"What is a Woman" (+ a 18th Century LGBTQ dispute)

I was checking C-SPAN and there was a segment entitled Agustín Fuentes, "Sex is a Spectrum - The Biological Limits of the Binary."  The guest was asked about Justice Jackson refusing a request to define "woman" because she was not a biologist. 

The person said this was mistaken. His answer noted that biology was a factor in determining the term. Ultimately, however, it was a cultural term.

Justice Blackburn, as is her wont in such hearings, was doing some trolling. Jackson, amid a lot of questioning, started her answer to the specific comment by laughing it off, saying she was not a biologist. Biological factors are involved here.

[I tried to find a full transcript, there being ones around, but could not find it. The video is out there.]

Judge (as she was then) Jackson, however, did not stop there. She added:

“Senator, in my work as a judge, what I do is I address disputes,” Jackson said. “If there’s a dispute about a definition, people make arguments and I look at the law and I decide. So I’m not —”

YES! The question in the context she will handle is legal. One damn throwaway comment should not determine our response, even if trolls LOVE (I have seen it) to sneer at it. 

Ditto Sotomayor's "wise Latina" remark. We can try not to be moronic children. I use that qualifier since many children are intelligent and are able to use nuance. For instance, many realize grandparents marry, even though they can't have children anymore. 

The term "woman" is a complicated legal term. 

In many of those cases, the courts did not limit the meaning of “sex” to genetic or anatomical characteristics present at birth or even to physical characteristics associated with gender generally. Instead, the circuit courts indicated that discrimination on the basis of a number of sex or gender-related characteristics, real or perceived, constituted unlawful sex discrimination.

See also a discussion of international law:

I argue the term “woman” as used in CEDAW means all of the above: biological, anatomical, genetic, gender performance, and/or gender identity—meaning any of the listed categories standing alone would be sufficient as would a combination of two or more categories. 

The legal definition of "woman" was relevant when same sex marriage was not a constitutional right. Different states treated trans people differently. A "woman" for marriage purposes might turn on chromosomes, what you were assigned at birth, or your status after a sex change operation. 

Jackson's off-the-cuff statement about not being a biologist was just that. It was not a carefully thought-out reply. It was a bemused statement that was part of a wider discussion. She ultimately (correctly) noted it was a legal matter.

The legal definition of a woman doesn't just turn on certain anatomy. Some people ridiculed the dispute. 

Duh, it depended on whether you have a penis. What about intersex people? One person was annoyed that I used "person" to talk about abortions (non-binary, intersex, trans), acknowledged the presence of intersex persons. They still wanted two boxes. So, what's the dividing line? 

Biology will factor in. Ultimately, she will apply legal definitions. There are disputes on the definition. She will have to look at the material and make a legal judgment. If the law includes a "third sex" (or more), as many cultures have over the years, that would factor in.  Sorry if it seems so hard, Senator.   

Vicious and Immoral: Homosexuality, the American Revolution, and the Trials of Robert Newburgh

Somewhat related, I read a book about a dispute arising from rumors that a British army chaplain committed "buggery" in the 18th Century.  

The book was interesting in various respects, but the whole thing was also convoluted. It dragged out for years and ended inconclusively. He spent a few more years as an army chaplain and then spent another 45 years in private life, largely in obscurity.  

I was not totally convinced by some of the attempts to connect the whole thing to the American Revolution. The book also probably could have been notably shorter. The disputes got to be tedious. 

The book is somewhat shorter than it looks since it has large margins. I read over half of it today.  

It was still a fascinating look into another era, including the mixed reaction to the allegations. A large part of the controversy was that the clergyman was seen as not properly masculine. His colorful outfit really pissed off one of his accusers.  

The book is by a historian who is openly gay.  

NYC Mayoral Race Update

Eric Adams's liking of Fox News is far from surprising. He is a prime kinda Democrat for that network. 

Zohran Mamdani met with congressional Democrats. Democratic leaders, Schumer and Jeffries, have not endorsed him yet. That is both aggravating and probably deep down not a problem. He is riding on a wave, and not being part of the old guard is part of his appeal.

I guess my representative deserves some credit, too. 

Supreme Court Watch: Odds and Ends

We will have the first scheduled (of three) summer Order List on Monday. First, some odds and ends.

[ETA: The Order List was just a page of rehearing requests denied -- as they basically always are.]

Death Penalty

Kagan and Sotomayor (without comment) would have taken a case to stop the execution earlier this week. The execution was significant. We won't know short-term how much.

With Bell’s death, the number of executions in the US surpasses last year’s total. The number of executions has largely trended downward nationally this century after peaking with 98 in 1999. From 1995 to 2006, there was an average of about 67 executions a year.

Bell is the eighth person put to death in Florida this year, with a ninth scheduled for later this month. The state executed six people in 2023 but only one last year.

We are still a significant amount away from even sixty-seven, which is a fraction of the people on death row, which is a fraction of the death-eligible population. COVID and some problems with execution procedures help to explain some of the delay. There was a drop-off after 2006. 

The Trump Administration encourages an increase in death sentences and executions. We shall see how consistent this uptick will be long-term.  

Voting Rights

The Voting Rights Act has not done great in recent years. Shelby County v. Holder defanged preclearance. Other cases made it harder to win. And, now Trump.

The Trump Justice Department will not be too reliable in defense of voting rights. Thus, private lawsuits are that much more important. Long-term practice says they are acceptable. An outlier position, backed by the Eighth Circuit, calls them into question. As Steve Vladeck noted on Bluesky:

Justice Kavanaugh, acting alone, has issued an "administrative" stay of the Eighth Circuit's decision that private plaintiffs can't enforce Section 2 of the Voting Rights Act—temporarily freezing that ruling while the full Court decides whether to freeze it pending appeal.

The Supreme Court decided to use a (rare) reargument to further examine voting rights. Many think the whole Court will also eventually take this case.  Voting rights advocates are worried. 

Odds and Ends

Sotomayor's dissent in the Department of Education case had a typo that was corrected. 

The website still had not added any saved URL pages on that page, though there are multiple links found in the opinions this term. Who, even at the Court, is aware of this? Well, I am.

A good summary of some troublesome lower court nominees from a religious liberty angle. 

Venezuela Prison Swap

A  prison swap raises issues that were handled by the Supreme Court on the emergency docket involving the Alien Enemies Act. I provide some discussion with links in the comments here. 

Lots of people were deported without due process. The conservatives provided minimal checks while enabling the Trump Administration in other cases. 

This swap -- dropped as a Friday news dump -- is a big story on its own. It also has a SCOTUS angle. 

An End of an Era: Colbert Leaving Next May

Stephen Colbert's contract has not been renewed. It was a surprise, and there is some speculation that it is politically motivated.

There has been growing speculation that both Colbert and Jon Stewart, who hosts one broadcast of Comedy Central’s “Daily Show” each week, could be under growing scrutiny from executives at Skydance Media, which is slated to acquire Paramount Global, the parent of both CBS and Comedy Central. David Ellison, who leads Skydance, has projected an image of being intrigued by the politics espoused by President Donald Trump, who Colbert and Stewart routinely skewer in monologues and commentary.

They say it is a purely financial decision. Late night is no longer as profitable. Still, he has been a money maker. And, they are not replacing him. 

They were going to renew (well before) the contract of the show after his. Then, she didn't want to do it. And now they will have no one. 

I am not a consistent watcher of the show. His monologues can be funny. OTOH, they are often too Trump-focused. He needs to diversify more. Yes, you have to talk about him. There is other news out there. 

I check when the interviews look interesting. The "B" segment can be amusing. The "meanwhile" segment always seems tiresome. 

He always seems like a good person with a depth that sometimes comes out. I think maybe not enough, including really creative bits that he sometimes does.

The opening monologue when he came back was both funny and took a dig at his company.

Colbert in recent years seems to be on half-time. He has a lot of vacation time. He has four episode weeks. And then he does his "questions" segment with a guest or something that makes even one of the four episodes seem a sort of "bonus" episode. So it sometimes seems to be three episodes.

I am not sure how much he is really into the job. Not saying he is phoning it in. Still. He has been doing this for about a decade. Doesn't seem like he is on a high lately. Is he, deep down, too upset at the news? Don't think he needs the money. And, he can do other stuff.

Okay. So, hopefully, he uses his final days to give us something special. And, wish him well for what he decides to do next. I don't like his toon news segment.

Megan Stalter was a voice actor on that show. She popped up in a strange segment on Monday. The audience (and Colbert) seemed uncomfortable. That doesn't usually happen -- some in the audience appeared to simply not like the bit she was doing. 

Colbert often had authors and other less known guests on his Comedy Central show. The interviews were often quite good. He sometimes has them on the late-night show. They are good. I think he should have a few authors and other such people regularly.

I'm not crushed, but huh. Let's see how this goes.

ETA: Trump has gleefully responded to the news. What would you expect? Overall, I don't think the financial argument is just a pretext. Still, it's hard to believe that is all that is at stake here.

Also, a reminder of Colbert's basic goodness. He should probably provide a few more commentaries on the show. I'm not talking a daily testimonial or something. Still, when he gets serious and talks from the heart, it is often good television.  

Eric Adams Receives (Limited) Support from Police

13 Law Enforcement Unions Endorse Eric Adams in N.Y.C. Mayor’s Race

Not surprising that law enforcement unions endorse a former police officer over a Republican who cosplays as one. Plus, Adams is the semi-MAGA candidate.

Numbers can be misleading:

The largest NYPD union, the Police Benevolent Association, was not at the event. Sources told CBS News New York the PBA wants to go through its own endorsement process and has not yet made a decision on who it will support in the mayor's race.  

He also has problems with stability:

He cycled through three police commissioners before Jessica Tisch’s appointment in November, the first mayor to have that many in a single term since the 1930s.

Zohran Mamdani has left open keeping Jessica Tisch. People have assumed he is just about defunding the police. The guy who is seriously about gaining power to destroy the institutions he oversees is Trump.

Adams' law enforcement endorsements come at a critical time in the campaign, after former interim NYPD Commissioner Tom Donlon filed a lawsuit Wednesday accusing the mayor and top brass of running the department as a criminal organization. 

In the lawsuit, Donlon claims that he was commissioner in name only and was removed from the role when he tried to report corruption and misconduct. He accused the mayor of giving real authority to NYPD members who were loyal to him, alleging the group operated without oversight, enabling sexual predators and burying misconduct investigations. 

Adams has a history of helping sexual predators. See his relationship with Donald Trump. More:

His lawsuit follows one filed last week by four former NYPD chiefs who claim they were retaliated against by the Adams administration after they blew the whistle on corruption within the department’s highest ranks. 

Okay. There is a reason that Democrats weren't going to vote for this guy in the primary. The polls suggest Adams still has significant support, though he would lose in a one-on-one campaign versus Mamdani (Cuomo would win there). 

Republicans are bad at being fiscal conservatives. They have a reputation for being better than Democrats. They are not. 

They also have a reputation for being tough on crime. That is also a mixed thing, especially regarding results. Trump has supported lots of criminals, including himself.

Eric Adams is a bad choice. He isn't even that strong, one issue you would think would help him. Being indicted didn't help there. But there is a lot more. 

Cuomo, who lost the primary and has his own problems with the law, is also a bad choice. Let's vote for the other Democrat, who is also conveniently running on that line. 

If you are a Republican, maybe you want to vote for Curtis Sliwa. I don't think he has the experience and serious policy chops to warrant that. Still, I understand the sentiment on a partisan level. Better than voting for Adams or Cuomo, probably.

Cuomo these days might be Trump's choice, now that Trump made Adams his you know what. Cuomo definitely has Trump-lite vibes in various respects. 

Vote Mamdani. It isn't too hard. If you aren't a progressive, just consider the alternatives.

If you are a conservative, fine, vote Sliwa if that is your jam. Mamdani will only lose, however, if there is a serious failure from the Democratic side. And, even then, splitting the vote will ease the blow. 

Eric Adams' having problems with the police underlines that the other options are not ideal. Cuomo has already lost. He had to resign being governor.

Again, it isn't THAT hard. 

Mets Update

Mets wound up a half game back of the Phils after basically breaking even in the final few series. Both teams have had some horrible baseball. Time to start fresh. The Mets component did well overall in the All Star Game. Diaz blew the save. This set up a new home run tiebreaker. Alonso was the third guy but wasn't needed. NL won. 

SCOTUS Summer Trump Enabling Watch: Department of Education

I discuss the latest Supreme Court enabling, a 6-3 no-explanation order allowing Trump to continue his efforts to abolish the Department of Education. Also, it's okay to call them illegitimate. And, Trump 2.0 lower court judicial confirmations begin. 

Open Primary in NYC (and DEI Again)

In 2023, Common Cause New York issued a report on New York’s “unaffiliated” voters, who represent more than a million voters in New York City and are now the second largest voting bloc citywide.

A local op-ed opposed putting an open primary on the ballot in New York City. It did not necessarily oppose the concept. Nonetheless, it argued that more study should be provided. [ETA: Never mind.]

The argument appears reasonable. We are having an atypical mayoral election this year with at least one major third-party candidate (Eric Adams). The unaffiliated voters weren't the only ones unable to take part in the primary. The Republicans did not have a contested mayoral primary.

Mamdani appeals to a plurality of voters. Republicans are a minority (only about five members of the city council are Republican). The result is that there is a middle group who wish for a third candidate. Adams and Cuomo, however, are dubious options for certain non-ideological reasons.  

I think an open (or "jungle") primary in an area that is strongly one-party makes sense. The alternative might not result in a fair representation of the will of the electorate. Curtis Sliwa is not a typical Republican. 

OTOH, if we are going to change how we vote, it should be done carefully. So, I find the op-ed convincing. 

Diversity ensures representation among qualified persons across race, national origin, sex, gender, sexual orientation, disability, age, socioeconomic status, military status, shared ancestry, parental status, persons who live in rural communities, and more, so that institutions reflect the communities they serve.

DEI came up on another blog. It is a favorite target, and some people conclusively say it failed. I have talked about this issue before. It still bothers me.

DEIA (Diversity, Equity, Inclusion, and Access) is fundamentally a good thing. It is not just about race (or sex). It has quite a few aspects that few will oppose across the board (e.g., disability access or religious accommodations).  

DEI (the "A" is often left off) is used as a buzzword. It is more political theater than an honest attempt to address the substance. 

Some aspects will be controversial and/or problematic. Others are fine. Others are good. 

I will die on that hill. Well, I will die on many hills. 

SCOTUS Thoughts

The author (GM) of an upcoming book on Justice Robert Jackson's concurrence in Youngstown has been blogging about research for a new project involving the Bayh Subcommittee on constitutional matters. 

The first link talks about Justice Robert Jackson's concern about limiting executive power. The current Justice Jackson has also been quite vocal about that. Rightly so. She has also talked about it in interviews.

(There was a third Justice Jackson, but no one cares about him. Still, it's a good trivia question.) 

GM also cited something involving a college student's interview of five justices involved in Miranda v. Arizona. I was able to find it for free via the NYPL research database. 

Justice Harlan referenced justices being "umpires" on constitutional matters. The framers of the Constitution used the term as well, including about Congress. John Roberts didn't invent the term, though he did use it misleadingly as a matter of restraint. 

Justice Clark noted the Constitution as a "living document." At least one other justice said so during the Brown v. Board of Education oral argument.  This should be deemed obvious. 

Justices Black, Douglas, and Stewart also contributed. Justice White changed his mind about doing so. Justice Brennan turned down a request, noting he felt it improper. The student worked for someone in Congress, who helped smooth things along.  

Upcoming Execution

Michael Bernard Bell is scheduled to be executed by Florida next Tuesday. He murdered two people accidentally, thinking he was killing the person who took the life of his brother (officially in self-defense). 

(Since he killed two people, even if he was right, Bell would have murdered someone else in the process.)

Bell also fired into the crowd while running away. Plus, he was separately serving time for killing three people, including a toddler. So, yes, few people are going to be crying about his death.

His lawyers' latest bit is alleging testimony used to prosecute him was coerced and overall tainted. 

There is a final appeal pending at the Supreme Court on this issue. I will be shocked if it amounts to anything but a "brief" order merely stating the petition is denied. I will update when that happens.  

The primary problem (in my view) is that he was prosecuted thirty years ago. Breyer (see here) continues to be correct in flagging the problem was executing people after so much time. Ginsburg joined his dissent there, and Stevens talked about it separately. I wish another justice would flag the issue. Jackson is busy. What about Sotomayor?

Michael Bell is not reportedly causing trouble in prison (at least in the articles I saw). He should continue serving time for his heinous murders.  

ETA: Sotomayor and Kagan (not Jackson?) would have decided the claim relating to when federal courts can consider evidence that his lawyers allege was improperly withheld. No justice explained their vote.

When Sparks Fly

 

Meghan Markle was in two Hallmark Channel movies. I talk about them here. I rewatched (if a bit late) this one. It was pleasant, and my general sentiments are the same. 

Continue to Say No to Cuomo

I respond to a discussion about an appeal to consistently supporting the Democratic nominee. I agree, but am still bothered, particularly that Cuomo's sex crimes continue to be underreported. 

SCOTUS Watch: More Summer Trump Enabling

The Supreme Court had a case involving Trump's plans to reduce the federal workforce for over a month. 

It decided to release a thinly argued "go right ahead for now" order only now. As Justice Jackson notes:

[D]espite this fact-bound determination and the extensive fact-finding that supports it, the Court now cavalierly concludes (in just one line) that “the Government is likely to succeed on its argument that the Executive Order and Memorandum are lawful.” 

We can only assume what happened other than Justice Jackson taking the time to write a solo dissent. 

On Tuesday, the Supreme Court blocked a lower court order that temporarily stopped President Donald Trump from laying off tens of thousands of federal workers and effectively dismantling congressionally created agencies by presidential fiat. Six weeks ago, Judge Susan Illston, a judge in California appointed by President Bill Clinton, explained at length that Trump was asking her to either declare that dozens of past presidents and congresses “did not properly understand the separation of powers,” or to “ignore” what the executive branch was plainly doing. “The court can do neither,” Illston said. 

This is another case of an extensive district court ruling lifted with little or no comment. This time, even Sotomayor went along. She briefly concurred. 

Sotomayor agrees with Jackson that Trump cannot reorganize without congressional approval. She argues that the plans themselves are not involved here. 

The unsigned order acknowledges this. Nonetheless, Jackson explains how the district court judge carefully explained why the Administration was acting unlawfully and why it was appropriate to leave the lower court's injunction in place. 

The court of appeals left it in place. Why should the Supreme Court second-guess the district court? 

Mark Joseph Stern, on Bluesky, noted that Sotomayor's concurrence implies a "deal" of some sort. Toss in the length of time this took to be decided. However, it is far from clear how much the "damage is limited." Are we still hoping for that? 

Another liberal notes:

I have no problem with Sotomayor's concurrence telling District Courts that they can still (as of now) stop actual plans given that the votes to maintain the stays weren't there, but it's still very hard to imagine stays of specific plans surviving Roberts's shadow docket.

The question then becomes, what is the value of that? District courts can try to "stop actual plans," but if that doesn't survive, what does (yet again) overruling a district court judge get you? Jackson explains why the judge was correct here. Sotomayor ("even Sotomayor") blesses overruling them. For what? 

Kagan could have concurred to say that while Sotomayor would continue her cred as a strong dissenter. Kagan has the role of the "reasonable liberal" who still believes in some institutional regularity. If Sotomayor is going to enable the Trump Administration, it should be for something truly significant. As Jackson says, especially at this moment, there is a reason not to do this. 

Why can't the justices just enjoy their recess without enabling the Trump Administration for at least a little while? Or, just release this before now? Oh well.

Amy Howe (SCOTUSblog) actually bluntly said only Jackson dissented, violating the assumed rule that you can't assume justices concurred in such cases unless they explicitly said so. I'm fine with that, too.

ETA: A small bit of sanity. 

The Court rejected Florida's request for a stay to let it start enforcing a state law that creates state-law crimes for federal immigration violations. A lower court held that it was pre-empted by federal law.  

The stay request was rejected without comment. 

Dave's World

 

I watched this show when it was first on, though for some reason stopped. NYPL has a copy of Season 2. It is thinly based on his life (e.g., he has one son; the show has two, neither named "Rob"). IRL, he also divorced his wife on the show early in its run. The show is a comfortable watch with a charming "Beth" and an amusing assistant. 

Happy 4th of July

 

Some thoughts for the holiday. 

Supreme Court Watch: More Orders

I expected a long "clean-up" order list with a bunch of statements and dissents about a variety of cases not taken from the usual suspects. We had less of that this time. Monday's Order List only had a few such things.

(Last year, we had a fifty-three-page final order list. This time it was twenty fewer pages with Sotomayor and Thomas each discussing two cases apiece.)

Today's final scheduled order list before the summer lists was only four pages long, akin to a list after a normal conference. The big news is that they took two cases involving trans athletes. Another case involves regulating where offensive protests can take place. 

The Court did not grant an appeal of a state court opinion protecting the right of minors to have an abortion in some cases without their parents' permission. The challenge raised parental rights claims. 

Alito (with Thomas) wrote a statement that said it provided a bad vehicle for appeal. Nonetheless, not taking the case should not be inferred to agree with the ruling below. The implication is that parental rights claims (at least here) still might have merit. 

Parents of trans children might be an exception. 

Coming Up

For your planning purposes, summer order lists are scheduled to be issued on Monday, July 21; Monday, August 18; and Friday, September 5, 2025. Summer order lists usually consist of actions taken by the Court on motions in pending cases, petitions for rehearing, and other miscellaneous matters. Emergency orders, such as in applications for stays, will continue to be released as required.

There is no scheduled upcoming conference, but it is likely to take place at the end of September. Meanwhile, they are taking a break, though they are still officially able to do business. 

As Steve Vladeck has discussed, before around 1980, the Court truly was in recess, and individual justices had to act in their individual capacities. That is not the case now. They will hand down scheduled orders and can provide others (including for the two executions scheduled this month) as required. 

Trump-related stuff will continue. Stay tuned. 

ETA: The Supreme Court had two order lists, one on Monday and one on Thursday. I was tricked into thinking we were done for the holiday weekend. 

We were not. Another "clarification" of a previous Trump-enabling decision dropped.

Kagan concurred -- she didn't like the first decision but thought the request logically followed from it -- while Sotomayor (with Jackson) dissented. 

The unsigned order references the "provocative" dissent without adequately answering it. 

Happy anti-tyranny day, I guess. 

Trump v. NYC

The MAGA bunch is attacking the winning NYC Democratic candidate for mayor, Zohran Mamdani, as a dangerous commie and some such. They are very concerned about our elections. 

More concerning are official attacks. Election interference is Trump's m.o. He was (rightly) prosecuted for it in New York City. 

Trump then corruptly interfered in an ongoing prosecution of Mayor Eric Adams. Started a criminal investigation, against traditional policy, of another candidate (Andrew Cuomo). Now, he is targeting another Democratic candidate. Consistency.  

President Donald Trump’s Homeland Security Advisory Council — a group that includes Rudy Giuliani, cop-turned-actor Bo Dietl and the founder of Bikers for Trump — held its first meeting on Wednesday to discuss the top threats facing the nation.

Trump has flagged him as dangerous and potentially a criminal. He has left open the possibility that Mamdani's naturalized citizenship can be revoked. He is accusing the leading candidate of a major city of being illegitimate.

The Homeland Security Advisory Council is not typically so heavy on politics. It was created in 2003 in the wake of the Sept. 11 attacks and, as stated in the Federal Register, is meant to provide “nonpartisan and organizationally independent strategic advice to the Secretary of Homeland Security on critical matters related to Homeland Security.” 

The article, however, shows how a recent meeting was quite political. The discussion included endorsements (Sliwa) and semi-endorsements (Adams), and attacks on Cuomo and Mamdani. 

Giuliani (disbarred and found liable for defamation and still part of a pending prosecution in Georgia) being part of anything in this context is outrageous. But so it goes.

I apologize for including this photo without a trigger warning, but it does underline where we are today. New York City residents, especially, need to be on guard that our right to govern ourselves will be challenged by a constitutionally unfit convicted felon. 

NYC Democratic Primary Final

The votes are counted, and the next step in ranked choice voting took place. We have a candidate for my city council district. Mamdani won 56% of the vote and is a promising sign of the future for Democrats. Yes, some old timers worry about this upstart. Don't focus on that. People love to be all "Democrats in Disarray."