Heads I Win, Tails You Lose: Trump Edition

When I write these blog posts, other things often come to mind afterward. 

There is a concept known as the "wisdom of the stairs" regarding stuff you remember or know that you do not in the heat of the moment. The concept sounds even more impressive if you use the French (L'esprit de l'escalier). Impressive/pretentious, whatever works for you.

Some post-oral argument analyses of the Trump immunity argument at the Supreme Court point out a rather glaring thing. Trump's attorney during his second impeachment trial granted that he would be liable for criminal punishment for his actions. This was referenced during the court of appeals deliberation as well. 

[Chris Hayes provided video evidence.]

The concession was not only for "unofficial" acts. We were not talking about Clinton lying about sexual matters here. We were talking about Trump's wrongful interference with the passage of power.  And, Trump abused his office in various ways to do so. This made the whole thing worse. 

At some point, you are a sucker if you believe people. When they assure you that they are playing fair but are playing by "heads I win, tails I lose" rules, if you rely on them (or talk about reasonable possibilities), you might just want to be deceived. At this point, we should know the deal.

The Trump Administration repeatedly stonewalled when asked for documents or testimony. They cited executive immunity or some other form of execution power. They assured the courts and others that there was a check. Impeachment. 

When impeachment did come, the same stonewalling took place, including blocking witnesses. And, impeachment itself was deemed improper. Congress was doing it wrong. Putting aside the bullshit on the merits (down to the vice president's own brother -- a member of Congres -- being involved), there was no realistic chance that they would have done it "right" in a way the Trump side would accept. 

After Trump took part in an insurrection in January 2021, the House quickly impeached him, after Pence refused to take part in a "25th Amendment" remedy, arguing somewhat reasonably it was not intended for that purpose (think JFK in a coma or something). 

(A few people wanted them to go faster, which is not realistic. I have seen people who wanted them to impeachment mere hours after the attack. Maybe in a different world, but in this one, with a small majority, not going to happen.)

Senate Republican control ended on 1/20 with the election of two Georgia Democrats and the vice president providing the tiebreaker. The impeachment trial took place afterward. Some Republicans argued that a trial could only take place during the term of office even though one of the constitutional remedies is disqualification from future office. 

A free pass in the final days comes off as ridiculous here. Furthermore, it goes further than that. A person can simply resign. They could therefore under this scenario be totally free from the second half of the constitutional reason for impeachment (putting aside possibilities such as denial of retirement benefits).  

This absurd path was rejected the first time the House impeached a Cabinet member.  A resignation very well might guide some senators to deem a conviction as unnecessary. Nixon's resignation removed a major danger as well as implied some degree of guilt. Trump never resigned and never granted he was wrong. Unlike Nixon, he planned to run for re-election.

Republicans during the impeachment trial (including Mitch McConnell himself) assured us that the Senate not convicting would not remove liability. The courts could still deal with him. Moscow Mitch was quite passionate, especially for him, about that fact.

It will only shock the fatuous that the goalposts are moved again. Not to worry! The argument is that only official acts are subject to immunity. Nixon's official acts appeared to be subject to criminal liability. His "when the president does it, it is not illegal" is repeatedly cited as a horrible statement. We will now try to water down what "official" might entail. 

The special counsel side suggested there were some "core functions" that might be immune or maybe it was a very high test. I felt at the time this was a sort of trap. Start down that line, where do you stop? We were down this path during the Bush Administration regarding torture. 

And, the whole thing is tedious. Nominating judges is a core function. But, you cannot bribe people even there. To cite the most patronizing/condescending-sounding justice possibly ever (Gorsuch), we are slicing the baloney rather thin.  

The game that will be played now is that Trump won't really be "above the law." We will just have to wait while the case is sent back to apply some new (made-up) guidelines about what is truly official acts and so forth. Like his dude process during the impeachment process, doubtful in the extreme that this will be done the "right" way for the usual suspects. 

To summarize. Impeachment provides a check. Impeachment has to be done "right." The criminal (and civil) process provides a check. Unless it doesn't.  Experience has shown that impeachment is basically for judges who were prosecuted with a few notable exceptions that do suggest it might be a bit stronger than that. What will restrain presidents? 

Oversight is one check but again Trump blocked it in various respects. The first impeachment had a lesser recalled count addressing just that. Media coverage and other checks have their problems too. Granting even powerful dictators will have practical checks, our system has more checks that warrant our respect. They should not be artificially stripped of their power.

Mix in the electoral check (putting aside that the Constitution does not give the people absolute discretion there) which has its own issues as we saw twice already, down to Russian interference with the Trump Administration enmeshed in the process (see, e.g., the Mueller Report, Senate investigation, and so forth).  

We are repeatedly told that "courts won't save us" or "the Constitution won't save us" as if people like myself naively think otherwise. I am also not sure how many have many "illusions" about this current Supreme Court. Did not stripping abortion rights show us that? 

Courts still are an important part of our system of government. We should expect and demand that they function in a halfway reasonable way. We can strongly speak out when they do not. The system is flawed. We know this. We know it when we protest an unfair criminal prosecution. 

As people continue to try to argue for reasonable results, let us admit the lack of good faith. The Trump side at times truly shows their cards. We see this regarding other things too, including restricting abortion. The average person does not want an extreme position there, however, so we are assured Trump's side is being reasonable. Thus, there is some life or health exception. We have seen the problems of that in practice.  

When the goalposts keep on being changed, the bottom line is that the Trump side is trying to keep him free from any significant consequences. After all, they want him to win the presidency again. Civil consequences are allegedly unfair. He could not even be asked to handle sensitive national security documents carefully.  

And, four to six (in varying degrees), justices want to help him. I will toss in three more regarding the Colorado insurrection case. The liberals there talked a good game about leaving open consequences. But, what is the net value if they closed off the one (state enforcement) that was actually realistically possible? 

As the goalposts keep on changing, at some point what is this but a willingness to enable him? 

Films (DVDs)

A red cow has special significance in Jewish practice as a sacrificial animal and a sign of the final days. 

Red Cow involves such symbolism in an Israeli drama about a teenage girl living with her father in an illegal settlement. She falls in love with a visiting young national service teacher. Meanwhile, she has some conflicts with her father. Her mother died during childbirth.    

The actress is closer to thirty than seventeen but mostly pulls it off. This Israeli independent film provides a well-acted (the love interest is a bit underwritten at times) look at another culture. I was confused about the ending, where she goes on a trip (was it a long one? would she have been gone for a while?) to see a performance in the city.  

Mamma + Mamma (Mom + Mom) is a 2018 Italian film about two lesbians who decide to have a child. The film is based on the experiences of the director (one character has her name). 

It is a drama with some comedy about their struggles to have a child, including raising money to do so in Spain since Italy does not allow IVF for gay couples. We see some of the family of one of the women, including a supportive grandfather. There are some dream sequences.  

The film is a short 81 minutes and felt it probably could have been a bit shorter. Overall, it was a charming and well-acted film. 

The Italy of the film has some picturesque flavor including the grandfather's farm but other than needing to go to Spain to do the procedure, there is a generally universal feel to this film. Perhaps, the fact the two living with a guy (who has his own girlfriend) suggests a European flavor though I would not choose Italy as the place for that. 

Both films have good, clearly understandable subtitles. Sometimes, foreign films can have subtitles with a small font and/or in a color that makes it harder to read. My eyesight isn't great and I was fine with these subtitles. I don't mind foreign films if the subtitles are easy enough to read. 

I saw You're Next mentioned in a book about horror films. I did not manage to complete the book but did check out the film. The book defined "horror film" broadly and this one is not about a monster.  

We have a type of "10 Little Indians" scenario here where characters are threatened one by one. Helpful to have grown up in a survivalist family! 

I sometimes like horror films and/or in jeopardy films. Megan Fox went all in as a wife handcuffed to a dead boy in Till Death. I enjoyed most of the Chucky films (tired of the series), both the mostly straight original, and as the films became more comical (the last two went back to being mostly straight; the third one was pretty lame and I didn't like the last one much). Some classic horrors (some on Svengoolie) are good.  

Slasher films? Some are enjoyable enough. They often don't have enough content to keep you interested the whole way simply as a film. I tried watching the first Friday the 13th and thought that way.  The film was okay enough (especially when you remember that at the time it was one of the first modern-day slashers) quality-wise if somewhat basic but it was boring. 

Some slashers mix in humor (the second and third Sleepaway Camp films come to mind). There was also the traditional gratuitous nudity. There were lots made. Some are crap. That is true for many genres.  

BJ Colangelo and others have taken such films seriously. She used to have a blog named after the original title of the infamous I Spit On Your Grave, a film that deserves some respect as a dramatic effort. I realize it is also an exploitation flick. I speak of the original. The remake came off as an overproduced fake effort. Skipped the sequels. I did not see the long-delayed sequel of the original which was way too long. 

This film received some good reviews as a novel twist on the genre. It is generally well-made with a good lead. I think the best way to talk about the whole thing is that it's functional. It starts with a prologue with a couple having a quickie with the woman not enjoying it much. Some of the characters don't have much sense as is common in films of this sort. 

The final kill is accidental. The DVD had two commentary tracks. 

SCOTUS Watch: Final Oral Arguments

Book Review 

Demand the Impossible: One Lawyer’s Pursuit of Equal Justice for All by Robert Tsai is about Stephen Bright. Bright is a movement lawyer who is especially concerned about the death penalty. He was 4/4 in cases at the Supreme Court though the last one (in the Gorsuch Court) was 5-4. 

The book is a quick read (under 200 pages) with a chapter for each case. We learn about the cases, including learning about both sides of the oral argument. A few more pages are provided about the overall concerns. The title suggests the point of view. If you generally support the idea, that's fine, though even if you do, there is a certain blandness to the whole thing. 

It's a decent book. It tells us some about Bright's life. Still, the basics can be summarized in a magazine profile of the man. I was underwhelmed by the lack of complexity of the book. A bit too much "talking to the choir." 

You can check out a video with the subject and author here.

Oral Arguments 

The last week of oral arguments of the term covered homelessness (Roberts for some reason decided to be a bit of a jerk here, including multiple times asking if being a bank robber was a "status," suggesting his level of respect for the argument that homelessness is), emergency abortion care (women justices showed the most concern for the patients), and the Trump immunity case (women justices showed the most sanity).  

Barrett has a lot to answer for, including Dobbs v. Jackson, but if you are stuck with a Republican nominee, she has her good points, especially in oral argument. I saw someone I knew online from back in the day who is a strong critic of conservative courts agrees she was the best choice for the Kennedy Seat. AB is developing a smooth writing style too.

The last two have a certain high anger potential. The liberals at times brought that out though I expected more sometimes. But, they are working within the system. They are these people's colleagues. Still, this Talking Points Memo comment in response to the decent chance that the Trump immunity case will bring delays into 2025 is appropriate:

Everything comes into conceptual alignment if we understand the Court’s corruption: corrupt in its construction, corrupt in its jurisprudence, venally corrupt as well, though that is the least of its problems.

The word "corrupt" has a dark flavor to it. Sometimes, it appears unfair, at least to that breadth. Nonetheless, how many cases will it take for the inherent problems to be clear? How many handwaves? How much of this crap, which is underlined by being expressed by a voice of liberal reason. 

The 14A, sec. 3 case was accepted by some liberals, even though it was based on bullshit. This case was different! They would leave the D.C. Circuit ruling (which took too long as is given the stakes) in place! I expect more attempts to find the bright side, especially since the final opinion will likely reject full immunity. A human effort, sure, but at some point we have to admit the dark side. 

The special counsel asked the Court to take this case in December 2023! Instead, it delayed the oral argument to the last possible moment (even having a rare Thursday oral argument). The hopeful voice of reason, Chief Justice Roberts, for some reason found this statement from the court of appeals [which received much praise for its well-crafted opinion] problematic:

A former president can be prosecuted for his official acts because the fact of the prosecution means that the former president has allegedly acted in defiance of the laws.

This was labeled a troublingly tautological statement when someone with a constitutional duty to faithfully take care that the law is being executed is prosecuted when they fail. 

On that front -- like when Barrett reminded Trump's attorney that the Impeachment Clause is general (including applying to the Supreme Court) -- Sotomayor appeared to be being quite personal when she noted:

In the end, if it fails completely, it’s because we destroyed our democracy on our own, isn’t it?

The path began with Trump v. Anderson, the 14A, sec. 3 opinion involving a Court that released a pathetic unsigned opinion that they didn't even show up to hand down. 

Such cowardice should be a badge of infamy that stains their reputation until redeemed. The hope was that the liberals would trade that off for sanity in this case. The sanity already was lost. We are left with determining how bad the result will be. 

The aggravating thing is that there is a feeling of helplessness about what you can do. A few people talk about Biden expanding the Court as if he has magical powers. I am annoyed by this. It takes only a basic understanding of how our system of government works to see the problem. 

A few passionately demanded (including one liberal critic who annoys me, to subtweet, so to speak) that Democrats do it as if a 50-50 Senate with the balance of power in Manchin and Sinema had any hope in hell. You are not going to seriously change the nature of the Supreme Court -- and it being necessary doesn't change that -- with razor-thin majorities.  

The bare minimum here is the need to retain control of the Senate. A tiny minority still will only do so much, probably, but without Manchin and Sinema, there is more of a chance for limited majority rule. 

We can imagine the possibility of breaking a filibuster for something. I am not talking about expanding the Court here. Perhaps, something like voting or abortion rights. At the very least, confirmation power will be retained. Again, who blocked Garland and gave us those three Republican justices at the end of the day? 

This Court is in large part a result of Republicans controlling the Senate. Democrats with a trifecta might have a chance. Uphill battle. There are also other things to do to put pressure on the Supreme Court. Liberal states, the federal government, and the general public have various techniques here. I also want stronger leadership on the Senate Judiciary Committee. Horrible moments at the Supreme Court remind us of the battle in front of us.  

Meanwhile, though a few liberals "meh" it, Trump was watching during the New York criminal trial while a National Enquirer executive provided an in-depth conversation of a conspiracy to criminally hide information from the American electorate. 

I KNOW -- never believed otherwise -- the ultimate test is in the ballot booth. But, we have a right to demand our other institutions, including our courts, do their part. And, react when they fail us. 

Finally, we should be able to watch a video of this "civics lesson," especially when visual reactions of justices and others provide a complete understanding of the happenings. Video helps people understand what is happening, some people more than others. Like opinion announcements, justices showing up in open court with the two advocates is done since it supposedly adds to the overall experience. 

(C-SPAN -- which it does not always do -- had the oral argument [with pictures of the people involved] on one of its television channels. It often only has it available online.) 

Upcoming 

The Supreme Court now full time will focus on opinion writing. The next oral argument will be in October. 

They will continue to have [Thursdays instead of the usual Fridays] conferences and release order lists. There is no scheduled conference (and corresponding order list next Monday) for the first week of May. 

The "Today at the Court" summary (click 4/26 on the calendar on the SCOTUS website) for Friday tells us that we "might" (have not seen a cancellation yet) have opinion announcements on May 9th. I would appreciate a brief press release (there is a separate "news media" pulldown list) providing such information to promote transparency. 

Miscellaneous orders and other ongoing handling of pending cases will continue as usual.  

The ExVangelicals

There are various books about people who struggle with growing up as evangelicals (or other conservative faiths). The books often discuss painful and regularly abusive childhoods. The authors have traveled various distances from their faith. Many still consider themselves Christians.

For instance, Elizabeth Esther (who has a Substack) wrote about growing up in the faith and a second book about "spiritual sobriety," a form of moderation. She also discussed her struggles with mental health. From what I can tell, she is still a Christian, just not the cultish (as I recall) version she was raised in. I don't recall much talk of her politics. 

Rachel Held Evans* is a well-known figure, especially given her passionate drive to discuss her beliefs. Also, tragically, she died from a sudden illness before she was forty. Her last book (also a separate children's book about God) was published after she died. The book was edited by a friend who is an "exvangelical" (to name drop) as well as being gay. 

(I'm wary about its somewhat assured tone concerning her wholehearted faith, especially given her overall doubts. I wonder if she would have hedged more in her final version.) 

This book, subtitled "Loving, Living, and Leaving the White Evangelical Church" (a telling use of race; white evangelicals are very different in various respects, including politically, than black evangelicals), is also written by someone who grew up in the faith. She includes some of her own experiences though less from her adult years [her journey from the faith is somewhat vague; she is an evangelical in college and marries and then goes into less detail, especially involving her marriage and children].

A word that comes up repeatedly is "deconstruction." Deconstruction is "the often painful process of rethinking an entire worldview and identity that was carefully constructed for them." 

The book covers standard ground, including sex, marriage, childrearing, and faith issues. It also talks about various people who have left the faith and their struggles. For instance, she notes she and her brother (she has two sisters, who we don't really hear much about) have had psychological and even physical aftereffects from some of the preaching about things like the end times (quite graphic). Their parents also used corporal punishment. 

The author of the national political correspondent of National Public Radio (which I should be a typical listener of but have rarely listened to), including during the 2016 Trump campaign. So personally and professionally, she is a good person to cover this ground. 

The book is well-written and covers a good amount of ground. By the end, it was a bit repetitive. I have read about the general material so it was not novel as a whole for me personally. That is standard on many topics for me by this point. For instance, a book about the Supreme Court is going to cover many things I know about. Still, like refreshing ground in school, it is a useful enterprise with new nuances and personal reflections. 

A general theme in many of these books is an empathetic, open-minded, and humble view of faith, beliefs, and humans. Evangelicals come in various shades. One evangelical historian (John Fea) spoke of the about 18% (comparably about the number of Republicans who didn't vote in the recent Pennsylvania primary) against Trump. This book focuses on the median group who are firmly sure about their faith. They feel passionately that they are right and are constantly being attacked for their beliefs. 

I try to follow this general thread. A consistent approach would include care in not being too full of myself regarding how much I succeed. Nonetheless, yes, I try to respect the place of religion and spirituality in this country. Some understandably are wary, angry, and disgusted at "religion." 

But, that term is just too open-ended, and humans are too complicated to not see the shades of gray. These books show this. The book addresses a community that has millions of people. How many millions is unclear but the growth of an unaffiliated "none" category (not the same as atheism or non-belief) that might be over one-quarter (maybe approaching one-third) of the popular include many former evangelicals.  

This book is a welcome addition to the conversation. 

---

* ETA: I checked the Rachel Held Evans book summary that is linked and it looks like the editing software used then was somewhat substandard. 

Some of the errors picked up are unnecessary or sometimes even annoying [I see nothing wrong with them] but some should have been flagged the first time. I also have some colloquial habits that I never got past. 

Okay. So, yet again, all honors to editors, and it would be nice to have one. I also checked the Amazon customer reviews of the children's book about God. The best approach to the 1-3 star reviews annoyed about "non-biblical" or doctrinal problems is to remind these people Rachel Held Evans was the primary author. She was not Catholic. She also did not share a conservative evangelical take on the Bible. Know your source. 

My favorite RHE book was Inspired, an interesting take on the Bible. The Bible is filled with stories. Television and other platforms should do more with them. Also short story collections with various themes. Transforming: The Bible and the Lives of Transgender Christians (nonfiction) suggests the potential. 

SCOTUS Watch: Orders & Bad History

Dobbs and Bad History

The Supreme Court these days is big on "history and tradition." 

It is used to address the religious clauses, the Second Amendment, and to overturn Roe v. Wade. History and tradition come off as a form of originalism. Not quite. It is not the same thing. Still, like "textualism" and "originalism," the two concepts are often promoted by the same people. 

Originalism ties itself to specific points of ratification. This leads to certain complications such as the fact things changed between the Bill of Rights and the Fourteenth Amendment. These days, however, a "two-track" system for federal and state law generally is disfavored. A "living" model avoids such problems. 

Originalism is bad constitutional law. It is impractical, unnecessary, and bad in principle. We should apply the Constitution by current understanding, which we built up over time with new knowledge and experience. Meanwhile, we also have multiple legal techniques to use.

I have a degree in history. History is important. It's part of constitutional interpretation. Trying to use it as a primary means to solve recent decisions, especially if the "history" is a point in time of the distant past, is a fool's game. People have spelled this out in detail regarding the Second Amendment. 

The conservative usage of history is more troublesome when they simply do history wrong. This essay (with a citation to a longer paper) shows how Dobbs screws up 19th Century abortion law. See also here, which uses Lawrence v. Texas as a case study of how to correct the misuse of history. 

The essay explains the different context and the often limited nature of the bans. I would mix in more about how prenatal life (helped by an improved understanding of prenatal development) was part of the story. It doesn't change the bottom line that much. 

Justice Jackson has begun trying to provide a "liberal originalism" to provide a counterpoint. Be wary but it can be interesting. I am interested in possible separate opinions in upcoming cases involving guns, abortion, and so on on this front. Like religion, history, and tradition is not just a field for conservatives. 

Order List

There have not been any additional orders since last week after the trans-related case. The next execution scheduled is May. There have been additional "relists" (a case was scheduled for a conference and then "relisted" again) after a notable lull. 

We have a four-page Order List. As usual, there are a few interesting tidbits. Why was only one of two "motions for leave to proceed as a veteran" granted? Why did Roberts not take part in a case? Kavanaugh (without comment) noted he would have taken a Federal Arbitration Act case.

The Court took two cases (granted cert) for full argument. One was a technical case involving attorney fees. Another involved the question if a federal law was correctly applied to so-called certain "ghost guns." They have not handed down the bump stock opinion from this term. 

Upcoming

This will be a busy (four days) week for oral arguments. The big "hot button" cases involve homelessness and the Eighth Amendment, abortion and federal law (emergencies), and Trump immunity. There is also a National Labor Relations Board case that might be of some note. 

This is the last week of oral arguments. May and June will bring a range of opinions since only around a third of them have been released. Meanwhile, other stuff will happen. 

Strict Scrutiny Podcast now has YouTube videos so you can see some of the reaction shots and so on. 

The Man Who Never Was

I enjoyed the B-film Roughshod with Gloria Grahame as the best aspect. I checked to see if the library had other Grahame films.

The Man Who Never Was is based on a true WWII attempt to throw the Germans off the scent of the British intentions to invade Sicily. A dead body would be planted so that it would wash up in Spain, where Germany had spy coverage. The body will have papers suggesting the invasion would be some other place. I read about the caper in some spy-related book.

Clifton Webb leads the cast as the person leading the effort. The film provides various bits of dramatic license, including Graham Greene's role as the roommate as a woman assistant to the intelligence operations. Lucy is in love with a flyer and provides the text of a useful "personal letter" planted on the body. The letter and a later reaction are true to her life.

The film is a well-crafted tale. It is an enjoyable spy procedural with Greene adding an important touch of emotion. The father of the person whose body is used also has a touching scene. The German spy (a dramatic creation) looked familiar. He was the Roman friend/rival of the lead in Ben Hur. 

The real-life person Webb's character is based on has a cameo in the film. He is also Jewish in real life. The film does not include this tidbit. Yes, there is no compelling reason for it to come up though it easily could have. They invented multiple things. Perhaps, some movie viewers simply would not believe the richness of a Jew being behind it all. 

Mayorkas Impeachment Trial

After one more Republican showed up, the House managed to barely impeach -- for the first time (the last time the guy resigned first) -- a sitting cabinet secretary. 

The House referred the impeachment to the Senate for trial. So, it was time for a trial. The president is not involved, so the vice president or president pro tempore (as here) presides. 

Sen. Schumer offered to allow the Republicans time for debate over procedures, allowing them to talk some. Republicans wanted more. Schumer immediately brought a vote for a point of order that the impeachment counts were unconstitutional. I think that is iffy but maybe. [One vote for each count.]

Republicans tried to delay. There was a series of strictly party-line votes though a few Republicans had already said they opposed a full trial. They all went the way of the Democrats. 

Murkowski voted "present" for the first count, “willful and systemic refusal to comply with the law," and with the Republicans for the "breach of public trust" count. 

Romney -- who said beforehand he didn't think the two counts met constitutional muster -- released a statement he voted with the Republicans since he wanted some debate. Schumer offered that. The Republicans wanted more. The Democrats already made their argument on the point. It was not some big secret. 

That's it. Trial over. About as much as it deserved though I can be convinced the Constitution suggests a real trial of some sort was appropriate. Still, again, Democrats did offer Republicans more debate, and they played politics about the whole thing. The whole thing is a sham, so the dismissive approach to provide a precedent when blatantly political "no confidence" impeachment votes are involved was acceptable.

The fear is that later on Republicans will try to do that tit-for-tat even when it is not justified. We will take that when it comes. 

SCOTUS Watch: Opinions and Stuff

Justice Thomas, without explanation, missed Monday's oral arguments. He was back on Tuesday, which involved not only him announcing an opinion, but also a 1/6 related case. A case, given his wife's involvement, he probably should have recused from. A past case of unexplained absence is unclear. He will take part in the cases he missed.

Trans Case

I will allow Chris Geidner (various bits put together) to explain:

On Monday, the U.S. Supreme Court — over the dissent of the liberal justices — allowed Idaho to enforce its ban on gender-affirming care for minors for the first time against anyone other than the two transgender minors challenging the law. 

Under the court’s order, the law remains blocked as to those two minors. This was a ruling about the scope of the relief issued by the district court in the Idaho case — a statewide injunction of the entire law — in light of the plaintiffs in the case

Also Amy Howe: 

But here, the challengers emphasized, the district court concluded that the Idaho law should be temporarily blocked in its entirety to make sure that the challengers can continue to receive care. Otherwise, they said, the two teenagers – who are proceeding anonymously – will have to reveal their identities whenever they seek care.

Gorsuch (with Thomas and Alito) concurred with a special focus on criticism of universal injunctions. The alleged "spot-on" nature of this concern generally is less clear here. This is not a typical national injunction that causes concerns. As Jackson (with Sotomayor) notes in dissent, it's a fact-based dispute if this specific one is warranted. 

Kagan would have denied the stay of the district court ruling but did not otherwise have anything to stay. Roberts was totally silent so technically could have not been involved at all. Kavanaugh with Barrett concurred and discussed what should be weighed in cases when the Court is asked to step in. He also referenced the concern about universal injunctions. But, had more on the merits. 

I find the choice of means to address this issue, in a fractured way (3-2 or 3-2-1), in a trans case with these facts dubious. Other children in need of protection can potentially bring a case separately. The case has limited procedural effect. CG was generally moderate in his tone. Still, it rubbed me the wrong way.  More shadow/emergency docket monkey business.

Anyway, we continue to wait for a substantive decision from the Court on various pending major trans cases.  Nonetheless, the practical effect here will harm Idaho trans children in need of treatment. 

Opinions 

[Tuesday]

Jackson had an opinion upholding employment benefits for service members as applied to two provisions. Kavanaugh (with Barrett) concurred to flag his concern for a "veteran canon" which puts a thumb on the scales for veterans. Notes it has equal protection issues. Thomas (with Alito) dissented. 

Thomas had his first opinion of the term. It was another short opinion (a little over six pages with two photos) avoiding a broader result. "It would be imprudent to decide that question without satisfying ourselves of the premise that there is no cause of action."  The Takings Clause claim could be raised in the state court.  Another narrow ruling. 

[Wednesday] 

Kagan with a unanimous opinion (Thomas, Alito, and Kavanaugh wrote separate opinions concurring in judgment) held that an "employee must show some harm from a forced transfer to prevail in a Title VII suit, she need not show that the injury." Involved a sex discrimination claim.*

Steve Vladeck flagged on Twitter that Kagan has yet to be in dissent this term in fully argued opinions. Alito has also not written an opinion of the Court. Both held today.

Sotomayor with a unanimous opinion (13 pages) concerning federal criminal procedure rules involving forfeiture procedures. The employment opinion was flagged as a good one. This one is not likely to get much attention.

We now have eighteen opinions. I gather this is not even a third of the total number. And, it is mid-April. 

Most of the cases -- the Trump insurrection case is a major exception -- have been limited. There are many hot-button cases this term. Maybe Alito will write for one. 

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ETA: Professor Murray on Twitter flagged Kagan's opinion (noticeably rejected by three conservatives) as a way to avoid the use of racial discrimination claims as a means to attack diversity programs. 

Her "some" harm rule might help there because employment actions to further diversity would not truly be "harm" even if it meant a change of employee duties. 

We will see how the lower courts handle this. See also, this article on the matter. This shows the many complications of rulings, including specific aspects that might not cause difficulty at that time. Different facts can result in a more divisive ruling. The nuances of the ruling are the rub. 

Trump Manhattan Criminal Trial Begins

Multiple Slate people have pointed out that the Manhattan criminal trial, which officially began yesterday, has merit and bite. Some are on the train now, especially with all the others delayed. I supported this from the beginning.

Trump being brought to criminal account matters. He is upset that he needs to do basic things like show up every day like some average defendant. Consequences are for other people, like Michael Cohen, who was prosecuted for taking part in this scheme.  FT. Equal justice for all. 

We can debate the political benefits to one or the other side here. Reports of him dozing off ("Sleepy Donald") don't sound helpful. Some polls suggest various swing voters care about him being prosecuted. If he somehow gets off, that might be positive. Look how OJ (died) came off when that happened, correct? I don't think it turns on this but multiple "meh" sorts say this is what really matters. If he is defeated in the fall. So. 

One person on Twitter said that his civil judgment for his financial fraud should get more attention. But, this is part of a wider whole. The claim is that he broke financial regulations in the promotion of election interference. And, yes, we can call it that. He was trying to hide information relevant to the 2016 election. The rules didn't apply to him there. Rinse/repeat.

[See also, his campaign engaging with the Russians and denying that they were doing so and/or being helped. I think the whole thing is all connected. We can talk about them all. Instead of helping him by belittling it! STOP!]

I find Rick Hasen's handwaving wrong and annoying. "It might be overturned on appeal." When? 2025? We are seeing now how many delays are in place in the other cases? So far, Trump has lost legal challenges, including trying to delay or get around a gag order, in this case. And, I guess the civil fraud case is bad too (as some say) since it might be overturned too.  

The limited prison time involved also is cited. So what? I still doubt the guy will ever see a jail cell. A conviction matters.  Once we have a precedent of a criminal trial, the others can be more smooth going since it is no longer a totally novel thing. 

It won't push the envelope in the polls that a candidate is a criminal, as part of a scheme that continued while he was in the White House, because the penalty might only be for a few years or so? Well, if people like that asshole (is he still pushing his "Democrats filibustering Gorsuch has no value" line?*) belittle it, maybe. Who knows? It won't alone be an issue!

Hasen years back granted Trump would be liable under federal law. It was blocked because he was in office, Barr was the attorney general, and for other not totally clear reasons. Now, after someone else got punished, the chance to prosecute should be ignored? It is "meh"? Trump gets off again.

(Don't say all of these people are soft on Trump. They will get mad. They might have a "baby bear" perfect way to do it. Like a federal path blocked here. Or, the national secrets trial blocked. Or. When something is actually brought to trial, it's not the way to go.)

Can I have a list of crimes Trump has done that we should not prosecute since it is so small potatoes? My take, as a resident of New York (it is "People of the State of New York v. Trump"), is that breaking state law to cover up something as part of a scheme that your lawyer was prosecuted for deserves to be prosecuted. 

He is being forced to actually restrain himself (up to a point) like other criminal defendants. I think of this as a sort of "undercard" prosecution. It is less important in large part because he did so many bad things. A typical former president charged with this sort of thing could be in a lot of trouble.  

Like his "grab her by the pussy" comments not mattering enough, we are pushed to normalize him so much that this first criminal trial of a former president (or whatever he is) is treated as a "meh" by some people.

Not here. I am not on the bandwagon, which always finds a way to belittle attempts to obtain some justice and consequences. People belittled both impeachments. The Georgia trial is now about the prosecutor. Judge Cannon's blatant bias is granted and people still say it's silly to think she should be removed. Not me. 

===

* No, I am not going to let that one go. He repeatedly tweeted the piece he co-wrote about that business and it pisses me off.

I respect Rick Hasen but you can still disagree with people you respect. For instance, he thought it a bad strategy for the Democrats to support a big election reform package. He wanted a "skinny" one. 

But, there was no actual chance that the Republicans in the Senate would support that. So, you are in effect negotiating against yourself, instead of having stuff you can compromise away if you could obtain Republican support. People noted this at the time. 

I felt it clueless. Hasen is also at times easily triggered. A fellow professor said Hasen is usually smart but is not here. Hasen made out as if the person said Hasen was not smart because the two disagreed over something. Strawman. He thinks -- on the merits -- Hasen isn't being smart about a specific thing. 

The Didache and Tradition

I have read The Didache: A Window on the Earliest Christians multiple times. Perhaps, I should read it every five years or so. 

One theme of the book is that church tradition is a developing thing. The flyleaf has an author summary that touches upon this:

[Thomas O'Louglin's] research explores how our understanding of Christian belief can be enriched by seeing how individual expressions of that faith such as the Didache, can be located within the dynamic life of the communities that produced them. 'Tradition' is not, therefore, a weight from the past that pulls a community backwards, but rather is the life of that community, constantly seeking to reinterpret its inheritance in light of its current experience and hopes. The historical theological's task is, consequently, that of uncovering how a community inherited, lived, shaped and handed on its vision. 

The current conservative supermajority favors using "history and tradition." It is wrong to use only one doctrinal tool. They also used it in a slipshod way. If used correctly, it is part of the answer. As Justice Harlan noted in his seminal Poe v. Ullman dissent (is it bad law now?):

The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.

Justice Brennan also (from the liberal side):

The document that the plurality construes today is unfamiliar to me. It is not the living charter that I have taken to be our Constitution; it is instead a stagnant, archaic, hidebound document steeped in the prejudices and superstitions of a time long past. This Constitution does not recognize that times change, does not see that sometimes a practice or rule outlives its foundations. I cannot accept an interpretive method that does such violence to the charter that I am bound by oath to uphold.

(O'Connor and Kennedy rejected the "high Federalist" approach; Kennedy regularly spoke of developing tradition.)

Didache ("Teaching") is an early Christian guidebook. It is estimated from around 50-120. It is likely a reflection of Christian practices (which were far from fixed at this early date) from before Paul died in the mid-60s.

The first part is a list of instructions to follow "the Way" (a reference found in the Acts of Apostles). The book notes this follows Jewish principles that hold that we have a moral choice between good and evil [not fate], community responsibility, a relationship with God, and that doing good is possible. Among the "don'ts" is abortion. Whatever that might entail.

Once you know the rules, you can prepare to be baptized, a pre-existing Jewish ritual. Circumcision or kosher rules are no longer ways to show you are among the community. One theme is that past practices might be followed for new reasons. Didache also generally doesn't go into much detail. There is a lot of flexibility to explain why and how exactly to do things. 

A basic ritual for the Christian community remains to be the Eucharist, giving thanks. The original community (a community of equals coming together in Christ as Paul notes) had an actual meal. Jesus has lots of meals with his disciples and followers. The sharing of bread and the cup was a sign of unity. The meal eventually became symbolized as a ritual quite different from its more primitive origins.

The teachings also discuss how to treat apostles ("those who are sent"), prophets, teachers, bishops, and deacons. The final chapter discusses how (be aware and prepared!) the last days will come. 

The book provides an approachable discussion of these things, including how a cleric accidentally found a copy in the late 19th Century. (The book was not a secret. It was referenced in various earlier works.)  It takes a humble approach to understanding a work from the 1st Century. We do not have all the answers. And, a reference to slaves shows neither did they.

The last chapter of final thoughts is somewhat of a drudge. At least, it was when I tried to read it today. Perhaps, the weather -- I read it outside in the 70s -- didn't help. It has a translation and a few pictures.

I borrowed a paperback version. Recommended. I also like the verse about following the rules the best you can.  

SCOTUS Watch

Opinions

After a short break, the Supreme Court came back on Friday. 

A conference and public sitting (often merely for swearing in lawyers) was on the schedule. We learned mid-week that we would also have opinions though they always say "may" to provide an out if something ever comes up. 

The opinions were each short and unanimous. Chief Justice Roberts' first signed opinion of the term (he might have written the per curiam in the insurrection case) was nine pages regarding the Federal Arbitration Act. Sotomayor dealt with a Securities and Exchange Commission issue in less. 

Barrett, a busy bee so far, dealt with a Takings Clause claim. Her opinion was also short (under eleven pages). It helpfully summarizes precedent. She has shown some flair in writing crisp and approachable opinions. She also tossed in some humor:

The Takings Clause’s right to just compensation coexists with the States’ police power to engage in land-use planning. (Though at times the two seem more like in-laws than soulmates.) 

Five justices joined various concurrences to underline how limited in scope the opinion was. As Gorsuch noted separately, the county government granted the lower court was wrong on a key point. To cite the headnotes: "The Takings Clause does not distinguish between legislative and administrative land-use permit conditions."

On the minutiae front, Barrett included links in her opinion. There is a separate page for URLs to prevent dead links. The justices have not used too many this term so far.  

The Supreme Court also announced Tuesday and Wednesday will be opinion days. They are starting to catch up in opinion writing, after being behind schedule. 

Subpoenas  

Some time back, the Senate Judiciary Committee voted to subpoena Leonard Leo (Federalist Society), Harlan Crow, and a third person (who eventually voluntarily worked with the committee). The subpoenas were part of an attempt to investigate ethical problems, including all those gifts received by Thomas. The third subpoena was dropped. How about Leo and Crow?

Leo -- after the committee voted in November -- finally received the subpoena, which he (as expected) rejected.  Senator Durbin (nice floor speech promoting the confirmation of Adeel Magni) did not explain the delay. [Durbin is the Chair of the Senate Judiciary and has been criticized for his soft approach on various judicial matters]  Now, they have to have a floor vote to enforce the subpoena in court, which the Republicans can filibuster. 

Harlan Crow still has not received a subpoena. Since the Republicans can simply filibuster it, doing so would be mostly symbolic. Still, the Democrats had no apparent good reason to delay things. Overall, this underlines how the current subpoena process is absurdly impractical.  

[The below underlines why Steve Vladeck's concerns about being "too partisan" are aggravating. I comment there too.]

The Republicans are full of shit about the whole thing, arguing ethics problems everyone sees is just some ideological campaign against conservatives on the Supreme Court. The problem is that the concern is particularly focused on Thomas and Alito, not every conservative.

Thomas, of course, still has not accounted for most of his free trips on his disclosures, which by and large do not wholly count as “personal hospitality,” given that a private jet or yacht do not count as “facilities” under the reporting exemption.

The link notes Justice Jackson updated some of her financial forms. Kagan and Jackson have explained why they recused. The others have and all of them (except Sotomayor, I believe) have had opportunities to do so since the ethical guidelines have dropped. 

And, to the extent ethical rules should be upheld generally, it should be a bipartisan theme. Plus, the insurrection case was a problem all around, though five justices were worse. 

Orders

The housekeeping order on Friday regarded an upcoming case involving the Eighth Amendment and the homeless (the solicitor general of the U.S. can take part) and an abortion case involving emergency care (divided argument refused). 

The Order List is longer than usual because Sotomayor and Jackson provided a statement (Sotomayor) and two dissents (one each) regarding denials of cert.

Sotomayor provided the statement in a case already undergoing years of a winding road where someone received civil liability for negligence arising out of a Black Rights Matter protest. Someone else hit a police officer with a hard object and the leader of the protest was blamed. 

Sotomayor cites a case that arose later that should block the "negligence" test but notes the denial of cert. could arise for numerous reasons. So, might be okay.  

(ETA: The case was "relisted" seven times while it was being considered. So, there was likely some discussion behind the scenes.)  

Jackson dissents in a case where a coerced confession was treated as a "harmless error." She argues it was wrongly handled, particularly given the importance of the confession on the facts involved. 

Sotomayor (with Jackson) dissents from denial in a case where she flags sex discrimination in peremptory challenges of jurors in a capital case. 

Kavanaugh (without comment) would have taken a case with this question presented:

Whether federal courts have jurisdiction under 28 U.S.C. § 2241 over a petition for habeas corpus alleging that a prisoner’s unconstitutional conditions of incarceration require release, either because habeas jurisdiction generally extends to conditions-of-confinement claims, or because it at least extends to such claims when the prisoner seeks his release from custody?

We also have (again) multiple conservatives (Roberts, Alito, Kavanaugh, and Barrett) who did not say why they recused from cases (Thomas and Gorsuch did so too in the past) while Kagan (Jackson has done this in the past) again explained why. I do not think Sotomayor had a chance to explain since the ethical guidelines dropped.

This Week 

We will also have three days of argument (Mon-Wed) and another conference on Friday. Thursday will be their fun day. Maybe. 

Roughshod

Roughshod is a Western which I came across when looking for something else. We have fewer Westerns these days but from the 1920s to the 1950s (and then it shifted to television though some notable films continued) there were quite a few. 

(On Saturdays, there are often Westerns on various channels. Checking in, I am overall impressed with the quality of writing.)

Many Westerns focused on specific heroes while a few had bigger vistas. The archetypical heroes and villains were often the favorites. The best ones often showed shades of gray. The heroes had flaws; they might even be antiheroes. The villains had some just cause or perhaps standards. 

This film is more standard. The main villain has it in for our hero for capturing him. The hero doesn't like killing. We see what happens when bad guys are left alive, even put in prison. They escape and kill. We hear little of his (his two helpers are given even less backward) past crimes. But, he led the three to kill three people to take their clothes, and two more (including a woman) later on.  So, clearly is pure evil.

Our hero is going to start a ranch with his kid brother, a good-hearted teenager (the actor was 14/15). He comes upon four showgirls who were kicked out of a town. He takes them along. One befriends the kid brother, teaching him how to read (!).  

Turns out none of them are quite as "loose" as they might seem. One is emotionally and physically (I thought at first the idea was that she was pregnant) upset. There are a good couple of scenes at her parents's house, both with the gang (they get supplies and don't otherwise harm them) and the good guys. Good character actor performances.  

One soon leaves to get married. One falls for our hero (played by Gloria Grahame, she is a typical tough girl with a soft heart). The last (the toughest talker) decides to stay with a gold miner (unwise choice though unlike the others, we do directly see her shot).  

Our good guy is played by Robert Sterling (in his early 30s), who at times seems a bit too clean-cut. Seems like a guy who can play some sucker. but, he handles the role well enough. The little brother is a bit annoying but does the job too. The two gang flunkies are ciphers I would have liked them to have a bit more to do.  They do come off as follower types.

The film overall is well-paced. Gloria Grahame is the best thing in it. The final shootout is decent. Again, the whole thing is not overly complex. But, it is handled professionally and you care for the characters overall. 

Leonard Maltin gave the film two and a half stars out of four. I agree. 

Island of Terror

This week's Svengoolie film is a 1960s British horror involving cancer research gone wrong. New life forms endanger people on an island, including killing multiple scientists and costing horror veteran Peter Cushing's character his hand.

I saw this film in the past and caught parts of it this week. It's an enjoyable enough programmer. Two of the scientists (including Peter Cushing particularly in one scene) are rather blase about the lost of life. The other surviving scientist basically handwaved it as a cost of science. Wonder what he will say when he learns the creatures are now in Japan.

Couple Classic Books

Nella Larsen lived a complicated life. A biracial child, her cultural heyday was in the 1920s. After a plagiarism allegation (deemed unfounded) and a painful divorce, she went off the radar. 

After her husband died (she lived off alimony), Larsen went back to nursing. She tried to meet up with her half-sister near the end of her life, but the sister didn't want to acknowledge her.  

Passing is a novella (it's under 100 pages) about a light-skinned woman (she can "pass") with a darker-skinned husband. Irene by chance meets up with a childhood acquaintance, who is passing (her husband is a bigot). Irene was passing herself at the time. After finding out about her bigot white husband, Irene wants nothing to do with Claire. 

But, Claire misses interacting 'with her own kind" and pushes herself back into Irene's life. This causes complications. Irene has her own demons to address. The book ends on a tragic note when the husband finds out about Claire and Irene does not warn her. 

I read the book along with another book she wrote over ten years ago. I hold to my original statement that it is a good read overall.   

(ETA: The book is first person through Irene's eyes. So, it is a somewhat unreliable narrator.)

After writing this, I decided to take out a complete work volume. 

The three short stories were quick reading (one had a lot of dialect) and two particularly had some atmosphere. Her first novel, which I originally noted was semi-autobiographical [surely not all of it but she did things like go for a trip to her European relatives], was a trudge. 

A young educated interracial woman (20s) is unsatisfied with her life. Her [black] father abandoned her mother, who died young. She also had the same conflicted attraction to being "with her own kind" as the tragic figure in Passing. 

Helga (yes), however, went through more unsatisfying experiences. Her last attempt at happiness is to suddenly marry a black preacher (whom she just met) and go to his poor Southern parish. She then started to have a lot of children. This too turned out not to be a permanent road to happiness. 

However, it was harder to escape. In fact, the book ends with her pregnant for a fifth time (after her fourth baby died shortly after the birth, during her extended postpartum depression), and having lost faith in God. And, she basically hates her husband. Her own personal hell. 

The particularly tragic and depressing ending left me "I plowed tedious pages of her whining for this?"  Yes, that is harsh, but there was a "tragic poor little rich girl" feel to it, especially after her uncle gives her $5000 (this is the 1920s; what happened to it? Did she give it to her husband? She cannot have gone through it in a few years; the book surely doesn't say she did). 

Her unhappiness about her place in the world had dramatic charms. The book provides a social criticism of black colleges and a whole lot more. It did not hold back in its criticisms, which likely excited some readers in the 1920s. But, what a cruel ending. Quicksand indeed.

==

I heard about God's Little Acre (from the early 1930s) in a few ways. It is one of the books subject to censorship as sexually explicit. One daughter has sex with multiple people in the book. A daughter-in-law is lusted after by multiple people (even one of the black sharecroppers).  

Ensign Pulver also enjoys the book in Mister Roberts:

He's been reading God's Little Acre for over a year now. He's underlined every erotic passage and added exclamation points. And after a certain pornographic climax, he's inserted the words "Well written."

The film version (I reserved it) has multiple familiar faces, including Michael Landon (as an albino!) and Jack Lord (not in Hawaii yet). Tina Louise (Ginger on Gilligan's Island) plays Griselda, the object of all that lust. In the book version, at least, she is not [as] slutty like her sister-in-law Darling Jill.

Erskine Caldwell has lots of writings throughout his long career. He wrote many works about poverty in the South. This book focuses on a father of five (three sons -- one left home and is a successful cotton broker) who has spent fifteen years digging holes in his land to try to find gold. One of his daughters is married to a cotton mill worker, currently on strike.  

The book is a mixture of the absurd, symbolism, raw passions, and a look at a time and place. The author provides perspectives from various characters, including the two black sharecroppers. My version of the book also has hand-drawn photos of the main characters by Milton Glaser. 

There are amusing aspects. One bit is that Ty Ty (the father) dedicated an acre of his land to God but keeps on moving it around to make sure he doesn't have to actually donate the proceeds to the local church.  

Ty Ty's gold fetish is absurd. Nonetheless, he comes off as a sympathetic character overall. The book is around two hundred pages and is a quick read. It rambles around some. Then, it builds up to multiple tragedies. It ends with Ty Ty back digging for gold, the one bit of steadiness left after multiple deaths in his family (with one more possible).  

I enjoyed the book as a whole. These days, I find it hard to read long books, especially fiction. 

(ETA: The universal narrator does provide a diverse mix of perspectives, white and black, men and women. Blacks have agency, including one able to admit to his lust for a white woman. Women have their own sexual desires, including a desire for a man who truly is passionate for them. 

The book remains generally seen through a masculine point of view, including women who are men-focused. There are many references to breasts. The mother is dead and the rich man's wife, who might provide a somewhat different perspective, is always out of the picture.)  

Both books were a more reasonable portion. Both also have been made into films. God's Little Acre is listed at around two hours. That seems a tad long but there are enough scenes in the book to fill the running time, I guess.   

Brian Dorsey Execution

Brian Dorsey is an example of the difference between a person who is a good (as far as any can be) candidate for the death penalty (see last time) and a range of murderers who deserve a long prison term.  

One news article discussed his crimes this way:

The murders happened on December 23, 2006, hours after Dorsey called his cousin asking for help, according to a ruling by the Missouri Supreme Court last month, which recounted the history of the case. Two drug dealers were in his apartment, Dorsey said, and he needed money to pay them.

Sarah and Benjamin went to Dorsey’s apartment, and the drug dealers left. They then took Dorsey back to their home, the ruling notes, and Dorsey spent the evening drinking and playing pool with Sarah and Benjamin’s family and friends.

Later that night, the ruling says, Dorsey entered their room with a shotgun and fatally shot them both at close range. Court records say Dorsey raped Sarah’s body, but Dorsey’s attorneys argue this remains an allegation because he was never charged with and never pleaded guilty to rape or sexual assault.

His lawyers now flagged a range of problems. Was he truly guilty enough given a drug-induced psychosis? 

“If they had they would have known what we know now, which was Brian had lifelong chronic depression, and that he had turned to self-medicating with alcohol and crack cocaine at this point because other treatments had failed,” Crane, one of Dorsey’s current attorneys, said. “And he had a history of experiencing psychosis when withdrawing from crack, experienced paranoid and persecutory delusions and hallucinations.”

Was the flat-free arrangement for his trial lawyers liable to encourage cutting corners in his defense? Was the current Department of Corrections acting director legitimately in charge? Will the cutdown procedure ("shrouded in secrecy") cause too much pain? 

I have commonly cited the problem of long terms on death row. Traditionally -- before the death penalty was restarted in the mid-1970s -- about fifteen years after conviction would be considered a long time. Now? It is almost (especially if COVID slowed things down) a moderate amount of time. OTOH, unlike multiple cases, his lawyers do include this as one of the arguments in his final Hail Mary petitions. 

The strongest argument on his side is the overall legitimate public interest in executing him. Dorsey is a case where there appears to be real rehabilitation. He admits his guilt. He has served his time in good behavior. He is even trusted to give haircuts.  Again to summarize:

Dorsey accepts responsibility, the petition says, and in the years since has sought to atone: He has a spotless prison disciplinary record and works as a barber for the correctional staff, a position of immense trust.

Indeed, more than 70 correctional officers support the inmate’s clemency petition, it says, which also cites the support of five jurors from the penalty phase of his trial, a former Missouri Supreme Court justice and at least three Republican state representatives.

A drug-induced double murder with the victims' four-year-old daughter left an orphan (the summary notes she was around, but wound up physically unhurt) does not sound like a gratuitous application of the death penalty on some level. This would be true even if he does not have a history of violence. There is mitigation and it is quite possible that in another case someone would receive life. But, I can understand the choice.

Nonetheless, this underlines what happens when you leave someone in prison for years. Brian Dorsey now is not the person he was then. He is being punished. A Missouri prison, especially death row, is a serious punishment. Leave him in there for more than fifteen years, if that is what it takes. But, is an execution -- as compared to many others who did comparable crimes or worse -- appropriate?

Court opinions that argue the death penalty is unconstitutional note that it does not fulfill appropriate penal purposes. One thing cited is rehabilitation. The book A Lesson Before Dying suggests this might not be totally true. An extended time in prison before execution can entail some degree of rehabilitation. Brian Dorsey appears to have had some.

There are enough issues that someone should be concerned about an execution depriving him of life without due process of law.

The governor denied the request -- supported by many prison officials -- to commute his sentence. The final two appeals were rejected by the Supreme Court without comment. This follows a theme, including no statement ("I'm concerned but") or dissent from any of the liberals.  

(The link also vaguely references some agreement -- details were not supplied about what was involved -- about the state promising to reduce possible problems with the cutdown procedure. Okay?)  

One appeal cited Dorsey’s record of good behavior since his incarceration and said he should not be put to death because he has been rehabilitated.

The other appeal said his life should be spared because his trial lawyers had a conflict of interest. The pair of public defenders were paid a $12,000 flat fee that provided them with no incentive to invest time in his case, the appeal said. On their recommendation, Dorsey pleaded guilty despite having no agreement with prosecutors that he would be spared the death penalty.

The first claim is particularly novel. I am not aware of one quite like it. It sounds like a policy argument made by advocates requesting a commutation of a death sentence. It is made here as a legal argument. Compare Dorsey with the last person executed, who is less sympathetic.

The second claim is more familiar, a twist on why there was a deficiency of counsel. Likewise, a recent execution also involved concerns that corners were cut when paying for counsel. When something keeps on coming up, maybe Jackson and/or Sotomayor can talk about it?  

Anyway, Missouri executed him. The next person can stop worrying about rehabilitation in prison and so on, perhaps, since it isn't that relevant. 

Griswold v. Connecticut: Draft Opinion

I have been interested in the right to privacy, including its implications in abortion matters, for a long time. My blog has many posts that discuss the various implications, including different contraceptive-related cases.

Griswold v. Connecticut is a fundamental landmark case here. Nonetheless, as the short opinion itself notes, privacy has long been addressed. 

The one footnote references the seminal Boyd v. U.S. case arguing the Fourth Amendment has a broad concern. It goes to the "very essence of constitutional liberty and security" that applies "to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life."  This is a "sacred right." 

Justice Douglas (the author of Griswold) goes back to this appeal to the long-lasting nature of a right to privacy in his concurrence to Doe v. Bolton, the companion case to Roe v. Wade. Multiple opinions concerning legislative investigations address how they must have a "public" purpose. As Sinclair v. United States from the 1920s noted:

Of all the rights of the citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves not merely protection of his person from assault, but exemption of his private affairs, books, and papers from the inspection and scrutiny of others. Without the enjoyment of this right, all other rights would lose half their value.

The Warren Court continued this in the 1950s in Watkins v. U.S.:

We cannot simply assume, however, that every congressional investigation is justified by a public need that overbalances any private rights affected. To do so would be to abdicate the responsibility placed by the Constitution upon the judiciary to insure that the Congress does not unjustifiably encroach upon an individual's right to privacy nor abridge his liberty of speech, press, religion or assembly.

A "right to privacy" is included among other rights expressly enumerated in the Bill of Rights. Boyd noted that at times the Fourth and Fifth Amendments (self-incrimination provision) "run almost into each other."  

As an important 1960s case involving the Self-Incrimination Clause notes, one of the values behind the provision is "our respect for the inviolability of the human personality and of the right of each individual to a private enclave where he may lead a private life." (Internal cites removed)

Griswold reaffirms the idea that privacy is a fundamental constitutional value, both on its own and as an outgrowth of specific provisions of the Constitution.  Justice Douglas spoke about this before. His first draft of the opinion focused on the First Amendment. Bernard Schwartz's The Unpublished Opinions of the Warren Court provides the draft. 

[The book along with one involving cases from the Burger Court -- that one has a Doe v. Bolton draft -- is an interesting inside look at the Supreme Court. I don't agree with all of the author's commentary.]

The draft starts off in a way familiar to the readers of the final product. The draft addresses how -- unlike past contraceptive cases -- there is standing. Then, there is a discussion about how this case is not like Lochner v. New York (the term is not said, but the bugbear of "substantive due process" is involved here). This "involves an intimate relation of a husband and wife." 

A significant deletion is a sentence that firmly says that a law dealing with the "manufacture, sale, or marketing of contraceptives" would not involve a substantial federal question. The draft itself upfront says "fees were usually charged" and the clinic was "open and operating" to the public.  The Supreme Court would later strike down multiple regulations of the sale and marketing of contraceptives. The sentence was too absolute.

The draft then provides an expansive understanding of the rights of speech, assembly, and association. Again, this is much like the final product. To cite the final opinion:

The right to educate a child in a school of the parents' choice -- whether public or private or parochial -- is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.

Also:

Association in that context is a form of expression of opinion, and, while it is not expressly included in the First Amendment, its existence is necessary in making the express guarantees fully meaningful.

The draft emphasizes how marriage and families promote "fruitful advocacy" (to cite criticism in the author's analysis). For instance:

The family is an instruction unit as much as the school; and husband and wife are both teachers and pupils. 

And later:

Marriage is the essence of one form of the expression of love, admiration, and loyalty. To protect other forms of such expression and not this, the central one, would seem to us to be a travesty. 

Then, the famous paragraph that remained:

We deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

The draft phrased things differently after "Yet it":

Yet it flourishes on the interchange of ideas. It is the main font of the population problem; and education of each spouse in the ramification of that problem, the health of the wife, and the well-being of the family, is central to family functioning. Those objects are the end products of free expression and these Acts intrude on them. 

Justice Brennan opposed this much focus on marriage as some singular reason to provide exemptions from general laws. He also did not think marriage had much to do with the advocacy protected by the First Amendment. But, the opinion fits marriage among other associations. And, marriage very well is a fundamental promoter of values.  

I agree, bottom line, that the right to marriage is not merely a First Amendment right. Nonetheless, there are some clear First Amendment values involved. Marriage itself is a type of statement and expression of love and commitment. Furthermore, "fruitful advocacy" is a somewhat limited way to summarize the reasons for the rights of assembly and association. People can "assemble" for a variety of reasons.

The draft opinion does not end like the final product with that famous paeon about marriage. It cites the specter of searching "sacred precincts of marital bedrooms" line the final opinion includes a bit earlier. This would be:

repulsive to the idea of privacy and of association that make up a goodly part of the penumbra of the Constitution and Bill of Rights. Cf. Rochin v. California, 342 U.S. 165.

A few comments. Note how the opinion repeatedly uses emotional-laden words (sacred, repulsive, travesty).  

The draft opinion does not have the general discussion of privacy that the final opinion does. It does not have the infamous "penumbra/emanations" phrase. We now just have "penumbra," a highfalutin word, if used in a few Supreme Court opinions before. The justices were misguided in leaving it in when "necessary and useful in making the express guarantees fully meaningful" provided a clear means of stating the underlying principle.  

Nonetheless, the opinion ends with a hint that "the idea of privacy" is something that makes a "goodly part" of the Constitution and Bill of Rights. The draft opinion would still have the potential to promote the right to privacy principle. 

The opinion also ends with a citation to a case involving forcing people to vomit up drugs. This invasion of the "privacy of the petitioner" was found to "shock the conscience," to cite a traditional test to determine if due process of law was violated. The citation again ends with the reading thinking about the right to privacy as well as underlining the idea that the law here was outrageous. 

These principles continue to be in the news. Trump has now come out in support of leaving abortion to the states while bragging about his role in getting us there. Abortion is going to continue to be in some fashion a national concern. If he won (cf. Rochin), his supporters are already planning on using the Comstock Act to block abortion on a national level. 

We cannot take his statements at face value. He has warily not said much about abortion during his campaign. This is logical given the broad opposition to abortion bans, even in many red states. Relatedly, see the change in informed consent regulations regarding pelvic exams.

I am surprised he was this explicit here. The subject is sensitive enough that even some of his strong supporters might blanche at them. We can be cynical/savvy about his supporters being willing to look the other way because they figure he will (and did) get a lot of things they wished. 

Humans are not quite such mechanical machines. His supporters do in various cases find it uncomfortable to support him. Yes, who cares on some level, but the point does hold. Finally, many evangelicals are honestly passionate about opposition to abortion. Some will be angry and disappointed that he is saying it is a state matter. 

The bottom line is that they might not be upset enough to significantly change their support. Precedent suggests that is a safe bet. I am, however, not totally sure if this is true. Abortion is a third-rail sort of thing. 

Let us hope it helps to "reverse" (to allude to the final word of the draft option -- Reversed) some minds in the right direction.