaffirms the value of the "hush money " prosecution. 

Back in Trump's Russia 

Recent news includes a reference to Trump supporting attacks on NATO. Trump's support of worldwide authoritarianism is a major issue in this election. Russia helped him win in 2016. Trump's team helped them.

There is now news that Alexei Navalny has reportedly died in prison. I am rather surprised it took this long. A Putin opponent in prison always seemed like a dead man walking.

Recall that Trump's side cheers on his killers. 

Meanwhile, even if he is not doing enough, the Biden Administration is trying to promote international justice. The latest is helping Palestinians remain in this country. 

Note: I will likely do the SCOTUS update on Tuesday, after the order list drops. Recall Monday is a holiday. 

After Elizabeth: Can the Monarchy Save Itself?

After Elizabeth: Can the Monarchy Save Itself? by Ed Owens is an overall interesting book. Owens is a British expert and critic of the monarchy. 

He shows how the English monarchy used its role as a paternalistic family-based institution. They also used the media to do this, which also involved advancing the modern seedy tabloid press in various ways. Owens finally questions paternalism, including for charity, when such things (including health care) should be a governmental/public function.  

(Also, the history that shows the promotion of "family values" is a rather hypocritical one given the history of the English monarchy.)

The history (from the late 18th Century but particularly in the 19th as the power of the monarch truly declined) included some use of power beyond "the right to be consulted, the right to encourage, and the right to warn" in practice. This included things that were done behind the scenes. For instance, a recent disclosure pointed to a power to veto things that applied to the monarch, including environmental rules.  

Ed Owens proposes a change. The monarchy will be smaller (junior royals not included) and have less of a public role. The monarch's function will be to promote democracy, including ethical rules and promoting civic education. A Crown Commission would oversee such things with the monarch providing symbolic cover and oversight of some sort.

This change would be carefully handled. The alternative is Brexit, which was an uninformed action based on a single vote of 52% of the population. His proposal would be proposed in a two-step informed process. I have in the past felt Brexit was problematic in part because of how it was passed. Constitutional amendment processes (sometimes requiring two votes separated in time) provide a sensible alternative.  

The book also cites "Nolan principles" (it doesn't say who "Nolan" is) set forth by the UK government in 1995: selflessness, integrity, objectivity, openness, accountability, honesty, and leadership.

Finally, Queen Elizabeth played the "ostrich," not adequately following the lessons of past monarchs who realized they had to change as the public. The Crown had Charles constantly crying from the wilderness on that front. Let's see how much he actually changes things now that he has the power. 

[I recently watched Season Five. It was a rather depressing season that was too focused on downer drama. It also underlines the value of having some young characters -- 20s/30s -- among the plot lines. Diana was not that old but seemed so given her life's problems. 

Finally, the past seasons had more other stuff. The season showed a bit of that, including Yeltsin, but not enough. I fear when I see four episodes in the last season dealing with Diana's death.]

The book is helped by its short chapters. It was interesting to read about another culture though by now (especially after reading about The Crown) much of the material is familiar. Overall, I'm somewhat supportive of a monarchy as a national symbol. The British royalty has something to be desired, especially since a Queen Meghan is only a distant possibility. 

Mayorkas Impeached

The Democrats gained back a seat in the special election to fill the Santos vacancy. The Republicans made sure to re-vote to impeach Secretary of Homeland Security Mayorkas. 

This time (with two members of both parties not participating, canceling each other out), they got it through by one vote. Since the only other Cabinet member impeached raced to resign before the vote (the Senate decided they still had jurisdiction), this is the first sitting Cabinet member impeached. A bit of history. 

President Biden:

This impeachment already failed once on a bipartisan vote. Instead of staging political stunts like this, Republicans with genuine concerns about the border should want Congress to deliver more border resources and stronger border security. Sadly, the same Republicans pushing this baseless impeachment are rejecting bipartisan plans Secretary Mayorkas and others in my administration have worked hard on to strengthen border security at this very moment — reversing from years of their own demands to pass stronger border bills.

There were two counts:

ARTICLE I: WILLFUL AND SYSTEMIC REFUSAL TO COMPLY WITH THE LAW

ARTICLE II: BREACH OF PUBLIC TRUST

I referenced in the past the argument that this is an unconstitutional impeachment. I think a good argument can be made for that. I am inclined to think that the impeachment provision is so open-ended that it is something of a close question. Yes, I think it is fairly clear this is really a policy dispute mixed with an allegation of maladministration. Still, I don't know if this sort of thing (if backed up) would not qualify:

Alejandro N. Mayorkas has knowingly made false statements, and knowingly obstructed lawful oversight of the Department of Homeland Security (hereinafter referred to as ‘‘DHS’’), principally to obfuscate the results of his willful and systemic refusal to comply with the law. 

My philosophy is not to try to make a harder case than necessary. The move here is a question of prosecutorial discretion. Clinton was technically liable to impeachment. That didn't mean his impeachment was justified. I think that holds now. The policy motivation is important to address. But, I am inclined not to call it "unconstitutional." I accept it though.

[ETA: Here is more, including what should be done. Again, I am inclined to think there is a good argument to be made as a whole this was an illegitimate impeachment. But, there is too much discretion in the clause to be a slam-dunk.]

We will see how long the process takes including if there will actually be a trial. The desire is to do the minimum. So, an actual trial with multiple days of argument and such might not happen. There is no requirement that the v.p. presides (though Aaron Burr did when Justice Chase -- not that one -- was impeached). And the intent is to use the pro tempore. 

The whole border thing is mixed up with Trump and the 2024 elections. On that front, Trump on Monday (Lincoln's Birthday) petitioned for a SCOTUS hearing in the immunity case. A government reply is due in a week. Then, Trump replies. 

Let's hope this thing is done by the end of the month. 

ETA: The government reply was submitted today.

Also, to toss it in, this is some collection (partial list) of impeachment managers, including Liz Cheney's replacement: Marjorie Taylor Greene (R-GA), Andy Biggs (R-AZ), Clay Higgins (R-LA), and Harriet Hageman (R-WY). 

Updates On Recent Posts

The "wisdom of the stairs" (sounds better in the original French) means stuff we think about after the fact.

When write stuff on this blog, there is sometimes stuff I think about after the fact. I sometimes add it. This is more so when the subject is complicated, such as the recent Supreme Court oral argument. On that front, here is some more on the bogus concern about one state deciding a national issue. 

I have seen more complaints about Merrick Garland regarding the special counsel in the Biden records case. I continue to think belaboring the point as compared to emphasizing his innocence and overall abilities helps promote the narrative the other side wants to promote. 

Robert Hur's report has dubious aspects that have been covered by some outlets. We need to learn from the problems with special prosecutors, including the asshole in charge of the Hunter Biden matter. But, belaboring the issue does not help. Too much "Democrats in Disarray."  

The bottom line remains Biden is innocent, worked with the prosecutor, and so on. Garland also has done a lot of good. Plus, I don't see him going anywhere though maybe (he is over 70) a new attorney general (who people will complain about) will come in Biden's second term (knock on wood).

As to the memory business, "there is nothing new about Mr. Biden’s memory lapses, malapropisms and rambling, sometimes embroidered anecdotes." We know that about him. As a whole, it does not matter. He is a good president and (unlike past years) is president at the right time. 

The usual suspects will latch on to this (people are still sending memes of him sniffing hair) while Trump is out there acting unhinged and showing much greater signs of mental deficiency in various cases. It is what it is. We shouldn't help the matter by dwelling so much on it.  

People sometimes think they are being realistic cynics but might be putting on a pose that is not actually accurate.  

ETA: I noted that I would not provide a summary of the Super Bowl. Just to update that. The Harlem Globetrotters won again. After all these years, I shouldn't care, but yeah, I'm annoyed. Objectively, in my view, the predictable is not entertaining. 

And, that is what happened. I'm annoyed.

Killers of the Flower Moon

I did not see the movie but read the book it is based on. That would be Killers of the Flower Moon, an epic tale of murder and greed.

The Osage Nation reflects the tragic tale of many Native American tribes whose lands were taken and numbers decimated after the coming of whites. And, once they went to a reservation (or designated location), they were abused some more. 

This is not just a "whites are bad" story. Like fear of immigration, the tale of some indigenous group being overridden by newcomers is a worldwide thing. For instance, Aryans in Ancient India supplanted existing residents.

There is an additional tragic wrinkle here. The Osage were able to control their sovereignty somewhat more than other tribes. They had good representation and leadership. This allowed them to negotiate better terms, including better allotment terms and retaining mineral rights for their land. 

Unfortunately, the government still paternally controlled them, including requiring many to have white guardianships. These guardians regularly abused their fiduciary duties. Whites who married members of the tribe to obtain their oil wealth also regularly abused their privileges. 

If this was not bad enough, the book explains how murder (often by poisoning) was used to obtain the wealth of the members. The book and film focus on one particular rich landowner and his nephew, who married a Native woman. 

All three of her sisters and her mother died, and two sisters were clearly murdered (one shot, the other along with her white husband having her house bombed). The other sister and maybe her mother died suspiciously. The last sister also was likely slowly poisoned if saved. 

The FBI, partially as a way for a young J. Edgar Hoover to start his leadership on a good foot, eventually obtained partial justice. Nonetheless, the book shows that the conspiracy was a lot wider than the people eventually charged and prosecuted. This includes the murders of multiple whites who tried to help obtain justice. The early death toll officially was over twenty but in actuality might be in the 100s.   

The oil wealth, besides being misused, eventually largely ran out. The oil boom took place in a short period in the early 20th Century. The book suggests it ran its course by the Great Depression though oil to some extent continued to flow into the 21st Century. The ideal thing to do would have been to carefully invest the money.  

It's a horrible bit of history that is at least being made more well-known. Note that Robert DeNiro plays someone who was like thirty years younger at the time of the events. 

Also, the book drops the name of Charles Curtis, a part-Native American who was then a member of Congress. It does not reference the fact, but he later became Herbert Hoover's vice president. Basically a conservative guy. 

Meanwhile, this week's Svengoolie movie -- The Monster That Challenged The World -- was overall fun. The monster did not quite "challenge the world," but I forgive the title. 

SCOTUS Watch: Not Our Job Edition

Two Opinions 

The Supreme Court released two more opinions on Thursday. We are left with a few accounts of people there since there is no video. There is not even audio (until Oyez.com eventually releases it) of these announcements. 

Gorsuch wrote a unanimous one holding a statutory right to sue regarding the Fair Credit Reporting Act. Sotomayor had another upholding a lesser standard for whistleblowers to meet in another context. Alito (with Barrett) added a concurrence while also supporting the opinion. Yawn. 

Insurrection Orals 

On January 6, 2021, a mob of insurrectionists forced its way into the U.S. Capitol building and congressional office buildings and engaged in acts of vandalism, looting, and violently attacked Capitol Police officers.

    - U.S. Congress

The big news was the oral argument in the case challenging Colorado's blocking Trump from the ballot. New York's election officials (the two Republicans deciding the matter by law) for now allowed him on. It is now up to the courts. If we even have a primary since it will be obvious by then who the nominee is. 

A few professors might want have convinced themselves that there was doubt but we knew how this was going. The question was how and by how many. 

The joker here was Justice Jackson promoted the "president is not an officer as a democracy protective argument" (since it is apparently in doubt) bullshit. Really, Ketanji?*

Kagan was concerned that Colorado was deciding this question for the nation. They really aren't. States also have the power to decide qualifications that can turn elections and control of Congress or the presidency. 

Kagan wrote the faithless electors case noting the power states have over electors. The state legislature can choose the electors. One of the two cases even came out of Colorado. Lots of painful moments. 

The Slate duo correctly sneers at Chief Justice Roberts' concern about judicial humility NOW. Toss in some historical confusion, including not a word (unless I missed it) about how state legislatures used to select senators. 

Roberts made a comment about how the Fourteenth Amendment was about limiting state power. This is the author of Shelby v. Holder, which limited congressional power to protect voting rights in the name of federalism. 

The Fourteenth Amendment is ultimately about protecting rights and stopping any attempt to corruptly limit Lincoln's "new birth of freedom." States have a role. The very provision here applies to state and federal officials. 

I put a bit of blame here on the advocate (regarding the senators thing) though he did reference how different ballot procedures in the 19th Century made things different from today. Justice Thomas, who supposedly cares about history, didn't seem to care.

I'm still disgusted Vice President Breckinridge, later a Confederate general and Cabinet officer has gone down the memory hole. The "not an officer" dodge covers vice presidents too. 

Toss in Gorsuch's typical smarminess, including some scenario about Trump's immediate disqualification causing problems since then everything he did at the end of his term can be challenged that is a bogus concern. 

(Griffin's Case, the circuit decision by Chief Justice Salmon Chase getting so much attention, itself provides a means to address the matter. 

Simply put, everything an official suddenly found unqualified did does not automatically become void. This rule applies in various contexts, including marriages.) 

He didn't want to hear about other qualifications but we could think of some scenario where we found out a supposed president is not a natural-born citizen after they were in office too. He also tied his former clerk in knots by some "office" angels on a pin parsing.  

Appeals to a dubious atypical Chief Justice Chase circuit opinion might want to recall his position on legal tender (unconstitutional) or the Slaughterhouse Cases (in dissent). Or we have appeals to democracy from a justice nominated by a person who received a minority of the vote.  

Other than pushing back from excesses of the Trump lawyer, including a state being unable to remove someone who blatantly admits being an insurrectionist, he had a rather easy time of it. This is so even though he repeatedly led with his worst arguments. 

Justice Sotomayor was the only justice who showed some hint of not going with the herd. Please, write a separate opinion, if not a dissent, to not let the "reasonable" punt totally off the hook. Well-meaning justices like Kagan or Jackson will be tainted by the effort. 

The avoidance mechanism here might be something that somehow passes the smell test, but there was a lot of stink in today's argument. Historians and others have spelled out what the Fourteenth Amendment provision was intended to do. So little of this history was respected during the oral argument. 

The provision results in some messiness, including fact-finding issues of each state. But, again, states have power over electors, voting, and ballot eligibility in numerous ways that result in that. And, the Supreme Court has to deal with similar matters. They should not try to "gerrymander" (as Sotomayor noted) this one situation as an avoidance mechanism. 

As the state lawyer noted, that is a feature, not a bug. But, by then (as SCOTUSBlog noted) the justices were not really paying attention. The state was given ten minutes since the challengers were voters (Republicans and independents). The state had its own interest. 

Congress has the overall power to enforce the amendment in ways that are the supreme law or even to lift the disqualification. Congress, including when controlled by Democrats, didn't want to do either. 

But, it is not really up to the Supreme Court to save them. We might not be a "mature democracy," but we don't have a mature Supreme Court either. 

I also often remind people that things are complicated. There is a shame of credit and blame. A basic responsibility here is that Congress did not take this provision seriously. 

As one expert notes, the Supreme Court's concerns could have been addressed by national legislation. We can note (like for other provisions of the amendment; no enforcement to have due process rights or something) it should not be necessary. The point holds. I will point out the inaction on emoluments too. 

We knew where this was going. We still should not give them a pass. The fact that the first question was posed by Justice Clarence Thomas, whose wife was involved in the "Stop the Steal" efforts underlines this. 

An ethical Supreme Court would have decided this with eight justices. Why could they not rule 7-1 or whatever? Again, each justice is part of the conspiracy now. Too many people resigned to or even supportive of the result, will blandly let it be. They too, in their fashion, will be enablers. 

Let's see if they figure out to say "not our job" in the least pathetic fashion possible. And, how many people at least will be a bit upset about it.

Next Week

There are no oral arguments next week. The next conference (along with a non-argument public session) is next Friday. 

No conference today means no scheduled Order List on Monday. Nonetheless, we can have other news. Nonetheless, the Trump immunity D.C. Circuit ruling goes into effect on Monday unless SCOTUS acts. So it has a big decision to make. 

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* Justice Jackson's view of history often can provide a useful perspective. History is going to be part of the story. 

But, "Just So" stories can show up on both sides. Her account here had too much of that. 

There were better ways to punt the case than an appeal to "democracy" when the provision is in place to advance it. Along with most if not all of the other justices, she is too much concerned with her own view of the best result.