An Addendum with a General Lesson

I now often use my posts here as a first draft for my Substack (which gets single-digit more hits per entry!) as shown in the note at the top of yesterday's post. 

I added this to my book review. It deserves a freestanding mention.

Personal Comment

The book provides a lesson. It focuses on Ukrainians, including giving voice to victims, alive and dead. She provides personal accounts of her own experiences.

Amelina also believes it is fundamental to include history, including voices from those who spoke out in the 1960s. I am reminded of Heather Cox Richardson’s daily entries, which include pieces of history to remind us of context.

I try to include some context in my accounts. I acknowledge a significant focus on Trump and his enablers' acts. This is partially a result of the coverage. We should do more to turn things around and focus on the “good guys and gals.”

Remember when “empathy” was a bad word for judicial nominees? Empathy, when done correctly, is when judges step into the shoes of others to more completely understand their point of view. It is an important part of all kinds of judging.

It applies here too. I do not begrudge — up to a point — those who want to use certain platforms as a way to vent. Nonetheless, just spitting at people is not the whole answer. We need to think more broadly as the voice of resistance.

I ended last time with a summary. Trump’s way is stupid, harmful, and should be stopped. I added a fourth. There is another way. 

Let us try to express that too.

Looking At Women Looking At War (Ukraine)

[I talk about Trump's tariffs here. Also, an expanded version of this entry is found here.]

Victoria Amelina was (sigh) was a Ukrainian author and poet. When Russia invaded, she became a witness. This book is an unfinished account.

[S]he was thinking of a different kind of literary project: a book about the women who, like her, were taking huge risks to document the war. She would write this book in English, and in it she would deploy a purposeful jumble of interviews, diary entries, reports from field missions, Ukrainian history and even poetry. Such a book, she believed, wouldn’t only play its small part in holding the perpetrators accountable; one day, it would help to give “lasting peace a chance”. 

Victoria died from injuries after being injured by a Russian attack in mid-2023 while at a pizzeria. Her friends worked off her unfinished manuscript and notes. A collection of her poetry will also be released. 

Sirens:

Air-raid sirens across the country

It feels like everyone is brought out

For execution

But only one person gets targeted

Usually the one at the edge

This time not you; all clear

[A woman holds a photo of Victoria Amelina at a memorial service in Kyiv on 4 July 2023. Photograph: Alex Chan Tsz Yuk/Shutterstock]

The first section is a personal account of her reactions to the beginning of the invasion in 2022, including her trip back from vacation, leaving her son in Poland. His father was the head of international business and was not around. His funds helped her be independent. 

She opened her apartment to refugees and joined a group that reported war crimes and the stories of victims. She died shortly after taking part in the release of a war diary that she personally found buried. The author was killed by the Russians.  

Victoria Amelina left an twelve-year-old son and a message about the importance of telling stories, remembering history, and looking to the future. She noted that the law should be about people, collecting information in hope for future justice for victims. 

Ukraine fights on even if our nation is failing them.

SCOTUS Watch

Order List

The eleven-page order list suggested something was a foot. It was a mostly ho-hum Order List with Sotomayor (with Jackson) dissenting (with opinion) from cert denial in a case involving habeas: 

This case raises an entrenched Circuit split over an important question of statutory interpretation: Can a certificate of appealability be denied notwithstanding a circuit judge’s vote to grant it?

Alito and Kavanaugh recused without comment because, unlike the liberals, conservatives won't tell us why. I continue to find this wrong. 

Today In SCOTUS History

A blog provides a daily event in SCOTUS history, which also provides others to note opinions handed down that day and a Japanese student provide Japanese cases. It also allows others to comment. 

A recent entry in the daily case lists was HUD v. Rucker, which I found distasteful when it came out. It was bothersome no one dissented. 

Breyer did not take part since his brother handed down the district court opinion. The lower courts held for the the challengers. 

My pre-blog discussion is found here. Some of the links are dead, including the Michael Dorf essay. 

Opinions 

April brought some more opinions. 

Alito wrote an opinion for a unanimous court (when you lose Alito, you are in trouble) overturning a Fifth Circuit ruling blocking an e-cigs regulation. Sotomayor wrote a brief concurrence arguing the case was even easier than he said. 

Barrett wrote a 5-4 opinion involving a company called "Medical Marijuana Inc." The issue turns on a medication that supposedly didn't have THC, but led to repeat tests that showed it did. This ultimately led to the person being fired, which led to this litigation.

Holding: "Under civil RICO, §1964(c), a plaintiff may seek treble damages for business or property loss even if the loss resulted from a personal injury."

Barrett's opinion underlined its limited reach and how the challenger still has a lot to prove. Jackson added a paragraph to further her "When Congress speaks, courts should listen" mantra. 

Thomas (alone, wanting to punt) and Kavanaugh (on the merits via an opinion longer than the majority) (with Roberts and Alito) dissented. Roberts rarely dissents so that's notable. 

Alito's opinion was over forty pages. There were about sixty pages of opinions here. The justices split 5-3 on what Congress meant in the marijuana case. 

Solicitor General 

Sauer is a former federal prosecutor and Missouri solicitor general who successfully argued at the Supreme Court last year on behalf of Donald Trump in his bid for immunity from criminal prosecution related to the Jan. 6, 2021, riot at the US Capitol.

John Sauer, another Trump defense attorney, was confirmed as solicitor general by a party line vote. He defended Trump in the well named Trump v. U.S. and now the inmates have taken over the asylum. 

Harmeet Dhillon, an election denier, also was confirmed to lead DOJ Civil Division. She also opposed masks and supported anti-trans policies. 

Trump's SCOTUS Does Him a Solid

[This opinion dropped sometime late Friday afternoon. We didn't have one those surprises for a little while. We might want to expect some more.]

The justices are looking on as much litigation is going on in the lower courts. Sotomayor has spoken out generally about the rule of law. Roberts said you shouldn't attack judges. Let things play out.

A 5-4 majority (Roberts joined the liberals) held up a restraining order regarding education related grants held up because of DEI. Which again is FINE.

The short per curiam was a mixture of procedural with limited hints that the merits were off. The main focus was the idea that the government wouldn't get the fund back and the challengers didn't need them now. So, it's a limited Trump win. Okay.  

Steve Vladeck is all reasonable law professor and says, "wait until you get real upset, we don't know how bad this is so far."  Again, okay. If it was so trivial why did Roberts dissent (without comment)?  

Kagan and Jackson followed the three pages of the majority with nineteen pages of dissents. Kagan had a short dissent arguing (1) it was a misuse of the emergency [shadow] docket (2) there very well is evidence that the funds are necessary now.

Jackson (with Sotomayor) goes into more passionate detail. The majority is "beyond puzzling" and "baffling." There are "numerous" grounds not to do this. She doesn't think the "we won't get the funds back" concern is that credible. And so on. 

Coming Up

After the Order List on Monday, the next scheduled event is ten days later, before the holiday weekend. After the holiday, there are the final weeks of oral arguments. We might also see other orders, including one or more regarding April executions. 

Eric Adams Watch

Mayor Eric Adams was indicted on corruption charges.

For fake reasons, the Trump Administration was going to hold up the prosecution until after the election. Some conservative leaning prosecutors very publicly cried foul. It was a pressure campaign to coerce Adams to support Trump’s policies as shown by the Border Czar openly saying so in a joint television appearance.

Judge Dale Ho (aka the “good Judge Ho”) could not force the Trump Administration to prosecution. He did have the power to drop the prosecution with prejudice to deter future wrongdoing. Judge Ho spelled out why he did so in a long opinion.

The best of the bad options. The Trump Administration still has the power to bring new charges. OTOH, now the Adams does not even have the support warranting involvement in the Democratic Primary, hopefully long term that won’t matter.

If they want to prosecute (there are other possible charges) that’s fine. The problem is using the threat as a sword of Damocles to coerce a public official to support federal (immigration) policies. That has ethical problems as well as raised both due process and federalism problems.

For now, we are still stuck with Andrew Cuomo as an option in the Democratic Primary. One asshole down …

Dems Have a Good Day

Senator Cory Booker's speech was not technically a filibuster, but he did outlast segregationist Strom Thurmond. He had a lot to talk about with the Trump continuing to slash through government. Lots of people noticed and cheered him on, except for the usual "what does this matter" suspects. 

Rep. Anna Paulina Luna was in the news recently concerned about the JFK assassination. She's one of usual suspects in the Republican caucus. 

Luna, however, is also a young new mother (in her 30s). She supports proxy (remote) voting for mothers twelve weeks after birth. Luna suffered a difficult pregnancy and sounds a feminist message:

“You plan for one thing and it totally changes,” Ms. Luna said of her expectations of child birth in a recent interview from her office on Capitol Hill, while her 4-month-old son, Henry, napped in a rocker on her desk. (Ms. Luna says she has no child care and brings Henry to the Capitol almost every day she is in Washington, perching him on her desk through most of her meetings.)

“You’re being forced to choose between your career and having a family,” she said. “We’re in way too much of a tech age for that even to be acceptable. What happens if I have to vote on war?”

Yes, there is some selfishness here from someone who supports a party that doesn't care about the needs of mothers. As Prof. Liz Sepper noted on Bluesky:

The right scorns mothers. They hate us. They refuse to insure mothers, cut funding for infant and maternal health, work to defund public schools. No one mocks conservative women for their motherhood. But the right mocks liberals as ugly bad moms.

Rep. Luna, with the support of Democrats (including another new mother who had to go cross country with her new baby to vote against the continuing resolution) used a "discharge petition" to force a vote on her proxy message. Mike Johnson failed to block it, resulting in other votes this week being cancelled.

House Democrats allowed proxy voting during COVID. Republicans opposed it. Many said it was unconstitutional. Some, including Mitch McConnell, said it was wrong, but Congress has the power to make rules for its proceedings. The right answer if far from obvious. It's reasonable to have exceptions. 

On top it off, the Democratic candidate won in the Wisconsin Supreme Court race. This means sanity is retained there. Republicans (by smaller margins than before) did win both Florida special elections. 

It still was a good day.