New Ways to Get Trump Off The Hook ("The Constitution Turned Upside Down")

I know "someone is wrong on the Internet" should not lead to an extended reply each time. But, the argument below is present in various forms, and we continue to get it for Trump. So, it warrants a reply.

President Biden touched the right notes in his response to the verdict. He honored the rule of law and opposed reckless attacks on the justice system.

Gerard N. Magliocca is a Never Trump type who opposed the second impeachment and was "meh" about the first. He strongly wanted to use the 14A, sec. 3 provision, including offering expert testimony. 

GM thought Trump v. Anderson was wrongly decided. He has (more strongly than his usual, generally above-the-fray law professor ways) continued to be quite snarky about the ruling's idiocy.

I have spoken (including at one of his blogs) about my opposition to his opposition to the second impeachment. He is at it again:

Section Three of the Fourteenth Amendment established that the appropriate sanction for engaging in insurrection against the Constitution was civil disqualification from office, not criminal punishment. Trump v. Anderson reached the opposite conclusion. The Court there held that states can sanction insurrectionists holding or seeking federal office only through criminal law. 

Where is this coming from? His m.o. is to provide short takes that regularly don't hold up to scrutiny. He doesn't go in-depth (and that's appreciated somewhat since others do so in boring detail) and on both blogs (one rarely allows comments; the other none). But, at times, it might help.

The 14A provision is an extension of the impeachment clauses. It holds that those (state and federal) who already swore allegiance are blocked from further office for a specific category of acts. And, this disqualification (underlining this is not a criminal punishment) can be removed by a supermajority vote. 

The idea that impeachment was the only limitation on wrongdoing as applied to Trump was rightly labeled asinine. Why should this provision be any different? This is a law professor.  He is saying that someone who did not previously hold an office requiring a constitutional oath could be prosecuted for the VERY SAME ACT as these people commit. But, only those who did not hold office should be prosecuted. 

And that is what New York and Georgia are now attempting to do. 

This extends the insanity of the argument and he's not alone in finding (inventing) ways to keep Trump from obtaining justice.

The way New York particularly is "sanctioning insurrectionists" is by prosecuting one for non-insurrectionist related acts. GM argues that the cases wouldn't have been brought if Trump was disqualified. 

So, the only way this makes sense is by arguing the indictments are indirectly for insurrection. This includes Georgia's indictments for events before January 6th. Does he think Georgia would also not bring a case against all the other people -- some of whom not covered by the provision -- covered in the indictments? So, for instance, they wouldn't really care about the harm to two election workers? I find that just asinine. 

The choice to indict Trump for the New York crimes had something to do with it being Trump. Nonetheless, it was a balance of multiple factors. Multiple people involved in the scheme were either prosecuted or signed a non-prosecution agreement. Trump was not and did not. Trump also committed significant civil wrongs of a financial character.

The Georgia indictments had a more direct relationship with 14A, sec. 3 activities. Nonetheless, they involved various crimes, including some specifically local, that were separate. Likewise, Trump was one of eighteen people charged. The office disqualification route is not only a limited one but was not applicable in each case. His disqualification was not likely to have led Fani Willis (judge her as right or wrong) to not prosecute. 

Even if I'm wrong about that, the damage done by these prosecutions is much greater because he is a candidate. If Trump loses in November, many people will conclude (not unreasonably) that the conviction did him in. This will encourage future state prosecutions of candidates for federal office either as a Section 3 proxy or out of partisan revenge. That's more dangerous than the fear expressed by some of the Justices that there would be a retaliatory cycle of state ballot exclusion. 

Well, yes, a candidate who is convicted of multiple felonies is "damaged." They are appropriately so because voters have grounds to be wary of convicted felons, especially those convicted of crimes related to sleazy election interference-related crimes. 

The wariness of prosecuting candidates is present but prosecutions for illegitimate reasons are a general concern. We still realize that often prosecutions are appropriate. This rule applies to people who run for office. People who run for office do not get a special immunity from crimes everyone else is liable to be tried for. To continue a theme, that's asinine.

Does he also think the national security documents case is improper and would not have been brought if he was eventually found disqualified? I suppose if he was impeached and convicted (which GM opposed), he might not have had access. But, if it was left to a 2024-5 application of the insurrection provision, he would have lots of time.

Finally, people raise the specter that the disqualification will be applied in a partisan way. I think the argument does not warrant taking it off the table. The overall concern is still present.

One final thought--the Supreme Court's refusal to say whether Trump is constitutionally eligible to be President, combined with Trump's state conviction, increases the probability of instability following the election if Trump wins. 

I don't know what difference it made that the Supreme Court refused to say whether Trump is eligible. The gaming out the possibilities here includes Trump winning and then his election being challenged. 

I assume that if he wins, there is a possibility of instability. A sizable group will just not find it possible to accept the election of someone so dangerous, especially (as it is likely to be) if yet again he is elected without the popular vote.  This is true even if the Supreme Court (which this group largely does not trust) declared him eligible. 

It was doubtful in the extreme that they were going to declare him ineligible. The very question did not need to be answered. 

Finally, the state conviction does not add much to this whole thing. Would the people challenging the election act much differently if the acts they believed happened were not tried in a court of law? The court of law avenue very well might be a means to cool things down. Justice is being served. The guilty verdicts add little to the fear of instability.

Ultimately, we are doing mental somersaults here (as with his challenge to the second impeachment) to block a modicum of justice from happening. I appreciate his support of the insurrection provision route.

But, like the impeachment clauses, this doesn't mean Trump (unlike loads of other people) gets criminal immunity from punishment. How far is he taking this? Are the New York civil proceedings wrong too? What about his sexual abuse and defamation trials?  

Please stop with this asinine bullshit, people. 

Alabama Executes Jamie Mills

The basics of the matter: 

Prosecutors said Mills and his wife went to the couple’s home where he beat the couple and stole money and medications. 

Floyd Hill, 87, died from blunt and sharp-force wounds to his head and neck, and Vera Mills, 72, died from complications of head trauma 12 weeks after the crime, the attorney general’s office wrote in a court filing. 

Mills’ attorneys wrote in a March petition to a Marion County judge that prosecutors concealed that they had a plea deal with Mills’ wife that spared her from a possible death sentence. She was the key prosecution witness against Mills at his trial. 

The attorney general’s office disputed that there was a pretrial agreement.

It was a horrible and depressing crime. Jamie Mills was broke and a drug addict. They robbed and murdered an elderly couple for what amounted to about $140 in goods. Executing Mills as compared to various other people who murdered people in similar crimes is of limited value.

Mills argues the testimony of his common-law wife was essential to the state's case. His lawyers offer another theory that a known local drug dealer, Benjie Howe, was guilty and that the evidence can be interpreted that way. Howe was arrested with the duo. Nonethless, the lack of evidence led the state to drop the charges. 

The state denies wrongdoing and that by now it's much too late to make the claim. The lawyers also have other longshot arguments including the dangers of lethal injection (the Supreme Court clearly doesn't care) and the right of his lawyer to be in the death chamber. 

His wait of over fifteen years (somewhat medium range in comparison to other cases) might in some other nations also be a reasonable argument (Breyer's dissent). Not here. Likewise, no surprise, that his final appeal to the Supreme Court was rejected without comment. I don't even think the decision is necessarily wrong. "No comment" is.  

Past practice has shown Alabama should not be trusted with the actual practice of executing people. The coerced testimony argument seems weak (especially based on precedent) but might be credible. But, the bottom line is that this is overall a bad use of execution. It was a horrible crime and such a waste but not "worse of the worst" or a good policy.

One juror agreed. The final vote to execute was 11-1. The law of the time allowed a non-unanimous judgment. The eleven won out in the end. Three executions are scheduled for June.

Trump Found Guilty

Trump was found guilty. 34/34. Paul Campos summarizes:

The reason Trump was convicted of 34 felonies after a very short jury deliberation is because the evidence was overwhelming that he was guilty of exactly what the state of New York charged him with doing, which was to buy the silence of a porn star with who he had a few minutes of semi-consensual sex, via a fraud through his lawyer, intended to cover up the transaction for the purposes of violating federal election laws, in order to get elected president.

Cynical "Trump is probably going to win" Erik Loomis at the same blog had a post (won't link) saying it won't matter. Trump voters will not change their minds. Mr. Buzzkill. 

(His political analysis is of limited value. He was sure Sanders would be the nominee in 2020.)

Rick "meh about this" Hasen had his own analysis.  I think overall it's reasonable if somewhat low-key. He notes  at the end that it is "extraordinary in American politics" that Trump is now a "convicted felon." That alone is far from "meh."

The fact Trump was tried in a court of law alone was a major accomplishment. I want today to focus on that. One important thing here is that this is about the 2016 elections. Each trial has its own nuances with the Georgia and D.C. overlapping to some degree. Each has its importance.  

How will it affect the 2024 elections? The honest answer is "unclear." Some polling suggests that there will be a mild negative effect on Trump. In a close election, that is significant. If he was found not guilty or there was a hung jury, it is hard to think it would not have helped him.  

The sentencing is July 11th. Can he vote in Florida? That is complicated/not totally clear and DeSantis even has promised legislation to help if necessary. So, let's wait and see.  

The first elected "president" impeached twice has a new first -- the first convicted felon. Let's hope not the first time. Earlier in the day, there was yet another horrible Judge Cannon decision. We await the Trump immunity ruling from the Supreme Court. Georgia has a long way to go. 

Today is a good day. Let's enjoy it. No, It's not magic. I have repeatedly underlined it wasn't. That's a strawman. 

It's still a good day. 

SCOTUS Watch: Opinions & (Sigh) More Alito News

Alito Letter

I will primarily defer to Chris Geidner (with reference to a good Slate piece) on the details here. 

Alito sent a letter to both houses of Congress and refused to recuse in two pending January 6th cases. The letter mixes troll and grievance. He in part declares:

I am confident that a reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases would include the facts recounted above do not meet the applicable standard of recusal.

As the Vox analysis argues, he uses the SCOTUS code of ethics to avoid a stricter statutory provision ("shall") that applies to justices. Rep. Raskin in a NYT op-ed wants the government to press the issue, tossing in a due process argument. 

His examples are easier calls than this one. And, it isn't just "Merrick Garland" not likely to want to poke the bear, playing the long game. But, the time to draw a line in the sand is upon us. We should not just worry about typical financial recusals. 

You can read more here and here. The second is a discussion of other federal laws that Thomas appears to have violated. There are in theory civil and criminal sanctions in place in those cases. Ultimately, a binding ethics rule with teeth should be in place. Democratic trifecta, please. 

Finally, Alito's discussions of his wife's independent control over their homes remind me of this Fourth Amendment case. The letter has a lot, including a reference to Mrs. Alito's interest in "religious flags." Does she ever fly the Christian flag, which has Christian Nationalist implications, including on January 6th? 

I do not know if this is the last chapter in the ongoing Alito flag saga -- I doubt it. In fact, later in the day, CJ Roberts released a short letter rejecting Durbin/Whitehouse's request for a meeting. He repeated his former argument that Chief Justices rarely meet with Congress. They have in the past; he also has privately met with members for certain reasons. Those things, however, are not mentioned.  

When reading about the Washington Post's role in reporting their own role, I was reminded of a famous Justice Holmes quote about the common law. It has a broad application to the law itself and other matters:

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.

Meanwhile, Justice Barrett's husband is involved in a Fox News case. This article shows evidence she has not properly disclosed her husband's possible conflicts. 

Anyway, it doesn't work that way Sam, and both you and Thomas should resign. 

SCOTUS Opinions

There were three opinions, none of which were earth-shattering. Kavanaugh with a unanimous ruling:

The Second Circuit failed to analyze whether New York’s interest on escrow law is preempted as applied to national banks in a manner consistent with Dodd-Frank and Barnett Bank. 

Sotomayor had another unanimous ruling involving an NRA claim that the New York Department of Financial Services pressured regulated insurance companies not to do business with them. I think the claim is exaggerated. Also, as noted in this summary, the official sued might be protected by qualified immunity. 

But, at the "motion to dismiss stage," the Court found enough to let them move on:

The NRA plausibly alleged that respondent violated the First Amendment by coercing regulated entities to terminate their business relationships with the NRA in order to punish or suppress gun promotion advocacy

Gorsuch has a brief concurrence to underline his support of coercion claims. Jackson has a longer concurrence wary of the open-ended nature of the claim, suggesting some limits that would be present in other cases.  

Some people thought the timing of Alito's letter suggested one of the January 6th cases would come down. Alito did have a 6-3 (liberals dissenting) but it was a habeas case involving an ineffective counsel claim. 

The opinion overturned the opinion below that supported it. Sotomayor (with Kagan) dissented narrowly, agreeing the court below erred. They wanted to send the case back to try again. Jackson's similarly brief dissent was more critical of the majority opinion:

I agree with JUSTICE SOTOMAYOR that we are not the right tribunal to parse the extensive factual record in this case in the first instance. That is doubly true where the Ninth Circuit committed no legal error in reviewing that record to begin with.  

The "parse the extensive factual record" has added context when we remember the liberals' strong dissent to Alito doing that in a racial discrimination voting rights case. 

To toss in a footnote, the drug-related case by Alito for which Jackson had a strong dissent was updated with two corrections. The usual practice is to wait until it is put in the final volume of opinions, which is handled much more quickly. I am not sure why a couple times they still followed the old policy of linking a correction on the Opinion Page. 

Next Steps

The justices had a conference today. Perhaps, they talked flags. There is a pending capital case that I will address separately.  An Order List will come on Monday. 

There is also a notice on the calendar of possible opinions next Thursday. More hot-button cases are still pending. 

Struck v. Secretary of Defense

I read Liberty and Sexuality by David Garrow some more recently. This tome on the road to Roe v. Wade does leave at least one notable thing out.

A Roman Catholic Air Force captain got pregnant. At the time, the options were to get an abortion or dismissal. Susan Struck wanted to have her baby. She sued when that choice led to her discharge. Ruth Bader Ginsburg, then a women's rights advocate, was involved in her case. 

(Susan Struck later became a Trump supporter.)  

Ginsburg's brief largely rested on equality while also mixing in religious liberty and privacy rights. One summary notes:

This is not because she was conceptually confused, but because she registered that laws intervening in major life decisions and enforcing status roles may simultaneously implicate both equality and liberty—equal protection and due process. Restricting women’s liberty may be a means to the end of communicating inequality, and discriminating against women may diminish their opportunities to fashion fulfilling lives.

Justice Kennedy followed that due process and equal protection combo approach in his homosexual rights opinions. The feds decided they had a weak case and waived her discharge. They changed the automatic discharge policy. Ginsburg continued to be upset that such a good opportunity was lost. The Supreme Court eventually declared the case moot. 

Ginsburg became a critic of Roe v. Wade, arguing it tried to do too much too fast, and was too physician-focused. Her brief shows she supported a substantive due process argument (her brief was submitted shortly before the Roe was handed down). Also, in 1973, gender equality was only beginning to be recognized by the Supreme Court. From the summary:

The Court made some fateful choices in those cases: to focus its sex equality jurisprudence on cases other than pregnancy, and so to develop its sex equality jurisprudence in isolation from its abortion jurisprudence. 

When the Supreme Court dealt with cases involving pregnant teachers forced to take leave, they relied on substantive due process. When the Supreme Court heard pregnancy discrimination claims regarding health benefits, they rejected it. Justice Blackmun joined the majority!

Over time, Justice Blackmun and the Supreme Court expressed the right to choose an abortion more as a matter of sexual equality. Planned Parenthood v. Casey firmly recognized the mix of equality and privacy (liberty) that Ginsburg cited in her brief. 

In the early 1970s, nine male justices, a majority of which were in their 60s or older, took a different approach. Roe did have a section about the specific burdens to women of pregnancy. However, it is anachronistic to be upset that gender equality was not used more, even if abortion rights cases often involved people active in the women's rights movement. 

The case underlines the many shades of reproductive liberty. For instance, there was a broad understanding that it was a matter of conscience. Some people sneer at "religious" claims. We should not hand over that to conservatives. Clergy helped promote abortion rights, including helping women find abortion services when it was broadly illegal.

Catholics also have a variety of beliefs on moral matters. Most Catholics accept the use of birth control. They also often believe that abortion should be a matter of personal choice. Robert Drinan, a priest and later a member of Congress, argued it was better if the state stayed out of the field instead of picking and choosing what abortions were allowed. 

I like to say life is complicated. That is a cliche sometimes. Other times, it is quite true. Abortion often shows the truth. 

SCOTUS Watch: Order Day

Ethics Update 

We therefore call for Justice Alito to recuse himself from certain proceedings as outlined above, renew our call for the Supreme Court to adopt an enforceable code of conduct for Supreme Court justices, and request a meeting with you as soon as possible. Until the Court and the Judicial Conference take meaningful action to address this ongoing ethical crisis, we will continue our efforts to enact legislation to resolve this crisis.

Senator Durbin and Whitehouse wrote another letter to Chief Justice Roberts.* Roberts chairs the Judicial Conference, which in part handles ethical matters. Fix the Court on Twitter notes Roberts has met with senators privately in the past for budget and security-related matters. 

So, it is not just that he is Chief Justice. But, people do have a right to be suspicious. Why wouldn't he just do nothing again? Yes, Alito's problems warrant the justices as a whole to act. The letter also tosses in the Thomas problems. 

However, self-regulation is a limited solution. Let's remember as well the justices do not merely serve for life. They serve for "good behavior." I want to underline that since many people do not know about it. More emphasis should be provided on the basics.  

And, Congress has a role in enforcing that obligation. Letters are not enough. We need subpoenas and hearings. Yes, if we had a Democratic trifecta, they could pass legislation. But, there is stuff that can be done before then. 

Value of Video 

A veteran Supreme Court reporter had this bit of color about a late-term oral argument:

They sounded testy and looked weary. During the scheduled one-hour hearings that often ran twice as long, several justices held their heads in hands. Alito rolled his eyes. Elena Kagan wore a pained expression. Clarence Thomas rubbed his face. In some cases, when Ketanji Brown Jackson, the junior justice, posed her final queries at the end of a clean-up round of questioning, most of the others didn’t look her way.

The larger atmosphere suggested many were simply not listening to each other or respecting divergent views – a pattern bound to make the final sprint of negotiations especially difficult.

Appellate courts often cannot get a true sense of trials from a dry record. A judge and jury react to visual cues. The same applies to understanding an appellate hearing. This is why Joan Biskupic shows up in person. 

The general public should have video of Supreme Court oral arguments. They also should have them when opinions are announced. We do not even have access to the transcript of opinion announcements. 

Video of other non-argument sessions, including the announcement of orders, is also appropriate. After all, we have complete C-SPAN coverage of Congress, including pro forma sessions that last under a minute. 

Order List

Today's Order List has a few interesting aspects. The Supreme Court granted one case:

Whether the Clean Water Act allows EPA (or an authorized state) to impose generic prohibitions in NPDES permits that subject permitholders to enforcement for exceedances of water quality standards without identifying specific limits to which their discharges must conform. 

[I again wish the Order List was not merely a scanned page. It should have links to the docket pages.] 

The liberals and Kavanaugh recused from denials. The liberals, Sotomayor for the first time I know of having a chance to cite the new ethical guidelines, were sued by some unhinged plaintiff. Kavanaugh was recused in the Michael Avenatti Nike case. I am not sure why. That is wrong.

[ETA: Fix the Court on Twitter: "Justice Kavanaugh recuses in Michael Avenatti petition (cert. denied), likely due to Avenatti representing a woman who claimed Kavanaugh acted lewdly at parties in the '80s." Yeah. He caused more trouble than help for the opposition there.]

Gorsuch wrote a short dissent from denial involving a case involving the alleged constitutional right as applied to states for a twelve-person jury. He is shocked that the Supreme Court did not apply the traditional federal rule. 

He elides that the cases he cites apply to federal cases. If we are going to apply the federal jury rules to the states, does that mean grand juries should be required too? How about civil juries according to the Seventh Amendment? 

The Supreme Court eventually (with Roberts, Alito, and Kagan dissenting; Kagan silently joined based on her support of precedent) held that state juries had to be unanimous. Concurring justices noted that racial equality concerns were involved in the case. I think Kagan could have concurred on that limited ground. Alito's dissent was too broadly written.

By then, only a single state (and Puerto Rico) did not require them. This case would affect more states. 

There will be opinions on Thursday. An execution is also scheduled on that day. 

==

* I checked the Wall St. Journal interview article the letter references. The NYPL has an article database allowing me a free look. This is a way to get around paywalls. 

Alito talks about the differences in the style of his conservative colleagues. He argues that the liberals have the same style. 

This is not true. Kagan is pragmatic, concerned about precedent, and willing to compromise. Sotomayor is more her own person, the liberal Alito in some ways. Breyer surely had his own style when he was there. Jackson is also showing her own voice, including an appeal to purpose. 

Trump NY Trial Goes to the Jury

We are moving toward the final chapter of the New York trial. There will be final arguments and the jury will receive instructions. Then, the jury deliberates. We might get a verdict by the end of the week.

Let us re-up that this prosecution was not a mistake. Chris Geidner noted:

For many, myself included, it seemed proper that Trump, who has long suggested that he is above the law, faced his literal day in court. Some people whose views I greatly respect, though, are less excited about this particular prosecution. It’s not that Trump doesn’t deserve to be prosecuted, they argue, but this prosecution is not the one that does the job.

Just Security:

The hush money payments were a significant matter for our democracy. The election of 2016 was a close one, in which Donald Trump was already coping with a sex scandal because of the Access Hollywood tape. Had the Clifford allegations emerged, they might have changed the outcome of the election. And the payments certainly seem to run afoul of the New York books and records statute. While bringing a felony case presents complexities, DA Bragg is to be applauded for taking the matter seriously. 

PBS summary, which includes the Michael Cohen prosecution, and the non-prosecution agreement of National Equirer's owner. See also:

As a part of the agreement, AMI admitted that it made the $150,000 payment in concert with a candidate’s presidential campaign, and in order to ensure that the woman did not publicize damaging allegations about the candidate before the 2016 presidential election.  AMI further admitted that its principal purpose in making the payment was to suppress the woman’s story to prevent it from influencing the election.

The Trump Organization has been prosecuted. The CFO, Allen Weisselberg, pleaded guilty to 15 criminal charges including grand larceny, criminal tax fraud, and falsifying business records. Toss in perjury.

Why should Trump get away with it? The trial has forced him to sit in court, brought out in the court of law his wrongdoing (legal and policy-wise), and shown how the Republican Party is filled with his bootlickers. 

The Supreme Court and Judge Cannon have blocked justice in D.C. and Florida. Soap opera bullshit and the complexity of the trial held things up in Georgia (the D.C. trial was streamlined, all the good that did so far). 

I'm glad that at least one of four trials, depressingly the least important, has come to trial. But, campaign finance and business crimes are not nothing. Business crimes are particularly important for New York City, a business capital of the world. Campaign integrity has a special importance to our system of government. Many people are convicted of such crimes. 

Few people doubt he is guilty of something. If nothing else, he would "only" be guilty of misdemeanors. 

[I saw one discussion that granted he spent so little time in New York in the last few years that the statute of limitations did not run out for misdemeanors. Now, I see something about the jury instructions taking them off the table. IDK. The original comment stands as an original matter.]

Why did it take this long to try a case arising from events related to the 2016 election? Like impeachment and emoluments, the presidency has the potential to be a consequences-free zone. Mix in Attorney General Bill Barr and we got nothing.

 

Voting is fundamental. Vote to avoid the person calling critics "human scum" during his Memorial Day message. 

It is not the only check in the system. Brazil can disqualify a dangerous person from leadership until 2030. Others prosecuted leaders. Why are we so special? 

Happy Memorial Day

Promote peace.

Blondie Weekend

I have discussed the Blondie films based on the comic strip because one retro station shows a film every Saturday morning. This weekend, Catchy TV, the retro comedy channel, has a "weekend binge" of Blondie.

Last week, we had Petticoat Junction, opening with a documentary from around 2000. It had many cast members (the third blonde sister had died shortly before). This time, the binge had the run of the first Blondie TV show (which had the actor who played Dagwood in the films, looking mostly the same*) and then many of the films. 

There is a second series from the late 1960s, which you can find on YouTube. From what I can see, it wasn't very good, and the leads do not remind you much of Dagwood and Blondie. The first series Blondie also looks more 1950s housewife than Blondie. The movie version, I guess, at times looks the part. But, the comic version is more sexy looking. 

The first television series is okay. Herb -- the neighbors are barely in the films and they are not friends of the Bumsteads -- is portrayed as always trying to con Dagwood in some moneymaking scheme. His wife is friends with Blondie like in the comic strip. 

The original comic strip plot was that Dagwood was the son of an industrialist and Blondie was seen as a golddigger type. His family disinherited him for marrying her. In the film series, they met in high school, and that was not mentioned. 

Blondie Goes Latin is one of the films being run today on Catchy TV. The film involves Mr. Dithers taking the Bumsteads with him for a vacation cruise -- if he is trying to relax, that is a curious decision.  It's available on YouTube.

The film is music and dancing heavy. A subplot includes Dagwood filling in as a drummer and a Latin singer also is mixed into the plot. Except for a prologue of sorts, it takes place at or on a ship. 

Dagwood plays the drum and dances some. Baby Dumpling sings a duet with a girl who plays the piano. Blondie sings and dances (the actress did musical theater; Blondie sings in another film as well.... they should have used her talents more). Heck, even the dog did a dance move! 

All of this is fun. The beginning has an amusing bit about Dagwood running into the mailman and his shaving cream is knocked on the mailman's face. Then, the mailman runs into the cab driver, and that repeats! The film has the usual jokes. 

It also has the usual (and so very tired) confusion where Blondie thinks Dagwood is cheating on her. This is so asinine -- her doofus loyal husband would never do that. In each case, there is some good explanation, except once when he models in a bathing suit with some bathing beauty types. Still, the jealousy does lead to a good music number.

(A rather risque bit has her telling the Latin singer to "make love" to her -- he rightly is like "what" -- and what she means is that he wants to act like he is in love with her. They earlier had a pretty sexy duet, singing a love song, which is justified in that Blondie is thinking of Dagwood.) 

Overall, it is one of the best films in the series. 

===

* The first series was a one-season run in the late 1950s, almost twenty years after the beginning of the film series. 

A little documentary I found on YouTube -- does not talk about the animated specials in the 1980s (when the original Blondie was still alive / she voiced the Jetsons film, but they went with Loni Anderson) -- referenced there was a failed attempt to have a series in the early 1950s.

Then, the original Blondie was interested, but only if the original Dagwood would join in. But, he wasn't interested. A pilot was later aired with a different actor and the same actress who did the ultimate series. Didn't work. Then, they tried it with Arthur Lake, and they didn't need Penny Singleton (the original Blondie).  

The second series, which ran a half-season, did have Mr. Howell / Mr. Magoo in the Mr. Dithers role.  His real-life wife played his wife in the series. Too bad they couldn't add an episode here.

Israel/Gaza News

President Biden recently released this statement:

The ICC prosecutor’s application for arrest warrants against Israeli leaders is outrageous. And let me be clear: whatever this prosecutor might imply, there is no equivalence — none — between Israel and Hamas. We will always stand with Israel against threats to its security.

The application does not mean there is an "equivalence," but it is quite possible that Israeli leaders crossed the line in some fashion. A more nuanced analysis clarifies the situation. The U.N. has now ordered a halt to an offensive that the Biden Administration has also opposed. 

There has also been some hysteria (Malcolm Nance, who I have respected since his testimony on waterboarding in the Bush43 Administration, has been retweeting unhinged stuff about it) regarding Ireland, Norway, and Spain recognizing the state of Palestine. As an article notes:

Most of the world already recognizes Palestinian statehood. More than 140 out of 193 member states of the United Nations have made their recognition official. But only some nations in the 27-member European Union are among them.

President Biden supports a two-state solution. We need more clarity regarding what local people believe on the matter. But, Palestinian statehood is not merely bowing down to Hamas or an anti-Israel move.

Eleanor Roosevelt was a supporter of international organizations and understanding. She helped write the Universal Declaration of Human Rights. I talked about that recently. I also just read On My Own, her biography discussing her years after leaving the White House. Good book. 

It also shows a woman with empathy and a sound approach to international affairs. We need that sort of thing when dealing with current conflicts.

House passes bill to ban noncitizens from voting in local DC elections

An individual who is not a citizen of the United States may not vote in an election for public office in the District of Columbia or in any ballot initiative or referendum in the District of Columbia.

D.C. passed a bill to allow resident non-citizens to vote in local elections. Current federal law disallows non-citizens from voting in federal elections. 

During the first 150 years of the U.S., 40 states at various times permitted noncitizens to vote in elections. That came to a halt in the 1920s when nativism increased and states began making voting a privilege for only U.S. citizens. Read more about the history before and after here.  

The nativism continues today as shown by the House bill passed yesterday, an excerpt found above. As annoyingly usual, coverage does not include a link to the legislation, including a vote breakdown.  For instance, I wanted to know the fifty-two Democrats who voted for this measure. 

Who are these people who are supporting part of the effort "to amplify false claims" of Trump and other Republicans of the danger of non-citizen voting? The evidence of non-citizens voting illegitimately is slight:

In 2020, federal investigators charged 19 noncitizens for voting in North Carolina elections. A national database run by The Heritage Foundation, a conservative think tank, shows that there have been fewer than 100 cases of voter fraud tied to noncitizens since 2002, according to a recent count by The Washington Post.

Only a few places now allow non-citizens to vote in local elections. As noted by the first link, very few non-citizens vote when they are given the chance. New York City gave non-citizens the right but the law is currently held up because of a negative lower court decision based on state constitutional claims. The case has been appealed.  

D.C. has the right, along with other localities, to allow non-citizens to vote in local elections. The current House bill overrides a 2022 measure. Congress currently has the power to interfere with their local sovereignty. They rarely did so though there were various attempts over the years, one succeeding not too long ago involving a criminal justice reform measure. 

Interference with D.C. sovereignty adds to the argument for D.C. statehood. A member of Congress can think non-citizens voting is a bad idea and respect home rule. There is also the duty to avoid this b.s.:

“The city council has decided they want noncitizens and foreign actors deciding who will serve as mayor and the local, attorney general here. As the body in charge of overseeing DC, Congress will not support such lawless behavior,” Speaker Mike Johnson (R-La.) said during a press conference Wednesday.

What "lawless" behavior is involved? D.C. passed a law allowing non-citizens to vote. The federal law against federal elections does not apply or a new bill would not even be necessary. A lawsuit against the law failed.  

As noted above, non-citizens voting was a long tradition in this country. Millions of documented non-citizens reside in this country, paying taxes, and being part of the community. Why should they not have a chance to vote for local leadership and ballot measures? An absolute rule against voting is dubious. What about non-citizens voting in school elections when they have children that go to a local school?   

Shame on the Democrats who voted with the Republicans here. I checked and my representative did not vote. AOC also did not vote. Maybe, both were in the Bronx at the counter-rally to respond to a Trump rally that took place there. I hope so. They should have voted if they were present.  

The criminal measure cited above had broad opposition, including by the D.C. mayor. The "election fraud" bullshit is also less likely to be aided and abetted by Democrats though unfortunately some went along here. It is unlikely that this House bill will pass the Senate and be signed (or left alone) by President Biden. I surely hope that is the case.  

Bottom line: D.C. statehood is a good idea and limiting voting rarely is. 

SCOTUS Watch: More Alito

Thursday was Opinion Day. Alito had two opinions, the first two from him for the term. Jackson had the third.

Where parties have agreed to two contracts—one sending arbitrability disputes to arbitration, and the other either explicitly or implicitly sending arbitrability disputes to the courts—a court must decide which contract governs. 

Jackson wrote another of a series of short opinions, many of them unanimous, at times (as here) with a brief concurrence (Gorsuch).  The whole thing, with headnotes and concurrence, was twelve pages. I am not totally sure why an opinion so short, in a case argued at the end of February, took nearly three months to be handed down.  

These cases concern the application of the Armed Career Criminal Act (ACCA) to state drug convictions that occurred before recent technical amendments to the federal drug schedules. 

Alito's second opinion involved the application of the Armed Career Criminal Act (ACCA), which has led to multiple disputes over the years. Jackson had the dissent, which Kagan and Gorsuch (who often supports limits on federal power) joined, Gorsuch not joining a portion that discussed congressional purpose. Jackson's voice continues to be heard. 

Justice Alito for Republican Justices, over the Dissent of Democratic Justices, Rewrites Racial Gerrymandering Standards to Help White Republican States.

Rick Hasen summarizes Alito's first opinion of the term, which involves a racial gerrymandering claim out of South Carolina. You do not want Alito to write that opinion. As Hasen explains, Alito yet again found a way to find clear error, which is rare when examining a lower court's findings, that conveniently helped a certain political side. He also acted all aggrieved that a state was alleged to be racist. How rude! 

The majority not only reaffirmed that federal courts should keep out of partisan gerrymandering disputes (so it was convenient that this was deemed to be a case of partisan gerrymandering) but made it harder to find racially discriminatory gerrymandering. 

Thomas concurred to go further and supported doing away with the courts being involved much at all. He also didn't go along with all of Alito's fact-focused / error correction approach. Yes, Thomas is only one justice, but he is quite influential. And, after thirty years on the bench, his law clerks and followers are currently as well, including on the federal bench. 

Kagan wrote the dissent. Kagan is the go-to for strong political process dissents, now assigned in these cases by Sotomayor instead of Breyer or Ginsburg. The dissent also leads to wider debates over how best to allot our representatives, including multi-member districts, ranked choice, and so on.  Addressing racism and other constitutional problems would remain. 

The result is a mix of factual and constitutional analysis. A notable thing is that the opinion firmly granted partisan gerrymandering was not only a "political question" for the federal courts to not decide (which Kagan and Sotomayor firmly opposed at the time) but is constitutionally appropriate (another matter). 

These questions will be left to a new Court or (unlikely for some time) a constitutional amendment (such as the one promoted by Rick Hasen's new book). Nonetheless, legislation can help. The Burger Court provided a restrictive application of civil rights law, including voting rights, and Congress amended the law. President Biden counseled the same:

South Carolinians and people across America deserve to have their voices heard and their votes counted. President Biden and I will continue fighting to protect Americans from discrimination at the ballot box, and we once again urge Congress to pass the John Lewis Voting Rights Advancement Act and the Freedom to Vote Act.

More opinions next Thursday. Order List on Tuesday. There is an execution scheduled. November elections are less than a half year away. And, maybe more flag news soon? 

(Of course, the answer is "yes.")

ETA: Kagan references in her dissent that Alito's argument was "upside-down," which some thought was a subtweet to the flag controversy. 

I think that is probably too cute. The flag news was recent. The dissent was crafted over the last few months. And, the term is not so atypical that the only explanation is a rather "in your face" dig. 

More Alito Flag News

The “Appeal to Heaven” flag flew outside the Alitos’ New Jersey vacation home last summer, along with a “2022” Phillies flag and a Long Beach Island flag.

I suppose the blog is not quite so "eclectic" recently with multiple constitutional-related material. 

The NYT reported that in January 2021, after January 6th, there was an upside-down flag flying over the Alito household for multiple days. 

Alito said his wife put it up for a short time in response to anti-Trump criticism. He informed a friendly Fox News reporter that the criticism included nasty language targeting his wife. This led to a "Stop the Steal" flag incident. 

Democrats and Republicans spoke against spoke against this sort of thing:

“It’s not good judgment to do that,” Graham told reporters. “I don’t know what role — he said his wife was insulted and got mad. I assume that to be true. But he’s still a Supreme Court justice. And people have to realize that moments like that — to think it through.”

Sen. Mitt Romney, R-Utah, said he hasn’t delved into the Alito matter but added, “Obviously it looks very unfortunate, and we ought to take a good look at it.”

Sen. Sheldon Whitehouse, D-R.I., the second-ranking Judiciary Democrat, said “we should investigate” the Alito incident. He said that it was “too early to tell” what a probe should look like but that it should “obviously” involve subpoena power, if necessary.

(Whitehouse on Laurence O'Donnell's program tonight reminded us that the recusal statute is a law. It is not just akin to the voluntary ethics guidelines. Justices do not just have life tenure. They serve for "good behavior." Alito and Thomas failed that test clearly.)  

The Chairman of the Senate Judiciary Committee, Sen. Dick Durbin, spoke out and said Alito must recuse from 1/6 related cases. A big one -- the Trump immunity case they had no business taking and might have done so with only four votes -- is pending. That's it from him:

Durbin:  “No, we haven’t got anything planned. I think he’s explained his situation. The American public understand what he did,” he said. “But I don’t think there’s much to be gained with a hearing at this point. I think he should recuse himself from cases involving Trump and his administration.”

Sen. Durbin has recently made noises about bringing back blue slips for appellate nominations. He's a pill. 

Dahlia Lithwick underlines we all must make this an issue. Nonetheless, the Democrats in the Senate have special power, including holding hearings and submitting subpoenas. See also, this proposal to bring light to the shadow docket.

President Biden has honored has honored the 200th judicial confirmation. Which is great. But, as he says the work is far from over, especially in certain unbalanced circuits. And, Trump was able to nominate three justices. 

I was not alone in wondering why we are just starting to hear about this now. But, it now seems that there was more to the story. We should also recall that the context here is years of Alito's quite public, including speeches, conservative religious views. The issue here is not, as one liberal law professor suggested, a "libertarian" or "Tea Party" mindset alone. No, contrary to his attempt to clarify, we cannot quietly include some "plus" here. The plus is quite notable in understanding the Alitos' beliefs and actions.  

[Jack Jenkins]

NYT followed up with an "Appeal to Heaven" flag later being flown over the Alito summer home various times for at least two months. He didn't supply an excuse for that one. The flag was flown during the 1/6 insurrection along with the upside-down flag. It has Christian nationalism connotations. 

Alito has the right to believe these things. We are quite aware that he is a "Fox News" justice. His conservative religious views have also not been a secret. These things influence his decision-making. On the other hand, they are less blatantly unethical or breaches of "good behavior" requirements. 

But, there is an obligation to avoid the appearance of bias. The first NYT article notes that "employees" of the Supreme Court broadly are prohibited to express partisan views (including bumper stickers). 

I am wary about the outer limits of that rule. Why should court marshalls be prevented from putting stickers on their cars or promoting political causes? Or a typist or cleaning lady? A justice is another matter. We saw this when Justice Ginsburg got in trouble saying how horrible Trump was before the 2016 elections. They are supposed to be nonpartisan. For instance, no partisan political campaigning for one side. You can be a Philly fan. 

I wrote Justice Sotomayor a letter a few years ago regarding the lack of bilingual transcripts. For instance, I think Puerto Rico-related cases should have a Spanish translation available. She thanked me for my concern and pointed to a FAQ section of the SCOTUS website written in multiple languages. 

But, she said she could not personally voice an opinion. I thought that was rather strict. But, it underlines the ethical rules in place. Partisan flags, especially related to ongoing litigation of national importance, should be avoided. 

Chris Geidner has called out Chief Justice Roberts and other justices to pressure Alito to recuse. Who knows what sort of pressure is being done behind the scenes. Nonetheless, a guy who won't show up voluntarily in front of the Senate Judiciary Committee or willing to explain (like Kagan and Jackson have) why he recuses is not showing much willingness to apply pressure.  

Dahlia Lithwick's statement that we as a whole have a role underlines the breadth of the solution. When President Biden used a commission to delay and push aside concerns about the Supreme Court, the responsibility was not his alone. 

I have said this before. I will say it again. Strict Scrutiny Podcast respects multiple people on the commission. They had one or more people on their show. Why not have them on to discuss the commission? No. They sneered at it. 

The January 6th Committee shows the potential value of a congressional investigation. The Democrats had control of Congress. They still control the Senate. They could have had hearings parallel to the subjects covered by the commission. 

A strong and vocal minority of progressives are pissed off about the courts. It has to be made a clear political issue, one that does not just come up now and then for us to shake our heads regarding the latest Alito or Thomas news. 

We are not talking about snapshots. Roe v. Wade being overturned is connected to Christian Nationalism and Trumpism. The New York criminal trial is winding down with closing arguments next week. If Trump wins, Alito and Thomas are likely to resign for younger replacements. 

Michael Cohen was prosecuted partially for these crimes. The National Enquirer company agreed to a non-prosecution agreement. Trump so far received no consequences.

Meanwhile, the D.C. case is being held up by 1/6 fellow travelers and people who enable them. And, we await to see what Alito's first opinion of the Court will be. 

Plus, what new "WTF" moment will arise. 

Nikki Haley Endorses Trump

We are winding down the presidential primaries with Kentucky and Oregon this week. Meanwhile, we continue to have local/state primaries. Fani Willis won her primary. New York will have one next month.

The presidential primaries quickly became symbolic, Trump not even showing up for the Republican debates. The main concern for the Democratic primaries was a chance to submit a protest vote addressing Israel. The latest Biden thing there was this asinine kneejerk comment about the International Criminal Court. A more temperate explainer. 

The primaries provide voters a chance for dissent. Kentucky and West Virginia Democrats supplied a sizable "no" vote. Some states notably used Nikki Haley for a protest vote, up to around twenty percent of the vote. The vote yesterday included a few Christie and DeSantis voters too!

Nikki Haley -- who strongly called out Trump in the past -- took the probably inevitable path (but see Pence) and announced today that she would vote for Trump. Moral coward, but we knew that. 

When she suspended her campaign, Haley noted that Trump would have to earn her voters. He did nothing to do so. Oh well. What can you do? Those evil Democrats don't support Israel or the Ukraine, or something.

(She supports Ukraine and will vote for a Putin Puppet. She also in an asinine statement alleged funding for the Ukraine and Israel is not "foreign aid" -- it's just aid to foreign nations.)  

A few Republicans are on record that they will not vote for Trump. Many fewer notables actually say they will vote for Biden. Haley won't even do that. We have one credible party at the moment. 

ETA: We can explain why people like Nikki Haley take this path in a variety of ways. One person focused on assuming Trump won't be around that long. Stay loyal and "this too shall pass." And, then, maybe you can step in -- she is young enough to be around for decades. I don't dispute that. 

The various epithets, including moral coward, generally hold true. There is one moral path to take in November. She did not accept it. The "I won't vote for either" path is not good. 

But, it is halfway credible. Going to great lengths to oppose Trump (she played this dance in 2016 too) as a truly horrible choice and in the end still voting for him is just plain disgusting. 

Opposing Lincoln: Clement L. Vallandigham, Presidential Power, and the Legal Battle over Dissent in Wartime

I read Opposing Lincoln: Clement L. Vallandigham, Presidential Power, and the Legal Battle over Dissent in Wartime (Landmark Law Cases and American Society) by Thomas C. Mackey. These short summaries of Supreme Court cases are helpful ways to learn about the cases and surrounding issues. This one was pretty good with some limitations.

Clement Vallandigham was an opponent of the Civil War. He was a Midwestern politician and congressman. He supported a negotiated peace, opposed using slavery as a war aim, and criticized threats to civil liberties including suspension of habeas corpus. CV also opposed the draft. 

An order by General Burnside (at the time in charge of a midwestern military district outside of the war zone) that among various benign things involving spies and such that targeted protest speech particularly bothered him. He gave a big speech to poke the bear, so to speak, including with general boilerplate about not following anything but the Constitution.  

Burnside eventually arrested him and tried him in front of a military commission. President Lincoln probably felt this was a bad idea, especially as a political matter, but defended his general. This is what led to his challenge regarding arresting or maybe even shooting some lowly private for desertion but not the person who encouraged him to do so. 

Since we are not talking modern-day free speech here, not even WWI, his "bad tendency" test is defensible. Nonetheless, even at the time, people were wary. CV's speech was largely a fully legitimate act of dissent with references to using the courts and the ballot box. He did not directly encourage people not to answer draft notices. The borderline elements were open-ended boilerplate that could be interpreted in various ways.

The Supreme Court eventually (after various bits of political drama outside the courts) held that they had no jurisdiction to take a case from a military commission. The case was unanimous. Justice Wayne wrote the opinion, and it appears Taney went along without comment. One justice for some reason did not take part. The bottom line: a military commission is not a "court" that the Supreme Court has jurisdiction to hear appeals. 

After the war, and ultimately this seems to be the determining factor, the Supreme Court held otherwise in the Milligan case. The book -- the cases are discussed back-to-back -- does not explain why they heard an appeal (again unanimously) military commission in that case. The litigant there was convicted of unloyal acts, not just words. 

The justices divided on the ability of Congress to use military commissions for events that took place in civilian areas. Some civil libertarians use quotable language about laws being in place in wartime. The concurrence argued Congress could, but did not, authorize such commissions. During WWII, Ex parte Quirin limited its reach, involving saboteurs outside a war zone. The line drawn there was "civilian" and "non-civilian." 

The book also has a rather bland final chapter that does not discuss later constitutional developments. The book very briefly alludes to a WWII case. Nonetheless, even a short book (these books tend to be under 200 pages) should have a conclusion chapter citing later events, including the cases during the War on Terror.  It is a serious deficiency.

Milligan later supported James Garfield. Vallandigham accidentally killed himself preparing a defense in a murder case. He wanted to show that the gun accidentally went off. Lethally, he won his case in the end. A great attorney to the end?

SCOTUS: Order Day

Alito Follies 

Of course, the big SCOTUS news that arose since they handed down opinions last Thursday was the Alito controversy. I have written about this, including updating my original remarks as I processed what was happening. it continue to provide lots of fodder. 

Chris Geider has a whole new thing -- did Alito vote with his portfolio after the latest trans scare thing popped up? 

Human Rights 

I read a well-written young adult book (it was updated recently, but I did not read that version) entitled The Universal Declaration of Human Rights by Susan Muaddi Darraj. I recently cited the declaration in one of my recent posts on health care since health care is one of the rights covered. 

Various covenants were ratified to help enforce the rights. The U.S. signed and ratified one involving individual rights. The economic and social rights covenant was signed by the U.S., but the U.S. Senate never ratified it. 

(We might still be obligated to follow it since it is recognized as binding international law.) 

A treaty is the law of the land. Internationally accepted human rights also influence the meaning of constitutional provisions. The Supreme Court has repeatedly cited international norms to flesh out the meaning of the Cruel and Unusual Punishment Clause. The Ninth Amendment is another provision for which the Declaration of Human Rights is relevant. 

Order List 

The Order List was an unexciting six pages. What stands out for me is that Kavanaugh and Jackson both did not take part in the consideration of one of the cases not taken for review. Jackson only said why. 

Steve Vladeck tweeted about this. It involved a GITMO case (a special concern of his professionally) and their previous service on the D.C. circuit, where those cases generally arise.  

Vladeck opposes going too far in court reform if what is proposed will be deemed "partisan" and/or will hurt the integrity of the Court. What isn't deemed "partisan" these days? And, without serious change, the integrity is hurt now.

The guy wrote a book on Court follies but I am left to believe deep down he is accepting of a bad Court that is just somewhat more reasonable about things. 

Roe/Doe Draft

I wrote some commentary the right to choose an abortion and health care generally in recent entries. I re-checked a collection of unpublished opinions of the Burger Court, which included the two abortion cases. 

The Roe draft was limited to procedural issues and vagueness. The draft followed the approach that I suggested -- the Texas limit on abortions only for the "life" of the woman is more difficult for a physician to apply than a general "health" (that the Supreme Court already held was not vague) exception. The latter is an open-ended concept that physicians are comfortable with applying. 

White's draft dissent did not do much to challenge it. His argument is that if a "health" exception is not vague, surely a "life" exception would not be just plain talked past why the two are different. White argued that there is less covered by a "life" exception. But, the majority still makes a valid case.

Other justices wanted to decide the general question regarding the right to choose so were not interested in the vagueness rationale. Nonetheless, vagueness was a credible approach in the Roe case. 

The Georgia law had a health exception along with a variety of other issues. The Supreme Court could have handled those issues, including the complicated physician committee process, and applied an open-ended definition of "health." This would have made the limited exceptions problematic. But, they went with a more open-ended privacy rationale.

Blackmun originally wanted to make Doe v. Bolton the main opinion. Roe v. Wade strategically was a better choice since the law was so extreme (only an exception for the woman's life). Nonetheless, it also would be extreme the other way -- why have a broad opinion with rules in place on how to apply abortion rights when you can handle it in a more limited way?

The original Doe v. Bolton opinion did not have the extended history portion or the discussion explaining how constitutional personhood arises after birth. It has an excerpt from Griswold but does not do much more to provide an in-depth discussion connecting past privacy cases to the right to choose an abortion. It is quite possible -- Douglas' concurrence summarized things and other lower court opinions provided more connective tissue. 

The draft references the right to obtain advice from a physician and medical care arising from the First and Fourteenth Amendments. If this remained in the final opinion, it would have provided a stronger backing to a general right to obtain medical care. 

Later opinions held that certain types of informed consent requirements were unconstitutional burdens on the right to privacy because they were coercive attempts to pressure women not to have an abortion. It was left to lower courts to occasionally rely on First Amendment arguments, including overturning a law requiring a physician to provide an ultrasound while talking about the unborn child or some such thing. 

If Roe v. Wade clearly recognized the patient-physician relationship had First Amendment aspects, there would be another (enumerated) source for such a right. Again, Justice Douglas references this, including his earlier Poe v. Ullman dissent though not in his majority opinion in Griswold. On the other hand, it would be more open-ended, a general right to health care not more limited to choices involving marriage and parenthood.  

The dissent in Rust v. Sullivan, involving funding, addressed the First Amendment. The majority argued the government has the power to selectively fund speech. Likewise, early abortion funding cases set forth the rule the government need not fund abortion services, even if it funded pregnancy care generally. A later opinion allowed for broad regulation of professional speech while being very strict (even as applied to licensed clinics) as to the rules for "crisis pregnancy clinics," treated as advocacy. 

Breyer's dissent in that case is quite correct. Professional speech, such as informed consent rules, is legitimately treated with a lighter hand than advocacy.  But, we should do so evenhandedly. A licensed clinic that does not provide some health options can legitimately be required to have an information hotline notice. Also, many so-called health regulations are thinly veiled ideological measures. They are more suspect.  

The draft notes that a woman is not isolated in her privacy, which remains in the final opinion. I find this argument dubious. The Catholic Church thinks birth control is immoral and not truly limited to the couple. Birth control prevents the creation of new life. Connecticut also argued that it helped promote adultery and other immoral things.  

Yes, pregnancy is more complicated because of the growing prenatal life. The general argument is that there are a diverse range of views, with particular moral and religious aspects, and it should be a personal choice. 

We have a clearer agreement respecting born children, who are constitutional persons. Nonetheless, even there, privacy rights do not disappear because their interests are involved. Multiple important privacy cases involve the right of parents to choose how to raise their children. Obviously, they are not "isolated in their privacy" here. Parents still have the right to make many different decisions affecting their welfare.  

The bottom line is that there is only a difference in degree respecting how privacy rights affect third parties. We need to draw lines there, including discussing the nature of prenatal life. Roe v. Wade could have done a better job of explaining the reasons for the viability line. 

I think it would have been helpful to wait to address that issue. The original draft avoided doing so as did various lower court opinions which vaguely spoke of possible greater state regulations later in the pregnancy. The laws were so extreme that it was not necessary to address such questions with specificity.  The opinions generally noted that there were decisions to be made. The specific nuances would come later.

The drafts therefore had some interesting and possibly better nuances than found in the final decisions.  

A final bit about the influential earlier Justice Clark law review article on the right to choose an abortion. The article provides a useful backing for the right to choose an abortion arising from the principles of Griswold. Nonetheless, it argues the legislature should have more discretion in drawing the lines. He might allow some form of "reform" legislation.

His constitutional argument would still require striking down laws like Texas, which would have meant many state laws were found unconstitutional.  The opinions that cited the Clark article tended to focus on the constitutional right theme, less on the last part.  

Bad Judges: The Need for A Democratic Trifecta

The latest Alito news is another data point on the need for judicial reform. We are not even going to have a chance for significant reform without control of the federal government. 

The presidency is fundamental. Trump is a menace to our country. The inability to even consider prosecuting him [even Georgia's trial will be held in abeyance on supremacy grounds -- states won't be allowed to prosecute a sitting president] is but one problem. 

There is a good op-ed ("Brian Greer was a lawyer in the Central Intelligence Agency’s Office of General Counsel from 2010 to 2018.") about the "inexcusable" delays in the documents trial. Of course, given the rules in place, Jack Smith cannot do much. There is a very high bar in place before an appeal would be successful. If so, the system is f-ed up.  

We have yet another legal expert making the case that Judge Cannon is not only incompetent, but she is also biased. I have seen people say the government has no chance of winning while also granting objectively it should be an easy case. She is likely aiming to be nominated as an appellate judge by Trump.  Admit it. It is not just that she is a judge appointed by Trump or inexperienced. She is blatantly biased. 

People need to bluntly say the system has to change. Asha Rangappa, a lawyer and former FBI agent, argues Alito should be impeached:

Justice Alito should be impeached. I don’t say this lightly, and this is not something that you do simply bc you disagree with a judge’s judicial philosophy. But he is deeply corrupt, irreparably biased, and legit bonkers. From the undisclosed trips to the weird letter in WSJ to public comments responding to criticism to flying the flag upside down in support of Trump/Jan. 6 (!!!!!!) to talking to FOX NEWS (??!?!??!!!) how in the freaking world can this Court be taken seriously??

Yes, he decided to talk to a friendly Fox News reporter (people have released a photo of the person with Mrs. Alito). Sen. Sheldon Whitehouse noted that without an official ethics investigation process, we are left largely in the dark. The Earth 2 option, perhaps, is impeachment. 

[The same applies to Justice Clarence Thomas, who I have long felt warrants impeachment. The latest is just more of the same here.]

Just like it was with Trump? We were assured that impeachment was not necessary. The criminal justice system would provide an alternative. In a Catch-22, we then were told that was inappropriate as well. 

The system in place is fixed.  The idea self-regulation by the Supreme Court is an adequate alternative is also ridiculous. I say this while granting that pressure can provide limited solutions. A dictator does not have to worry about being voted out. However, public pressure provides some safeguards. And, this is present in our more democratic system as well. 

The limits of the voluntary ethics guidelines show the limits of this approach. Basis civics teaches us about checks and balances. Nonetheless, the current majority refuses to adequately provide them. Republican senators angrily rejected even a subpoena of Leonard Leo and Harlan Crow.  This underlines the need for a trifecta to give us a shot. 

Knocking on wood so hard that my knuckles are sore, I think there is a good chance that both Biden and the Democrats in the House will win this fall. I am seriously concerned about the U.S. Senate, now divided 51-49. The few "reasonable" Republicans include Mitt "Biden should pardon Trump" Romney. Or, Susan "Kavanaugh is fine" Collins.

Maryland is one of the essential seats to pick up. It is now an open seat with former half-reasonable Republican governor Larry Hogan running. He now has come out as supporting codify Roe v. Wade. 

The Democratic proposal is not to his liking, however. He supports the one put out by Collins. Right. You know, the person who assured us Kavanaugh was fine. He argues that it is necessary to obtain a majority. 

First of all, obviously, that would require Democratic control of the House of Representatives. Second, it is unlikely that sixty senators will support it. Thus, and the NYT article does not cover this part, there would have to be an exception to the filibuster. Would he support that too? 

Senator Hogan would help empower the Republicans to control the Senate and do a lot of damage. This is true even with Biden as president. Biden will have to limit who he selects since Republicans would have the power to block anyone. I don't think the Senate would just refuse to confirm anyone. But, they would clearly make things harder for him.

Abortion rights are essential. Nonetheless, they are not the only thing necessary to secure a sane government. Republicans, who over and over again have aided and abetted Trump (even the "reasonable one"), have no business controlling any of the branches of the federal government.

People are rightly angry at the latest Alito news. The current supermajority is in place because of Trump's picks and Alito and Thomas. Chief Justice Roberts too though he didn't go along with the total overturn of Roe v. Wade. Why did we not have a trial of Trump in D.C. in March? The Supreme Court delayed it. [No, the answer is not "Merrick Garland."] I severely doubt this is because of Sotomayor, Kagan, and Jackson.  

So, the guy with the Stop the Steal flag flying over his house and the other guy whose wife texted a 1/6 conspirator about GITMO. Sen. Dick Durbin demanding Alito not be involved in any 1/6 related cases is as useful as his letter to Chief Justice Roberts to do something. 

Democrats demanding a binding ethics process or no funding is a better idea. Things like that won't stick without a trifecta. There might be ways to play "hardball" without control of all three branches. But, true change requires it. The Affordable Care Act required control plus sixty votes in the Senate. Now, there is more chance the filibuster won't block change. 

We can correct people when they say things like "Biden should expand the Court." But, when people condescendingly say nothing can be done about Judge Cannon without granting the system is broken for that being so, I draw the line. People who say the system is severely troubled regularly do not want to make the hard choices necessary to change it.

Bones in one of the Star Trek movies (not the inferior reboot) told Kirk he gave the team a fighting chance. A trifecta in November will do the same. Meanwhile, we need to know the stakes and fight back in the various ways open to us. 

When I say "us," I mean the people in government and each one of us. Being informed, speaking out, and doing what we can in our day-to-day lives included. 

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Bonus: One other thing to toss in is the need to reform the enforcement of congressional subpoenas. This should be a bipartisan effort because it affects both sides. It is too long in coming. 

The long saga to provide some consequences to Stephen Bannon's stonewalling the House of Representatives is a case study. 

Will he finally have to serve a few months in jail and pay a few thousand dollars in fines? Time will tell. It should not be a years-long odyssey to enforce congressional subpoenas. 

A comment online suggested why it was appropriate that Bannon over and above most others was prosecuted:

Distinguishing facts I can see: the gravity of the underlying investigation [January 6th], the relation of the principal to the item under investigation, the materiality of the information being sought, the political stunt factor, and the plausibility of executive privilege.

I think we should have a process where people cannot stonewall Congress while writing books about the stuff they refuse to show up and talk about. The current House of Representatives is controlled by clowns who have clown show hearings but the investigatory power of each house of Congress is a fundamental part of its work. It needs to be reformed.