SCOTUS Watch

New Term Arriving

The Roberts Court is part of the problem. Trump 1.0 made it worse. A new term begins on Monday. 

It will look normal, though we should not forget how corrupt (Thomas and Alito's ethical problems have not disappeared) and horrible they have been. Reform (including court expansion) should be, must be, part of the plans of a new beginning when it arrives. 

They will hand down the usual 9:30 Monday orders and then start a new set of oral arguments are about 10 A.M.  Don't pretend all is well. 

Chief Justice, sounding reasonable, will announce the first oral argument. It will be a law school hypothetical affair. 

Robert Court Is A Problem 

The horrible conversion therapy case, which is fake as a three-dollar bill (or a praying coach), comes on Tuesday. A tainted Court is predicted to provide one more harmful decision against trans people. 

These cases suggest that tweaking things is not enough, even if people like Steven Vladeck will provide some well-analyzed ideas in that general direction. He's writing a book on the matter. 

Personnel ultimately is the problem. I acknowledge the difficulties with court expansion, including the realistic chance of it occurring. It has to be discussed. It has to be put on the table as a legitimate option. 

The issue has been raised for a few years now. It still is only something a small minority (as compared to term limits) supports. It is far from a "Democratic" court reform yet. It is supported by a small subset. 

Somehow, if only to move to the Overton Window, it needs to obtain more support. Nice sounding term limit proposals, which won't alter the Court for years (maybe decades!), are not enough. 

Chief Justice Barrett, with people who might make us pine for the days of Thomas and Alito, is not what I want in our future.  I don't want some tweaks so the car thieves will drive our car a tad more carefully. 

Orders

Okay. I started this entry expecting it would be a brief entry about some simple orders. It basically would have the next paragraph. As you can see, it expanded. 

It handed down some housekeeping stuff this week, including taking on some more cases. One is a significant Second Amendment dispute.

We had another Friday afternoon shadow docket (the dissent speaks of the "emergency docket," but they are still acting in the shadows) involving hundreds of thousands of Venezuelans seeking temporary protected status. 

The liberals dissented from yet another unexplained, shadowy diktat. Jackson wrote a dissent. She spoke of her "lower court colleagues," who in reams of pages did the work that the Supreme Court has overturned. 

They have done so in reasoned and thoughtful written opinions—opinions that, in the normal course, we would get to parse, assess, and embrace or reject, while fully explaining our reasoning. 

She speaks of the stakes:

What should happen to 300,000 human beings while our colleagues on the Ninth Circuit, and then perhaps we, do the job of judging? 

She notes her dissent:

Because, respectfully, I cannot abide our repeated, gratuitous, and harmful interference with cases pending in the lower courts while lives hang in the balance, I dissent.

We are not one of her colleagues or a lower court judge, who was sometimes yelled at by the likes of Neil Gorsuch. We need not be "respectful" regarding these assholes. 

Who are these clowns? Remember this when Chief Justice Roberts politely opens the new term as he and his colleagues are empowering the Trump Administration. Who they are empowering?

We also read (in a piece by Charles Savage, showing there are reasons to check out NYT materials) this:

U.S. Military Attacked Boat Off Venezuela, Killing Four Men, Hegseth Says

Savage bluntly notes that there is a clear belief among people with the expertise to know that these attacks are illegal. Trump v. U.S. blocked justice against the commander-in-chief. 

Everyone else, however, remains liable for what very well might be multiple acts of murder.  

This week, Mr. Hegseth forced top U.S. military officers from around the world to travel to watch him and Mr. Trump give speeches, and the president suggested using troops in American cities as “training grounds” for future wars.

Kavanaugh Conspirator 

Meanwhile, the person who planned (but at the last minute decided not to do so) to kill Justice Kavanaugh was sentenced. The article (correctly) cites the range of political violence present in this country, not merely the "left-wing" sort (except for victims), which some of the usual suspects cite. 

This includes, again, as noted in the article, an uptick of threats to judges. One tactic is to send pizzas in the name of the murdered son of a judge. 

Trump's attacks on judges, personal attacks far beyond simple disagreement, do not help this situation. Trump and his supporters incite violence. Judges are "rogue," or "deranged," or "tyrants." The link shows people like Attorney General Pam Bondi joining in. 

I strongly criticize the Supreme Court. I'm a nobody. I'm not the leader of the executive branch or the federal justice system. I don't have the platform or a segment of supporters that contains a dangerous element. I would be sometimes more wary if I did. 

I don't use the level of epithets that top Trump people use, though I might wish to do so. Unlike one member of Congress, I don't use wanted posters. 

“Violence is never a means to a political end in a democratic society,” said Judge Boardman, before delivering the sentence. “We cannot and will not tolerate it.”

Yes. The wrongful use of violence, from whatever source, is a poison in a democratic society. 

What To Do

We DO need to openly address what is happening, including bluntly calling out wrongdoing and illegal activity. We need to continue to resist, including using lower courts to delay, and obtain whatever wins (there will be some) possible on the Supreme Court level.

We need to support basic republican principles, including in the face of wrongful court decisions. We need to discuss possible reforms. Judicial nominations provide one avenue to address the issues. 

My skill set includes writing about things. Yes, there are other things I can do. But those who report and discuss our situation have a place in the campaign. Tom Paine wasn't out there fighting on the frontlines with a gun. Writing is part of resistance campaigns.

I appreciate Chris Geidner and all the others who report on the courts. I have been interested in the courts since I was a teenager. I still am. 

A new term is akin to a new baseball season for me in some ways. These days, it does sometimes seem that I'm a White Sox fan. Oh well. So is the pope. 

A snapshot of religious liberty in the face of the current illiberal nation we live in

The famous flag salute case was written by Justice Robert Jackson, who later wrote an influential concurrence involving presidential power. 

The author of a book discussing this concurrence referenced the lower court opinions in the original flag salute case. They can be found online. The Supreme Court opinions in Minersville School District v. Gobitis are also worthwhile. 

The caption shows that the school district lost below. Both lower court opinions held that religious liberty won out. There was not a strong enough threat to the public welfare to require schoolchildren to pledge allegiance. The opinions protected some degree of religious action along with belief.

Justice Frankfurter's majority opinion voiced the importance of teaching patriotism and how the flag salute helped to unite us. The Supreme Court soon reversed itself. 

Three justices foreshadowed the result by admitting they made a mistake. The school district lost again below in West Virginia v. Barnette, the lower court somewhat dubiously predicting (if correctly) the Supreme Court would reverse itself.  Two new justices helped lead to a final 6-3 vote.

Frankfurter began with a strong statement on religious liberty. He later was a strong believer in the separation of church and state, including dissenting in a case involving funding bus fares to religious schools. Note the broad language of what is at stake:

Certainly, the affirmative pursuit of one's convictions about the ultimate mystery of the universe and man's relation to it is placed beyond the reach of law. Government may not interfere with organized or individual expression of belief or disbelief. 

Propagation of belief -- or even of disbelief -- in the supernatural is protected, whether in church or chapel, mosque or synagogue, tabernacle or meetinghouse. 

Likewise, the Constitution assures generous immunity to the individual from imposition of penalties for offending, in the course of his own religious activities, the religious views of others, be they a minority or those who are dominant in government.

[Paragraph breaks added.]

One justice dissented, if the person who was soon to be the new Chief Justice. His dissent provided some of the themes found in the ultimate Barnette case. Note, by the way, that both captions mispelled the families' names. 

Without recourse to such compulsion, the state is free to compel attendance at school and require teaching by instruction and study of all in our history and in the structure and organization of our government, including the guaranties of civil liberty which tend to inspire patriotism and love of country. I cannot say that government here is deprived of any interest or function which it is entitled to maintain at the expense of the protection of civil liberties by requiring it to resort to the alternatives which do not coerce an affirmation of belief.

The importance of education to teach and instill principles of "civil liberty" led people throughout our history to support public education. Education is a means. Knowledge and republican values, along with such things as learning how to live with each other with empathy and respect, are ends.  

These flag salute cases were decided during World War II. I'm reading a book about the final days of the European war, after Hitler and Eva Braun committed suicide. Those days provide some perspective on our own reality. 

We are not doing too well. One analysis provides evidence that we are an "illiberal democracy." Another states the state of the republic is "grim." It (rather convincingly) argues that if the forces of liberty can regain power, we should not try to simply fix our broken constitutional system. 

Maybe this buries the lede in a post that is mainly about a historical event of interest. Perhaps not. The cases involved school children being persecuted for practicing their religion. 

After the first opinion, children and adults were physically attacked. It was a dark time, in the middle of a world war. The Supreme Court responded, on Flag Day, with a paean to constitutional liberty. 

The current Administration is an illegitimate criminal conspiracy. It is fundamental to speak the truth. 

Our ancestors spoke of a tyrant in 1776. I am not exaggerating by saying that in various respects, George III was a piker next to the Trump Administration. 

I can toss in the Supreme Court, including stripping abortion rights. How dare they. The protections of the rights of some schoolchildren, with beliefs many of us oppose (even when they don't bother us by ringing our bells -- do they still do that? They did it when I was a child), are a type of fixed star to honor and remember while we fight the best we can.

I don't know what the future will bring. The big and necessary changes seem impossible on some level. Do they not always until they do occur? What did people think in 1775 or 1941? Or the early 1950s regarding racial equality?

History provides perspective, as we continue to live it. History is my jam. I studied it. I write about it. I find it interesting. I think it can teach some lessons. 

It's sometimes uncomfortable being a part of it.

Trump Update

I discuss the stupid, embarrassing, and vile speech of the Secretary of Defense (Trump, too) to a bunch of generals.

The Supreme Court allowed Federal Reserve Governor Lisa Cook to keep her job for now and scheduled arguments in January to weigh President Trump’s bid to fire her.

Florida Executes Victor Tony Jones

Jones was sentenced to death for murdering his employers, 66-year-old Matilda Nestor and 67-year-old Jacob Nestor, later admitting he did it because they owed him money. Jacob shot Jones before he died. The police found Jones wounded at the scene. 

This took place thirty-five years ago. Justice Breyer (joined by Ginsburg, also citing earlier dissents by Stevens), whom I repeatedly cite, argued:

These lengthy delays create two special constitutional difficulties. First, a lengthy delay in and of itself is especially cruel because it subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement. Second, lengthy delay undermines the death penalty’s penological rationale. [cleaned up]

His lawyers unsuccessfully raised various claims, including alleged intellectual disability. Mitigation evidence was cited in the final appeal (see below). 

They also attempted to use the abuse Jones suffered as a child at a notorious state reform school. At least 34 people who went to the school later were sentenced to death. Jones received a fiscal settlement earlier this year. The recent settlement arguably was new evidence (often these claims are procedurally barred as coming too late), but only one judge accepted that. 

My bottom line is that a long prison sentence was more appropriate. And, even if not, they waited too long. Yes, I am an "abolitionist," but even before that, only a tiny subset of "worst of the worst" situations should warrant an execution. The numbers from that study, however, are also rather glaring. 

The Supreme Court, mid-afternoon (a bit late), rejected a final appeal without comment. One claim was a technical procedural matter. The other somewhat emotionally asked:

Has the Florida Supreme Court repeatedly failed to take into account the diverse frailties of human kind in capital sentencing by consistently denigrating the force of proffered mitigating evidence. 

Maybe so, but it's academic now. 

There are eight executions, in seven states, scheduled in October. Five in four days. The last person has a suitable name for this whole process: "Grim."

They Had A Shot at the Playoffs Until the Very End

 

If the buck stops with the manager, he should be fired. Something significant needs to be done. Not just firing a few coaches.

Mayor Eric Adams Suspends Campaign

He recieved kudos from Mr. "Mamdani Has to Prove Himself" Jeffries (fu). People now want Curtis Sliwa (R) to drop out so Republicans can vote for Andrew Cuomo. Ha ha ha. (Ha ha.) 

MLB Season Finishes

The final MLB weekend has drama, including the Mets (months of bad play, leading to much scorn) doing their thing. Bad game, fantastic game, final game (their playoff spot will turn on Game 162). I blame mediocre competition. The Mets should be done by now. 

Natural Rights and All That

I spoke about "natural" or "God-given" rights. 

The references made sure to note that the terms were used by others. They were "traditional" terms or some such thing. They could be expressed in other ways, including as "fundamental rights." 

Each time, someone felt it necessary to firmly deny such a thing exists. They did not use the dismissive reference to a fake man in the sky or some such. The tone was there. It was also tiresome.

Many people do believe that we are owed rights from birth because nature or nature's god gave it to us. Nonetheless, the terms hold up if we acknowledge (as I provided as an assumption) rights are things we create. The question is how do we create them?

Certain rights are tied to our needs as humans. There are disagreements over exactly what these entail. Certain basic things (rape is bad) generally are agreed upon though even there a few disagree. 

Yes, everything is not truly "self-evident." The Declaration of Independence, however, speak of how "we" hold these truths to be self-evident. "We" are specific society with specific experiences.

We as a society have determined that certain things should be protected because we are humans. Sometimes, such as birthright citizenship, it is because we are born on U.S. soil. The U.N. crafted human rights that should be honored by everyone. 

"Natural" rights can be those rights we create based on our natural needs and desires. Their existence need not only be a matter of inherent reality in nature itself. They are rights we deem necessary above and beyond established law. Established law can uphold slavery.

These rights in that sense are from nature and/or nature's god. God need not be the biblical god that some atheists find it necessary to scorn. God can be a metaphor. We speak in metaphors. Words are symbols.

Philosophers spoke of "natural rights" in a variety of ways. The "state of nature" is a philosophical construct. We never were truly in a state of nature. Our prehistorical ancestors lived in a group. 

Hobbes noted life in a state of nature was not a pleasant experience. The Declaration of Independence argued we form governments to protect our rights. We surrender some of our metaphorical natural rights in return for the security. Liberty is not license.

Next up, judicial review wasn't just created by Marbury v. Madison, and it's fine. The rub is how to do it, including how much of a judicial veto is okay.

(Not really. But that is another thing that pops up now and again, with feeling, especially after the Roberts Court does something stupid.)