Various thoughts on current events with an emphasis on politics, legal issues, books, movies and whatever is on my mind. Emails can be sent to almostsanejoe@aol.com; please put "blog comments" in the subject line.
The Supreme Court is in a mid-winter recess. As usual, however, various odds and ends occurred. There is a renovation project:
The Court will begin work next week to install additional lighting around the building and grounds, install a bird deterrent system around the ornate marble features of the West Portico, and perform a general cleaning to preserve the building’s exterior marble façade. The project, which will be completed in phases and during overnight hours, will continue for approximately eight months.
Orders
Two attorneys were appointed to defendant opinions below after the federal government did not do so. As noted here, this happened this term somewhat more than usual. The Court is reaching out to decide things.
Bowman Execution
Marion Bowman's application for a stay of execution in South Carolina was denied. He flagged alleged racism and competency of counsel issues.
It sounds like a fact-based matter that SCOTUS would not generally reach out to take. Granting his guilt, sounds like a horrible crime worthy of a long sentence.
He also said there is evidence the state's usage of lethal injection was problematic, including the secrecy of the details of the procedure. I have talked about this in the past and it's a serious problem overall as a matter of the First Amendment and due process.
The conservative justices have never had much concern for usage reliability issues even though there were many issues. So, this too was a Hail Mary.
He could have chosen the firing squad or electrocution. Those do not sound like great options though some experts think the firing squad is the "best" one for the person.
He has been confined for almost twenty-five years (see Justice Breyer's dissent in Gloss v. Glossip) and proclaims his innocence in the murder of a friend.
Bowman was the first person executed in 2025. He did not ask for clemency (suppose it was not likely to be granted), noting as an innocent person, life in prison was not something he could support.
Other Stuff
Justice Jackson gave an interview, including talk about the necklace that she wore during the inauguration.
Rev. Chloe Breyer (Justice Breyer's daughter) wrote an op-ed against the Trump Administration lifting a ban on immigration raids on "sensitive areas" which includes churches.
In November, she received the Presidential Medal of Freedom. She had been an activist (at least) since junior high when she told her public school teacher that she didn't want to say a prayer at the start of class. She made trouble.
Richards was a labor activist (her husband continued to be), political campaigner, worked in Nancy Pelosi's office and was the president of Planned Parenthood. Her daughters followed in her footsteps (her son became a chemist though also has an activist side), one being Kamala Harris' campaign communications director (2020).
I noted in my obituary entry about reading and listening in to some Cecile Richards material. Her autobiography (read the young adult version, which is available for various books) is also a good thing to check out.
The book contains some activist strategies. A chapter on her mom's run for governor offers some lessons. First, you can't win unless you compete.
Second, politics is ideally a "contest of wills between folks who are satisfied with how things are and those who are passionate about what could be better." You also have to expect some defeats. Richards was a one-term governor. George W. Bush won that time.
About starting organizations. First, be practical, and set achievable goals. Second, you have to be willing to ask and obtain financial support.
Third, when you start your own organization, you own the successes and failures. Fourth, master the organization rules of the road, including using a small room (so it looks crowded!), let everyone speak, do the basics including having a role for everyone and a next step, and overall have fun!
The final chapter was a lesson for campaigns and life. Family life is a team support. Pick your battles. Get comfortable making others uncomfortable. Use your talents to make trouble your own way. Life, like politics, is ideally not a spectator sport.
We need some of her energy in these times. We need organizers. Why didn't we have pussy-themed mass protests this time around? The need for fighting is ever more important. Since she wrote this book, people lost the constitutional right to choose. Or, as we should think of it, it is being denied. Jim Crow America denied rights that people had.*
The book was written in 2018, ending with the beginning of the first Trump Administration. We are at this again. As she noted in the chapter about fighting to defend Planned Parenthood in those days:
The fights we're facing -- for affordable health care, equal rights, bodily freedom, and more -- are never fully won. But the lasting legacy of this moment will be the generations of women it has inspired and energized.
Her husband (Kirk) and children (Daniel, Hannah, Lily) surely are still out there fighting in their particular ways. As Lincoln told us at Gettysburg, it is us the living who must honor those who gave their all.
I’m going ... offer three words of advice to Democratic politicians and MAGA opponents in general: oppose, oppose, oppose. And make noise. A lot of noise. Don’t make conciliatory gestures in the belief that Trump has a mandate to do what he’s doing; don’t stay quiet on the outrages being committed every day while waiting for grocery prices to rise. I can’t promise that taking a tough line will succeed, but going easy on Trump is guaranteed to fail.
Unanimous vote for Marco Rubio. No. Trump has no business being outside of a prison cell. Every day he is in power is a travesty. We cannot normalize things like this in a debating society. A strong Trump critic talked about the right of a president to pick their team.
No. We should not legitimize him. I understand some Democrats will pick their battles. But, there are degrees even there. Anyways, darn Cecile Richards looked tall. And, that haircut looks darn practical.
Rest in peace. The rest of us must fight.
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* Some people are cynical/realists about rights. They talk about "nonsense on stilts" when people talk about natural rights or rights that are not enforced.
I am not naive about reality. Nonetheless, our nation was founded on a sensible principle that some things are "right" even if they are not enforced. Rape is not "right" just because a local thug in power does it.
The Trump Administration is robbing trans people of their rights in the most disgusting way possible. They are calling people in the military who are trans immoral liars. They are wrong. Trans people have rights. We need to ensure they are protected.
I read the book (interesting perspectives though the writing style is a bit too arch at times) and now re-watched the film. The two leads are very good. It looks beautiful. The DVD has two commentaries.
The film had a somewhat dry spell once she had her little love affair (as in the book, it is annoying she didn't know he was not right for her while the captain warned her she won't have good judgment) but gets back on track when it skips ahead.
The film largely follows the book though rearranges the love affair some and disposes of her annoying son. There is more philosophical discussion by the captain in the book and Mrs. Muir seems somewhat more independent in the film. Gene Tierney isn't quite who I would associate with the book version.
Both have charms. A case where consuming both will be a rewarding enterprise. The t.v. show is a more sitcom-y enterprise and Mrs. Muir is more independent-minded. It's okay on that level.
I found Drool while looking for something else in the NYPL category. I'm not sure where the title comes from. The two adult leads have been in various things. IMBD suggests this was the director's only film.
The film has potential but parts work better than the whole. A mom has a lousy life with her abusive husband and son & daughter who don't respect her.
The daughter uses drawing to deal with her angry emotions. This includes a boy who she likes who just uses her for sex. A new (black) neighbor, a beauty products rep, becomes her friend and a chance for some fun. After an unpleasant moment at his job, the husband comes home to find them kissing.
This leads to the wife shooting the husband dead. The neighbor takes charge and takes the family on a road trip to dispose of the body. The owner of the beauty products business turns out to have repeatedly disposed of her husbands, providing a burial place.
The family finds happiness along the way. One visual evidence of this is the worn-down mom eventually becomes more youthful and energetic as the film goes along. She is not only alive in her fantasy life.
The film takes around thirty minutes of largely unpleasant scenes to get on the road. The scenes do have some verve with the actors doing a good job. Still, it's rather unpleasant to watch. The later scenes have some quirkiness. I skipped around some.
Drool doesn't really work as a complete film. Still, the parts do make it interesting in bursts. The neighbor comes off the best while the daughter is somewhat sympathetic even as she acts like a shit at times.
I do not reference here John Oliver's amusing usage of dogs to challenge the lack of televised SCOTUS oral arguments. Each justice and advocate is portrayed by a dog. There are a lot of fun videos on YouTube.
A daily SCOTUS history blog entry left it open for someone else to provide a list of cases decided that day. One entry of this commenter's popular series (he eventually put together a book) involved drug-sniffing dogs. This led me to examine the Supreme Court's various cases involving such animals.
The first case might have been a dissent by Justice Brennan involving a case not taken. A thirteen-year-old girl sued in a case arising from drug-sniffing dogs taken to a junior high school.
A later SCOTUS case noted that specially treated drug-sniffing dogs began to be a thing in the 1970s The incident took place in 1979 and included the dog sniffing the girl's crotch. The dog "alerted," resulting in a body search at the nurse's office.
Justice Brennan flagged here how drug-sniffing dogs can be a specific privacy concern, even more than something like a metal detector. Drug-sniffing dogs are large German Shepherd-type dogs. Some people also (this arose in GITMO, involving cultural taboos) might have a specific fear of dogs.
The Supreme Court in U.S. v. Place, involving luggage at an airport, reached out to decide that drug-sniffing dogs are particularly benign for Fourth Amendment purposes. They only determine if there is contraband, which people do not have a reasonable expectation of privacy to avoid.
The challenger specifically did not challenge the dog sniff. He won on other grounds. Multiple justices, including Blackmun (a moderate on Fourth Amendment issues), flagged that the Court should not have decided the issue without careful briefing.
(The search of luggage at airports is also a special circumstance though the result of the case shows that even then there are limits.)
The "no reasonable expectation of privacy" theme arose again in U.S. v. Jacobson. The case is far from a typical situation. A private courier handled a package and it broke open to expose powder that clearly appeared to be drugs. It was sealed and given to the government. They then reopened it and did a field test on a small portion of the powder.
A challenge failed. Justice White concurred while also arguing the majority's reasoning went too far. Justice Brennan (and Marshall) dissented. However, even if they granted the intrusion was minimal given the facts. We are talking about a minor situation here.
Their dissent made the important point that just because a search "only" determined contraband, it might still be unreasonable. A search is being performed. Your "effects" (in this case) are being interfered with in a way relevant to Fourth Amendment purposes. Your right to privacy, your legitimate expectation of privacy, does not go out the window because contraband is involved.
The details will matter. A field test to test a bit of powder that was already exposed is getting close to a "pure" law school-type hypothetical. The luggage in the earlier case was seized for an extended period. Dogs sniffing children is next-level stuff.
Illinois v. Cabelles involved drug-sniffing dogs used during a traffic stop. The two cases were cited to uphold the use of the dogs. The use of a field test for powder is not quite the same as the use of dogs. A dog sniffing luggage at the airport is also different. Justice Ginsburg's dissent emphasized the point.
Justice Souter also dissented, noting that dogs are not infallible. He would have logically applied other cases involving the usage of general crime investigatory techniques during traffic stops. As he noted:
They are conducted to obtain information about the contents of private spaces beyond anything that human senses could perceive, even when conventionally enhanced. The information is not provided by independent third parties beyond the reach of constitutional limitations, but gathered by the government’s own officers in order to justify searches of the traditional sort, which may or may not reveal evidence of crime but will disclose anything meant to be kept private in the area searched. Thus in practice the government’s use of a trained narcotics dog functions as a limited search to reveal undisclosed facts about private enclosures, to be used to justify a further and complete search of the enclosed area.
Florida v. Jardines finally applied neutral principles to protect a person's privacy. The difference was that a dog was brought onto the "curtilage" (protected area) around a house. A house has special Fourth Amendment protection. Nonetheless, a person and the closed containers in a car (effects) do as well.
Florida v. Harris is a reasonable opinion that puts forth a totality of the circumstances test to determine if a dog sniff was reasonable. Someone in the blog argued the opinion left open the possibility of the usage of unqualified dogs. I think that is overblown.
The opinion held the dog's skills can be challenged. Also, as discussed here [the source of the photo], we should be careful about unreliable dogs. That, however, goes to the specific reasonableness of any information used in a search. The constitutional test more likely than not will have many false positives.
Rodriguez v. U.S.set limits on the use of dogs. The Court held the traffic stop had ended, so the search and seizure was illegitimate. The dog sniff is granted as something separate from a normal traffic stop (license, registration, record check).
But, now, it is clearly allowed as long as it is done within the time when that other stuff is done. The police, however, cannot extend the stop past the normal traffic-related mission to also do a dog sniff.
I would have not established a precedent allowing the dog sniff as yet another add-on. Dog sniffs should be treated as a "search." Multiple cases show the potential for violation of privacy. They are not painless ways to find contraband.
The "reasonableness" test of the Fourth Amendment can allow for some balancing test. The use of bomb-sniffing dogs, for instance, is not the same thing. Likewise, time, place, and manner rules are possible in a general sense. Drug sniffs in airports v. outside your home and yes during a traffic stop.
A few justices were concerned about the widespread of using dogs. For instance, walking a drug-sniffing dog around the neighborhood as a roving (Rover?) search and seizure device. An alert would be a way to get a search warrant.
Florida v. Jardines shows that the usage of a dog can itself be problematic. It is worse when a search and seizure exposes non-contraband such as when police enter a home. But, the sanctity of your person, home, papers, and effects is generally protected.
The usage of specially trained animals and technology are helpful tools in crime control. They also have value for public safety in non-criminal contexts.
Nonetheless, they are not magical things that lack privacy violation effects. At least, to use the old test, that is a legitimate expectation to have.
The current Acting Solicitor General is Sarah Harris, a former Thomas clerk. She gave notice that the Trump Administration is thinking about or is changing gears on a few cases. This is normal behavior with a change of administration. Expect more of this in the future.
The Supreme Court granted three more cases in part to address a dispute involving funding of a charter school. It provides an opportunity to continue to weaken the separation of church and state, which hinders free exercise too in the process.
(Barrett recused. The conservatives don't say why unlike the liberals so we can only guess why.)
The Monday Order List is generally a housekeeping matter without anything much of note. Barrett didn't explain why she didn't take part in something. Thomas (with Alito) cites what they think is an abuse of habeas/ignoring the limits of AEDPA.
(Did Thomas want to find an answer to a recent opinion that held a lower court misapplied the rules against the defendant? Recall even Alito disagreed with the dissent, that time joined by Gorsuch.)
Monday's Order List is the last official action of the Supreme Court until late February. They have a public non-argument session (often for swearing-in lawyers) and a Friday conference on February 21st. Then, it is back to oral arguments for two more weeks.
The first execution of the year is on January 31st and we will see if there is any final SCOTUS appeal. There also will be other miscellaneous orders and SCOTUS-related actions until they come back.
Steve Vladeck discusses how the Supreme Court in the past few years has decided many more federal government claims, raising the temperature.
ETA: SCOTUS added another case (they usually do this on Friday; was it missed?) for argument, again speeding things along so they can hear it this term.
I was not interested in watching these games. After the Rams failed an upset late, it was to be expected that the Commanders could not manage to beat the Eagles a second time. It turned out to be even more depressing. The first two match-ups were close. This turned out to be a blowout.
Sure sure. Commanders with their new rookie who didn't play like one most of the time QB had a great season. No lie. Still not a great ending.
These two teams are due for further playoff match-ups. Kansas City and the Bills already are a familiar pair. And, again, I didn't want to see this because the ending was oh-so predictable.
KC goes up by three. Bills are stopped. They need to stop KC one more f-ing time to have a final shot. KC gets that necessary third down.
Kansas City had more than their usual share of close finishes where they easily could have lost. Yes, great teams manage to do that. But, this year, it was even more annoying. I'm so tired of them.
Not that I am an Eagles fan. But, them winning the Super Bowl would be a tad less annoying. I have no desire to watch the thing though. Blah.
I like Vera Farmiga and Andy Garcia and the concept of two parents (from different marriages) going out on their own while their children are on a college tour [thus the title] sounded interesting. A good mature adult comedy drama. And, overall, it was.
[Okay. I do feel like Vera Farmiga is someone I like as an actress but other than one film where she had a relatively minor role, it is unclear where I saw her. Other than multiple films that I know she is in but did not watch. She definitely seems like a cool person from watching her in this film.]
If you think the mom-daughter pair look alike, it isn't just good casting. They are actually sisters though the difference in age is significant enough that they could be mom/daughter in real life. Taissa Farmiga later starred in various horror projects.
The film is focused on the parents but we also see how the two children experience the tour in different ways. The two parents have some light moments but also have to address some serious struggles they are having.* The son comes off as the least interesting.
There is a stereotypical marijuana moment that is over quicker than it would seem to warrant though they later carefully have the children drive them home.** I probably could have done without the scene but it was okay overall. And, the set-up is done well.
I enjoyed the film and it was one of those nice little surprises that you come upon. Looking over some of the Wikipedia reviews, sure, it is not some classic work of art. The plot is overall not surprising.
However, it is done enjoyably and with talent, including helping us pretend they are on an actual college tour. Good cast overall, including some nice supporting characters. Always a good part of a successful film. Good overall pace. The whole thing rings true overall, the two stars have very good chemistry, and multiple scenes are impressive.
There was an outburst by the mother (also a bit forced) and the embarrassment by the daughter with the professor that was unpleasant to watch. I muted/sped along one and largely skipped the other.
I had no real problems with the rest of the film though the marijuana scene was a bit much and a scene in a fountain was also a bit forced. Also, not sure if they looked that wet afterward. Might be a continuity error. However, both of those things weren't too bad.
There is a DVD commentary track with Andy Garcia (also one of the producers), the writer/director, and another writer/producer. Interesting.
The film is from 2013.
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* The daughter is a bit too overhyped about going to college and is upset when her favorite professor bursts her bubble. She tries to call her mom but she is unfortunately getting high and dealing with things.
Parents do deserve to have some time to get through their own stuff. It's good to have some "me time." Your child will be able to handle things for a few hours especially if they still can just call their dad.
** The children don't seem to pick up that their parents had recently been smoking marijuana. OTOH, again, the effects seemed to be over rather quickly.
"I broke the law that day, period. Black and white," Pamela Hemphill told NPR's All Things Considered of the role she regrets playing at the Capitol that day. "I'm not a victim, I'm a volunteer."
Pamela Hemphill's response to Trump's blanket pardon of the 1/6 insurrection defendants was referenced. It warrants emphasis as an example of what should happen. Single role models can seem of limited idiosyncratic effect. We should not be too cynical about them.
People do change. They do learn. Hemphill again:
"It's like, how was I so naïve? Well, I see now how I was, because it's a cult and you get gaslighted, and they lie to you and say there's this deep state, and the DOJ is against Trump and all this garbage."
When a partisan like Liz Cheney dissents, it is one thing. When someone is directly involved, it is more powerful. Hemphill:
"It's like, how was I so naïve? Well, I see now how I was, because it's a cult and you get gaslighted, and they lie to you and say there's this deep state, and the DOJ is against Trump and all this garbage."
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Meanwhile, when Melissa Murray co-edited a book setting forth the Trump indictments, it was noted that various other nations have prosecuted leaders for wrongdoing. And, this was not a bad thing by rule. Everyone should be bound by law, including our leaders. To wit:
South Korea’s Impeached Leader Is Indicted on Insurrection Charges
This might appall certain members of the Supreme Court. Nonetheless, others might appreciate that "President Yoon Suk Yeol will stand trial along with his former defense minister and others who participated in his short-lived imposition of martial law." The rule of law is a good thing.
It might be a shock when readers see that he is in jail. So fast?! Surely not even four years is long enough.
A majority of South Koreans approved of his impeachment and consider him guilty of insurrection, according to public opinion polls. But Mr. Yoon’s die-hard supporters have called his impeachment “fraud.” Some of them shocked the country when they vandalized a courthouse in Seoul after one of its judges approved a warrant to arrest him on Jan. 19. Nearly 60 people were arrested in connection with that unrest.
Justice Thomas was confirmed in 1991. There are quite a few former Thomas clerks around, including as state and federal judges. The Acting Solicitor General is a former Thomas clerk. He has sworn in various people. Kavanaugh's connections with the Vance Family resulted in him doing the honors there.
(James David Vance reportedly had scheduling conflicts. Yes, I'm still not going to call him "JD.")
Kristi Noem is on the unqualified Trump flunky who is not Hegseth/Kennedy/Gabbard level TERRIBLE level when it comes to Trump appointees. She has the usual Trump Republican views. She allegedly even had plastic surgery to look more like a "Trump woman." She infamously killed her dog.
Governor Noem (South Dakota) was blocked from entering the lands of tribal nations in the state (or nearly all of them) after accusing some tribal leaders of benefiting from Mexican drug cartels. She has spoken about an "invasion" (which has legal and constitutional implications) over the Southern border.
Noem was confirmed by a vote of 59-34 with seven Democrats going along with some others not voting. Sen. Andy Kim (D-NJ) said he strongly disagrees with many of her views but hoped to work with her. Okay, senator. The list of "yeas" are:
Sen. John Fetterman (Pa.)
Sen. Maggie Hassan (N.H.)
Sen. Tim Kaine (Va.)
Sen. Andy Kim (N.J.)
Sen. Gary Peters (Mich.)
Sen. Jeanne Shaheen (N.H.)
Sen. Elisa Slotkin (Mich.)
I do wish more articles that discuss confirmations and legislation passed provide such basic details. Yes, I am partially talking about your NYT. Anyways, to cite some highlights (so to speak):
She has described high levels of immigration to the United States in recent years as an “invasion,” and she has supported restoring a policy that requires asylum seekers to stay in Mexico for the duration of their U.S. cases. The policy, in place during Mr. Trump’s first term, was heavily criticized by Democrats and immigration-rights activists.
As governor of South Dakota, she opposed accepting Afghan refugees after the chaotic American withdrawal from Afghanistan, and she sent members of her state’s National Guard to Texas to address the immigration crisis — a contentious move that Mr. Trump cited in picking her for homeland security secretary.
As with Pam Bondi, voting against Kristi Noem also would be a suitable response to some of Trump's early moves. One notable "nay" is the new senator from Arizona who voted for the Laken Riley Act.
To cite the CNN article:
Trump began his second term in office by taking a series of sweeping immigration executive actions that included declaring a national emergency at the US southern border and kicking off the process to end birthright citizenship, a move that prompted almost immediate legal challenges.
Eleven days after the September 11, 2001, terrorist attacks, Pennsylvania Governor Tom Ridge was appointed as the first Director of the Office of Homeland Security in the White House. The office oversaw and coordinated a comprehensive national strategy to safeguard the country against terrorism and respond to any future attacks.
With the passage of the Homeland Security Act by Congress in November 2002, the Department of Homeland Security formally came into being as a stand-alone, Cabinet-level department to further coordinate and unify national homeland security efforts, opening its doors on March 1, 2003.
The new department consisted primarily of components transferred from other Cabinet departments because of their role in homeland security, such as the Coast Guard, the Federal Protective Service, U.S. Customs and Border Protection (which includes the United States Border Patrol), U.S. Immigration and Customs Enforcement (which includes Homeland Security Investigations), the United States Secret Service and the Federal Emergency Management Agency.
Trump recently mused about ending FEMA. His administration will be particularly concerned about border issues, including promoting racist inhumane policies. Secretary of Homeland Security Noem will help promote those goals, tossing in some incompetence.
The Republican-led Senate disposed of the controversial Pete Hegseth nomination late in the evening on a Friday night.
It is somewhat embarrassing if they still can be embarrassed, for such an important position as Secretary of Defense to be disposed of in "take out the Friday trash" fashion. James David Vance used his first tie-breaker to finalize the confirmation.
The dissenters were two usual suspects (Susan Collins and Lisa Murkowski) and that new Trump dissenter, Mitch McConnell. There is no "courage" truly involved when it was known that the person still would be confirmed. The Republicans have a three-vote majority, allowing such token dissents.
These people knew Trump would do these things. They did little to stop it, granting two did vote to convict him in the impeachment trial the second time around. McConnell led the Senate when they delayed his trial until after Trump left office. He led the Republicans during the trial.
All three could have supported Harris as the only sane alternative. Also, there are "reasonable" types like Mitt Romney who voted for Hegseth. The last (and only other) tiebreaker for a Cabinet member was Betty DeVos, the Trump Education Secretary.
Pete Hegseth’s former sister-in-law, who submitted an affidavit this week accusing him of abusive behavior toward his second wife, issued a statement after the vote. “What happened today will make women who have experienced abuse and mistreatment even less forthcoming because the men involved in the decisions leading to Hegseth’s confirmation have actively perpetuated the mechanisms, including gag orders and fear of retaliation, that keep women silent,” said Danielle Diettrich Hegseth, the ex-wife of Hegseth's brother.
The NYT commentary also noted:
It is also a big win for this newly minted Senate Republican leadership. An early defeat on a nominee President Trump had personally vouched for would have been a catastrophe for them.
Win? Well, that's one way of looking at it. They "whipped" (to use a legislative term) their caucus into shape, including a military veteran who had her own history of sexual harassment, to confirm this patently unfit person. I repeat my disdain for these people. In a reasonable country, these people would not be given the responsibility to rule. They are patently unfit.
Accused of sexual assault, of rampant alcohol abuse, of cruelty towards his ex-wives, of serial infidelity, and dragging with him a paper trail of derisive comments about women serving in combat roles, he seems to have the temperament of a Princeton frat paddle.
On the resume side of things, his claim to fame is mismanaging two veteran advocacy organizations so badly that he was reportedly forced out, in one case requiring a forensic accountant to sift through the financial rubble.
The betting line is now on if ANYONE will be stopped. I suppose, maybe, Tulsi Gabbard? You would also hope Robert F. Kennedy Jr. would be deemed a dangerous menace. With talk that maybe one or two Democrats are Kennedy-curious (perhaps overblown), I would not bet on that.
Again, we knew this would happen. Since this is a dominance thing, it is also relevant to toss in something else that is happening. The Trump Administration has done multiple petty revenge-type acts, including removing Secret Service protection from multiple people such as Anthony Fauci.
This sort of petty bullshit is also dangerous. These people received protection because it was found that their lives were in danger. Protection is not given to just anyone. The AP cites the reason for one case:
President Donald Trump has revoked government security protection for former Secretary of State Mike Pompeo and his top aide, Brian Hook, who have faced threats from Iran since they took hard-line stances on the Islamic Republic during Trump’s first administration.
Trump's dominance campaign has various aspects (Mel Gibson is glad Trump is here since it means daddy has arrived and he's taking his belt off*). He wants us to become a nation of informers:
The Trump administration has spent its first several days in office waging a pressure campaign on the federal workforce. In early messages, the administration told employees that they had a new obligation to inform on other workers that may surreptitiously be carrying out DEI policies, and banned external communications at several agencies.
There has also been a slew of firings and an executive order that makes more people liable to be fired at will. The speed and extent this is being done has surprised some people. There is always turnover. The breadth, however, is another matter, especially regarding various civil service jobs. There should be an orderly process. Then again, we are talking about Trump.
Again, especially with Project 2025 (is someone checking off things done?), this is not too surprising. They are more organized now. The Trump-ifying of the federal government is going to be done in a more speedy and organized fashion.
At least, up to a point. Trying to do things super fast is liable to get you in trouble. There are practical and legal limits. For instance, the firing of at least twelve independent inspectors general late Friday might be against the law.
The firehose of the opening of the Trump term has so many angles to address. I will just toss this in by Steve Vladeck on Bluesky (his wife, a legal recruiter, also bemoaned the situation):
A hiring freeze is one thing; rescinding *accepted* offers of employment is just being cruel for the sake of being cruel, and upending the lives of countless young lawyers (and others) who now have to scramble to find alternative employment (including, perhaps, in entirely different cities).
Again, we knew this was going to happen. We have to do better, America. We cannot put into power -- even in a local business -- people who are unfit and who actively will do harm. Just the verbal bile he inflicts us with daily is problematic.
Anyway, now some Democrats are playing nice with Secretary of Defense Hegseth since he is in a position of authority. That is what you do. An employee at that local business who needs the job is not going to blatantly tell the person "screw you."
Sandy Levinson, a law professor, during the first Trump Administration, argued that there was a minimum level of competency necessary to justify the normal presumption of legitimacy given to executive acts. He argued Trump did not meet it.
Congressional Republicans have not shown any suggestion they will provide a special level of concern. This isn't a surprise. It is left to others to do so. The fight is long and the problems are diverse.
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* On Thursday, via his Truth Social platform, President Trump wrote, "It is my honor to announce Jon Voight, Mel Gibson, and Sylvester Stallone, to be Special Ambassadors to a great but very troubled place, Hollywood, California."
I first was aware of Cluny Brown because the book was written by Margery Sharp, better known by many as the author of the Rescuers (mice) children's novels. The film was brought up again after I watched another Ernest Lubitsch film, To Be or Not To Be.
The film stars Jennifer Jones as Cluny Brown and Charles Boyer as a refugee Czech philosopher in 1938 Britain. Brown has a love of plumbing and not knowing "her place" in class-based Britain.
The film is largely a satire of British society. Peter Lawford, later a Kennedy brother-in-law (until the divorce) has an early supporting role. He is quite concerned about what is happening in Europe but his idea of doing something about it is writing a letter to The Times and talking about how concerned he is.
The DVD was a Criterion collection deal with some interesting extras that talked about the film. There was also a radio version of the film starring Charles Boyer. Boyer was in many famous films of the day.
I found the film enjoyable -- the two leads were quite fun and the supporting characters were suitably clueless. I only watched about half of it though did watch forty-five minutes of extras. The ending is cute.
One scene I skipped was addressed in one of the extras. I also skipped some of the less interesting confusion among the supporting cast. I recall at least reading some of the book. I might check it out again.
The film is currently available for free on YouTube.
Anne Nicole Gaylor wrote a book entitled Abortion is a Blessing, which is particularly striking when we are supposed to treat abortion at best a necessary evil. "No one supports abortion" or so such. The horror!
Anne Nicole Gaylor and her daughter (pictured with Cecile Richards) Annie Laurie Gaylor started the Freedom From Religion Foundation largely as an abortion rights organization. They knew religion played an important role in opposition to abortion.
Annie Gaylor has spoken about how religion has promoted anti-feminist values. She is the co-president along with her husband (Dan Barker, a former preacher) of the organization today. They have one child. Annie is a fraternal twin. I can imagine the force of nature she must have been when they met in the 1980s. Barker has children with his first wife too.
FFRR is in place to "promote the constitutional principle of separation of state and church and to educate the public on matters relating to nontheism." It promotes freethought. They give various awards to people, including Cecile Richards (RIP). Watching the video, Cecile Richards looks rather tall.
Cecile Richards had a good energy for these times. I found a Vogue article that has some good stuff in it. For instance, there is a reference to an unofficial button that Richards really liked: “Don’t fuck with us, don’t fuck without us." Yes, that works fine.
Cecile Richards is the daughter of the great Ann Richards, who was the last Democratic governor of Texas. I recall the days of Molly Ivins, who was a friend of the Richards family. Cecile Richards became the president of Planned Parenthood. She was also the deputy chief of staff to Nancy Pelosi.
What is the work of Planned Parenthood?
“The average woman in America spends five years having children and an average of 30 years trying not to get pregnant,” says Richards, photographed by Leibovitz for Vogue in 2006. “That’s the work that we’re about.”
And, it isn't easy. From the article:
Richards, who is the daughter of the late, legendary governor of Texas Ann Richards, says, “I know it’s frustrating. My mom used to say, paraphrasing Edna St. Vincent Millay, ‘Life isn’t one thing after the other; it’s the same damn thing over and over again.’ I think . . . you have to realize: Just when you get sick of saying something is just when other folks are beginning to hear it.”
We are beginning a hard time. Just the beginning is appalling. But, we have to keep fighting. We can just doom and that is focusing on badmouthing Democrats. We have to retain our values and keep speaking them.
The Vogue article ends with a 50-ish woman cautiously approaching Cecile Richards.
“Are you Cecile Richards?”
“Yes!”
“Sorry to interrupt,” she says.
“That’s OK!” says Richards.
The woman stares at her for a second and puts her hand to her heart. “Thank you.”
“Oh, listen,” says Richards. “Thank you.”
“You bring tears to my eyes.”
“It’s going to be OK,” says Richards.
“Promise?” says the woman, smiling.
“We’re working on it!”
Richards spoke at FFRF during the first Trump Administration. She died as we were about to start the second Trump Administration. It appalls me that we are still fighting these battles. But, we are.
I wrote a substack about Trump pardons. I often post forms of such extended remarks in both places. It helps since the blog serves as a sort of first draft.
Native Americans
I wrote about the book The Indian Card. The author discusses how she is a member of the Lumbee Nation, which is not a federally recognized tribe (it is recognized as being Native American). In one of Trump's not offensive executive orders, he instructed various things to be done to address that.
Supreme Court
There was some reporting of a cowrie necklace that Justice Ketanji Brown Jackson wore to the inauguration. The necklace has various possible meanings, including as a talisman of protection. Some suppose it was some sort of symbol of dissent.
The justices allowed the enforcement of a corporate transparency law to go forward without addressing former Solicitor General Prelogar's request to address universal national injunctions.
Jackson dissented, arguing it wasn't necessary. Gorsuch, selectively (often let anti-Biden ones go), said he would address that matter when suitable.
Since providing executive discretion has a somewhat different connotation under Trump, this expected result might have more extensive implications. Maybe not in this case though.
[Btw, for completeness, Sotomayor also dropped an administrative stay in another case.]
Racial Equality
Trump overturned a series of executive orders going back the the Johnson Administration supposedly in a campaign against DEI, which is a bugaboo on the right. It will have much wider implications for the fight against racial discrimination.
[Make that FDR. I have seen some reasonable sorts question some applications of DEI, but overall, to me, it seems like unhinged hysteria with racist connotations. See also, critical race theory.]
Nicely timed for the Martin Luther King Jr. holiday! This all is part of a bunch of administrative moves that are a mixture of revenge and power-hungry:
The Trump administration is ordering all federal employees in diversity, equity and inclusion roles placed on paid leave by Wednesday evening, according to a new memo from the Office of Personnel Management.
The breadth is only touched upon here. The whole thing is just part of an executive order firehose as was warned beforehand. We knew who he was.
The Supreme dropped a housekeeping-type Order List yesterday, adding a rare win for a capital defendant.
The opinion was unsigned. Justice Alito (conservative on criminal issues) had a brief concurrence. Thomas wrote a dissent joined by Gorsuch (who regularly was conservative in death penalty cases).
An unsigned opinion of the court is technically only a statement that a majority agreed. We cannot assume those who did not voice an opinion went either way. Nonetheless, it is a safe bet that the opinion was 7-2.
Brenda Andrew, the sole woman on Oklahoma's death row (one of the few states that have an active death penalty), was convicted of murdering her husband. The Supreme Court noted:
The State spent significant time at trial introducing evidence about Andrew’s sex life and about her failings as a mother and wife, much of which it later conceded was irrelevant.
(A discussion over the usage of the term "slut puppy" might suggest what is involved here.)
The Supreme Court, citing Payne v. Tennesse, found this all unduly prejudicial. Payne is notable as a case that overruled a recent precedent blocking the usage of victim-impact evidence in capital cases. Justice Thurgood Marshall had a strong dissent, his last before announcing his retirement.
Roe v. Wade Anniversary
The sexism involved provides a logical bridge to remembering that today is the 52nd anniversary of Roe v. Wade. Women's equality is a special aspect of the right to choose along with privacy rights, freedom of conscience, health care, and many other things.
We can also talk about the Equal Rights Amendment. Michael Dorf, who is as usual a good read on current legal issues, has some thoughts.
I generally concur, again noting the text of the ERA is more open-ended than the Equal Protection Clause. I do think too much time has passed to consider it ratified, at the very least without congressional action. However, I share the open-ended approach to equality.
As Professor Anthony Michael Kreis notes on Bluesky, this is the moment to start to push back and provide a new framework is now:
Will the party cave and triangulate to Trump and usher in a wave of populism that’s culturally regressive? The time to start and formulate the argument for institutional rearrangement and a fundamental shift in thinking is now— and soon— or never. Whack-a-mole and polite gestures won’t cut it now.
Resistance is not just about winning at the moment. Conservatives played the long game to defeat Roe and we should do the same. Trump is providing a lot of fodder to do so, including executive orders.
We should also take time to honor Cecile Richards, former president of Planned Parenthood, who died this week. She was the daughter of Ann Richards, the outspoken former governor (D) of Texas.
Trump Executive Order
Trump dropped an executive order regarding capital punishment, which includes instructions for the attorney general to target certain SCOTUS precedents that limit the death penalty. It also instructed the AG to make sure the people on death row whose sentences Biden commuted are suitably treated (nudge nudge).
Also, she (Pam Bondi is due to be confirmed) should check if they could still be prosecuted by the states. I am not aware of such a proactive attempt to ensure that people are executed by hook or by crook.
The order also instructs the AG to help states obtain execution drugs. Ohio is one state that has not had an execution for some time because of the lack of drugs. The governor and legislature (both Republican) have shown to rush to address the situation.
The executive order is framed in the usual Trump tone with invective, dubious at best assertions, and so forth. Four more years of this, as with his existence as a walking lying machine, is horrible.
Liz Cheney's book is entitled Oath and Honor: A Memoir and Warning. Corey Brettschneider in 2018 published The Oath and the Office: A Guide to the Constitution for Future Presidents.Jeffrey Toobin wrote The Oath: The Obama White House and The Supreme Court.
Oaths of offices have some meaning and symbolic effect. The Framers thought so. The Fourteenth Amendment ties the disqualification clause to those who took an oath to uphold the Constitution.
They included specific text for the president's oath:
Before he enters on the Execution of his Office, he shall take the following Oath or Affirmation:– I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.
No "so help me God." That addition, like the usage of a bible or the Chief Justice swearing in the president, is merely traditional. Even if it has such a normal feel that people probably consider it constitutional.
Someone noticed that the Vice President has a different oath. Yes. The Constitution does not specify the text of other oaths. It does generally state:
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
Notice the requirement that someone "supports this Constitution," which is not expressly stated for presidents. The verbs ("preserve, protect, and defend") used, however, appear to do the same.
The vice president along with other federal officials takes an oath set by statute:
I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.
The exact wording changed over time; the current wording was set in 1884. The text is somewhat overbroad. Someone has to swear to "support and defend," for instance, when the Constitution only says "support." Ditto talk about "bear true faith and allegiance. Whatever that means.
The language is significant partially since there might be a First Amendment problem with an overbroad oath. Historically, there was a fear of "test oaths." Loyalty was supposed to be a voluntary act, not done out of compulsion. Justice Black argued in his separate opinion in the flag salute case:
The duty is a solemn one, and in meeting it we cannot say that a failure, because of religious scruples, to assume a particular physical position and to repeat the words of a patriotic formula creates a grave danger to the nation. Such a statutory exaction is a form of test oath, and the test oath has always been abhorrent in the United States. Words uttered under coercion are proof of loyalty to nothing but self-interest.
The default "so help me God" particularly is dubious, especially when it says "no religious test" right there. It also is somewhat redundant since an "oath" by definition often implicitly means "so help me God." I would hope that part is left out if someone affirms.
Sometimes, a justice will reference their oath regarding their duty to apply the Constitution. However, state and federal officials also take oaths.
The oath ceremony is not magic. Nonetheless, many people do feel specifically restrained not to violate their oaths. Not so much Trump. We shall see how Vance handles things.
I don't read many science books, partially because I find social science and history-type books easier to process. I do find various types of science interesting. It's a subject I should read more about.
Thus, the fact I found this book so readable is particularly notable. The author is a philosopher and carefully provides an explanation of the concepts in a down-to-earth way. The book was originally written in Spanish. She translated it into English herself.
The bottom line is that she argues many animals have a minimum understanding that creatures die and won't come back to life. They need not comprehend death in the complex way humans do.
But, when some animals "act dead," for instance, it is logical to assume others understand what that means. Animals have various forms of comprehension.
I welcome further books by this author.
I re-read this book. A two-hundred and fifty or so page book is not going to comprehensively cover an over sixty-year period with another chapter about the other chief justices. His longer autobiography did not do that. However, it is a good introduction in his gentle individualistic tone.
Don't expect too strong criticism of his colleagues as people but he disagrees with them on multiple issues. At times, you will say "Oh come on, John." Overall, it's good light reading for amateurs and court watchers.
Also, don't totally rely on everything he said. A blatant case is a reference to a case as being under the term of a chief justice when it was before his term of office. I also disagreed with his "six amendments" book on various grounds. However, he does sound like someone it would be fun to discuss things with.
Near the end of his life, Stevens changed his mind about Kavanaugh's confirmation after BK ranted and raved in his confirmation hearing. He later suggested some people chided him on that.
Kavanaugh, perhaps given Vance's wife being his law clerk, swore in the vice president today. Yes, I'm inclined to think James David Vance at least has the bare minimum to warrant being honored with that label. I still don't want to call him "JD."
I provided some closing/opening thoughts about the change of the guard at the White House at my substack and won't repeat myself overall here.
Other than some words in honor of the passing of the previous head of Planned Parenthood, Cecile Richards, now former President Biden (to be consistent on labels) used his last hours to drop a few more pardons and commutations.
He had earlier commuted around 2500 sentences involving non-violent drug offenses. A lot can be said about the need to expand the usage of the pardon power. Biden has still historically used it in comparison to others.
[The Biden White House website is now down and replaced with the Trump White House website. You can find former presidents' pages archived and this one will be as well. So, no links yet.]
For instance, Leonard Peltier will now serve the remainder of his sentence in home confinement. Peltier is a Native American activist convicted of murder of two FBI agents, who repeatedly has been the subject of political controversy.
The commutation is justified thusly:
Tribal Nations, Nobel Peace laureates, former law enforcement officials (including the former U.S. Attorney whose office oversaw Mr. Peltier’s prosecution and appeal), dozens of lawmakers, and human rights organizations strongly support granting Mr. Peltier clemency, citing his advanced age, illnesses, his close ties to and leadership in the Native American community, and the substantial length of time he has already spent in prison.
More notably, Biden provided presumptive pardons to certain members of his family (not Jill or his daughter) and various others to guard against unjustified attacks. He argues that wrongdoing should not be inferred.
Regarding the second set of people:
In certain cases, some have even been threatened with criminal prosecutions, including General Mark A. Milley, Dr. Anthony S. Fauci, and the members and staff of the Select Committee to Investigate the January 6th Attack on the United States Capitol. These public servants have served our nation with honor and distinction and do not deserve to be the targets of unjustified and politically motivated prosecutions.
You can read about a discussion of the constitutional usage of pardon power here. An early case (1915) is cited to show that a pardon "imputes guilt" but a later one (1927) argues pardons promote a public purpose.
They are not just "acts of grace," that someone could simply reject. For instance, the pardon power could be used to promote public peace in cases of public disorder. Insurgents cannot hinder this effort by refusing the pardons.*
Also, it is a bit absurd to say a pardon is always an imputation of guilt. Executive clemency is sometimes used because other means are not enough to address legal travesties. As an opinion that sometimes is wrongly cited to hold that there is no barrier to innocent people being executed stated:
Executive clemency has provided the "fail safe" in our criminal justice system. K. Moore, Pardons: Justice, Mercy, and the Public Interest 131 (1989). It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible. But history is replete with examples of wrongfully convicted persons who have been pardoned in the wake of after-discovered evidence establishing their innocence.
Biden's actions here are a red flag of what the upcoming days will bring. As he argues:
I believe in the rule of law, and I am optimistic that the strength of our legal institutions will ultimately prevail over politics. But these are exceptional circumstances, and I cannot in good conscience do nothing. Baseless and politically motivated investigations wreak havoc on the lives, safety, and financial security of targeted individuals and their families. Even when individuals have done nothing wrong—and in fact have done the right thing—and will ultimately be exonerated, the mere fact of being investigated or prosecuted can irreparably damage reputations and finances.
There has been some pushback on the value of these pardons but I think it is an understandable attempt to do what he could. The people involved can still be investigated, called to testify (now with less Fifth Amendment immunity), and various methods used to go after them.
But, criminal prosecutions are a serious matter.
Linda Kerber in Federalists in Dissent noted:
The dream of establishing in the new world a republic whose ideals would be classical, grounded in civic virtue, trusting in the integrity of the public and in the capacity of men of good will and decency, was not mere rhetoric. Republicanism was a word loaded with meaning, and the care of the survival of the republic of virtue, the fear that it would succumb to the corruption to which all acknowledged it was vulnerable, was real.
A thought that came to mind today.
==
* One lawyer suggested to me that possibly a person could functionally reject a pardon if it is enforced by using it as a defense during a prosecution.
I find this very questionable. A judge would have to accept the conviction. If they did so, they would effectively interfere with presidential pardon power.
The pardon to me is self-executing and is a matter of law once the president acts unless it has strings (Biden could have required an admission of guilt!). Judges sometimes must on their own raise jurisdictional limits to their powers.
I do not know the specifics in all respects but in principle, something like this would apply here.
The 8-9 Falcons decided to hire the interim head coach of the Jets. Good luck with that.
The Commanders/Bucs game was the only fully competitive Wild Card Round game. The Bucs made a key mistake and the Commanders won by three.
The Commanders had the one upset in the Divisional Round, outscoring a mistake-prone Lions team. I'm sorry I missed it. Kansas City did the usual -- got calls going their way, the other team had a messy game, etc. Net result: won game but other team had shot.
Washington has to play the Eagles again [the two split the season series] because the Rams (in the snow) fumbled twice in back-to-back series, providing the two field goal difference. They drove to the Eagles 13 in the final minute but with two yards to gain, that is as far as they got. The former Giants guy was key to the victory with two long runs scoring two TDs.
That left the Ravens and Bills to decide who would (hopefully) successfully beat Kansas City—who I'm so tired of. My first concern is beating Kansas City. Either team probably could do it. I like the Bills, but if the Ravens can beat KC, I'll be okay with that, too. Hopefully, though the Eagles will be favored, the winner will face the Commanders in the Super Bowl.
[ETA: The Bills won. The Ravens had too many turnovers. Still, they could have tied the game late if they had kicked the XP twice instead of trying for two earlier to tie. They didn't make it. They missed it again. So, they lost by two points.]
The college championship game is on Monday night, which seems a bit late. For those who care, and I don't, enjoy the game.
Josh Blackman at Volokh Conspiracy has had daily Supreme Court history entries for the last five or so years. It appeared that he stopped but turned out to appear to be some sort of glitch. This might still be a problem since there have still been delays, including today, for what used to be automatic posts at 7 A.M.
(Blackman is somewhat of a conservative troll but this was a more harmless thing that promoted case materials found elsewhere.)
I used to read the blog -- was there for the original Affordable Care Act legislation discussions where multiple people made up reasons why it was unconstitutional. The blog had various "these constitutional provisions need limits even though there aren't any, so let's make some up" entries, including involving the treaty power.
I stopped going but returned mid-last year. The history posts led someone to start his own entries, limited to actual opinions handed down as compared to things like birthdays. I also began to comment on the entries. One more chance for me to provide my .02.
January 19, 2023: Supreme Court releases the investigatory report regarding the leak of the Dobbs abortion opinion. David Lat discussed it and you can (1) see links (2) a conservative-friendly take.
Strict Scrutiny Podcast also had thoughts. Let's say, they were somewhat less supportive of the overall process than Mr. Lat. They also spoke about the original leak.
The report begins with a court statement on the "grave assault on the judicial process" involved. No, it is not talking about the overturning of Roe v. Wade and Planned Parenthood v. Casey in the slipshod way provided. The "extraordinary betrayal of trust" is the leak of the draft opinion of Dobbs.
There were other leaks of internal workings, including upcoming results. A full opinion? Not so much. Let me say I respect the privacy of the Court's inner deliberations. There are various benefits. Leaks might have its place. Not sure how useful this one was.
The report officially announces that it is not clear who did it at least with a high enough level of assurance to say. I think some people know who leaked and are not telling. I do not just speak of the leakers and the reporters involved. We will know eventually.
There have been various assumptions on who leaked & people cite different names. Some note, e.g., that the leak seemed to freeze the conservative position in place, helping the five-justice majority over the more limited concurrence by Roberts.
Others argued that there is a good case it was a liberal in part to promote electoral backlash. Why that would necessarily be improved by releasing it a few months early is somewhat unclear.
Ultimately, the biggest problem was the opinion itself. We had it because of the 2016 elections. It has already resulted in many problems and multiple deaths. It will continue to cause pain and suffering. The 2024 elections will continue the process by not providing a Democratic trifecta.
Instead, there will be some additional ways to limit the right to control reproductive liberty. How broad this will be remains to be seen.
