SCOTUS v. Trump: Tariffs

Congress should have handled this. 

But, since they are led by chickenshits, a 6-3 Supreme Court opinion blocked Trump's patently illegal (and financially stupid) usage of tariffs.

People wondered why they were taking so long. The 170 pages of opinions help explain why. 

Roberts handled the majority and did so in twenty pages. Kavanaugh (for Thomas and Alito) wrote a dissent three times as long. 

Gorsuch wrote a "combative" (to cite one comment), quotable concurrence twice as long.

Gorsuch, essentially thinks virtually everyone else is wrong, hypocritical, or both. He, virtually alone, is pure.

Right you are, Law Dork. Gorsuch is a prick and remains one even if he sometimes is on the right side.  He took over for Scalia and has improved his writing. 

Still a prick. People are loving some of his concurrence. Kagan and Barrett show that some of it is hot air. Dude goes too far. Keep that in mind. 

Both Barrett and Kagan, in different ways, basically told him to stop mansplaining. Kagan, for the liberals, didn't use the "so-called major questions doctrine." 

Kavanaugh and Thomas (adding some other originalist invention that many originalists aren't aware of) found a way to avoid it. Some are surprised at Kavanaugh's vote, but other than Alito and Thomas, he has been the most Trump-friendly. He did go the extra mile here. Give that man a beer. 

Jackson, arguing that it is what many legislators use more than bare citation of text, appealed to legislative history. She will be fighting the young Trump appointees for years to come. You go, girl! 

When Congress tells us why it has included certain language in a statute, the limited role of the courts in our democratic system of government—as interpreters, not lawmakers—demands that we give effect to the will of the people.

Barrett's opinion (a few pages, since she's not a blowhard) specifically answered Gorsuch, tossing (as required) a couple of citations of her former boss (Scalia). She noted:

Textualists—like all those who use language to communicate—do not interpret words in a vacuum. Instead, we use context, including background legal conventions, common sense, and constitutional structure, to ascertain a text's most natural meaning. (cleaned up)

Which is fine. Just to be clear, those terms are rather flexible. Again, that is fine, since any interpretative method will be, especially in hard cases. 

It is just that when Scalia or Gorsuch claims their method is special while the other side is lawless or something, they are full of themselves. 

I wrote something about originalism and Richard Hasen's book (not new) about Scalia here. More here ("Joe from the Bronx"). 

He has a chapter about "word games," arguing that textualism sometimes is just that. Like Jackson, Hasen also cites others who have found that Congress expects its laws to be handled differently. 

The majority opinion argues that there is no "foreign policy exception" to the major questions doctrine, especially when it involves taxation, a basic congressional power. Reminds me of the Steel Seizure Cases and the Supreme Court's citation of domestic powers. 

Roberts left open the possibility that Trump has the power to apply tariffs using some other legislative authority. Such authority has various limitations. It won't let him do his unhinged, power-hungry routine against various nations. Well, as badly. 

The law is crystal clear; conservatives are wary about tariffs, and it is a way for the Supreme Court to show they are not a potted plant. 

TPM is correct that the Supreme Court took too long. This has been going on for around a year. The tariffs are lawless. They caused lots of problems. 

Let's not exaggerate. The Supreme Court should have restrained Trump much more. And, the result is messy, since it does not handle the relief for taking money illegally. More litigation will follow. 

But you take the wins when they come. Trump reportedly was cursing when he found out about the opinion. He later said at a press conference:

Trump praises Alito, Kavanaugh and Thomas for dissenting on the tariffs ruling before, calling the other justices "a frankly disgrace to our nation" who are "very unpatriotic and disloyal to our constitution" and are "just being fools and lapdogs for the RINOs and the radical left Democrats."

Justin Baragona on BlueSky also flagged that he still welcomes three of the justices to his speech to Congress, while others are "barely" invited. Barrett and Gorsuch are embarrassments to their families. 

Yeah. I'm still with the House Minority Leader.

"Fuck Donald Trump and his vile, racist, and malignant behavior

“This guy is an unhinged bottom feeder,” Jeffries added. “Every Republican sycophant who continues to stand by their cult leader should be run out of office.”

Let's end where we began. Congress could and should have handled this. They still can. 

A Democratic Congress would have had a better shot.

ETA: The law here should not cloud the policy. 

The very reason this lawsuit could be brought is that it brings financial harm to the challengers.

My reference to Congress touches upon this. Democrats are already highlighting the economic harm and demanding refunds for ill-gotten funds. 

Trump promoted tariffs as a fundamental aspect of his economic policy in the 2024 elections, to much scorn from reasonable people. Reason, however, did not win out. Many still realize the policy was stupid and (contra to his lies) mostly paid by Americans. 

Other Stuff

They also changed the rules to help flag financial conflicts. The public information office posted an explanation (sometimes just notify the press). 

It would be even better if Roberts and Alito (well, he might be gone soon) sold their stocks. Also, be nice if all of them, not just Kagan and Jackson, explained why they recuse from cases. 

There was also a housekeeping order. More orders on Monday. Two opinion days next week. They are back hearing oral arguments. So busy, busy. 

They will also have (in March) an event in honor of Sandra Day O’Connor. 

January 6th: Five Years Later

 My comments.

Jewish Concern for Gaza

Trump said on Monday that children in Gaza “look very hungry” and that “we have to get the kids fed,” indicating disagreement with Israeli officials who have denied that anyone is starving there, as he opened a day of talks in Scotland with Britain’s prime minister. Mr. Trump also indicated frustration with President Vladimir V. Putin and said he had decided to shorten a 50-day deadline he had given Russia on July 14 to end the war in Ukraine. He said that the new deadline would be 10 or 12 days from Monday.

Trump sounds like a pathetic loser, but yes, they do look very hungry.* They are hungry. 

A separate article discusses the minority of Israelis who seem to actually care.

Despite the desperate humanitarian crisis, a survey conducted in May by the Institute for National Security Studies at Tel Aviv University found that 64.5 percent of the Israeli public was not at all, or not very, concerned about the humanitarian situation in Gaza.

That's depressingly tragic. The fact that it is far from surprising underlines why people correctly despise Hamas. They attacked on 10/7 with the clear knowledge of their enemy. The response is unsurprising. The only thing reasonably unexpected (perhaps) is the scope.

About 1,200 people, mostly civilians, were killed by Palestinian assailants during the October attack, making it the deadliest day in Israel’s history, and about 250 others were taken hostage. Many Israelis held Hamas solely responsible for the subsequent suffering in Gaza and said they felt little sympathy for civilians there.

About 60,000 Palestinians have since been killed in the war, according to Gaza health officials, whose tally does not distinguish between combatants and civilians, but includes more than 10,000 children. The war has displaced most of the two million residents of Gaza several times and brought the territory to the brink of famine. More than 80 children have died from starvation and malnutrition, according to the Gaza health ministry.

We must, as moral humans, not just skip over these details. The "deadliest day" resulted in a backlash in which FIFTY times the number of people have died on "the other side." 

If one-tenth of that number died, it would come off as rather disproportional (a principle in just war). The numbers, even before they became as obscene, caused concern among Jews as well as non-Jews. The article notes:

Some prominent Israelis have also raised alarms. Ehud Olmert, a former prime minister, decried what he called the “cruel and criminal killing of civilians” and the starvation of Gaza as a government policy. Moshe Yaalon, a former military chief and defense minister, has warned for months of ethnic cleansing. Yair Golan, a former deputy chief of the military and leader of the Democrats, a left-leaning opposition party, caused a furor when he said the government was killing babies “as a hobby.”

This whole thing comes off as a Greek tragedy, with far from equal harm being suffered on each side. Trump's son-in-law apparently did not solve the crisis in the Middle East. Now, his father (the ambassador to France) is trolling about it.  

We are left with the words of Jeremiah:

A voice was heard in Ramah, lamentation and bitter weeping; Rachel, weeping for her children, refused to be comforted for her children, because they were no more.

==

* Trolls cite the fate of the Palestinians as a reason why Harris lost. Biden > Trump, including in this area, no matter how much you want to argue he didn't do enough on this issue. 

A different article discusses how "Donald Trump’s meetings at his Scottish golf course provide the latest example of how he uses his presidential power in ways that help his family businesses." 

Another way to frame that is as a form of corruption that violates the text and spirit of the emoluments clauses of the Constitution. 

Order Watch

SCOTUS granted a few more cases in some interesting if not particularly hot button areas.

Alito, Kavanaugh, and Jackson didn't take part in two cases. Only Jackson (in a case Kavanaugh staid mute on) explained (previous judicial service). 

Jackson (with Sotomayor) wrote a dissent to a cert denial involving when a racial discrimination claim was still ripe. 

We will have one or more opinions on Thursday. 

Meanwhile, Emil Bove is so bad that Ed "Zillow" Whelan is concerned. Also, originalism taken seriously regarding 14A, sec. 3. 

Second Amendment

Thomas (with a written dissent), Alito, and Gorsuch would have taken a case where a Second Amendment claim involving AR-15s was denied (as it was in another circuit). Kavanaugh was sympathetic but wanted the issue to "percolate" more, noting multiple other pending cases.

The cynic might determine they didn't have a fifth vote and that is why Kavanaugh is waiting. Some might be "infuriated" at somebody (that guy is usually only being annoyed at Roberts and Barrett).

Kavanaugh cites the Heller "common use" rule and how many people now have the weapon. I question if the fact some weapon is own by a lot of people (at least in raw numbers) alone should be the test. 

Some argue that is living constitutionalism. Somewhat unfair if a 18th Century rule is applied. Such a rule will apply current conditions. The Internet wasn't around either. Whatever "free speech" meant, you have to decide if the Internet matches its characteristics. Today, not in 1985.

The courts below argue that applying traditional rules (history and tradition) to a modern gun allows the laws involved. The test is flexible. Roberts has not shown much concern about the laws being around. 

It probably turns on Barrett. Kavanaugh suggests she will get a shot either next term (the cases being taken now are for next term) or the one after. We will see.  

"How Did So Many Elected Democrats Miss Biden’s Infirmity?"

The title is from a Michelle Goldberg op-ed headline.

Who missed his "infirmity"? The true question is whether he was so infirm that he was unable to govern. That STILL has not been made apparent to me. As she quotes from a new book about 'Biden's deterioration":

More significantly, from up close, the White House mostly didn’t seem that dysfunctional. Tapper and Thompson, it’s important to note, don’t report that Biden’s addled state led to poor judgment, at least aside from the catastrophic choice to run for re-election. Indeed, they wrote, Biden critics they spoke to “continued to the end to attest to his ability to make sound decisions, if on his own schedule.”

Okay? Like after the debate, we will now have many articles providing details of "his decline," which overall will tell us what we generally knew. He was old, somewhat fragile, and (more than some other politicians) seemed that way.

So, one article reports audio of his interview with special counsel Robert Hur included him "speaking slowly, often with long pauses, as he seeks to mentally assemble a sequence of events." Biden traditionally had a reputation for rambling, and his stutter resulted in other verbal quirks. 

The bottom line, however, is that his administration appeared to be running smoothly. It was particularly risky to "switch horses in midstream," and Biden already beat Trump. We did not "have our druthers." 

If the stakes were lower, maybe you would take the risk of running someone else, taking the big step of someone not running for reelection. Yes, someone younger, and we can point to the need to move on in Congress, too.  

It made sense for him to run again. Likewise, when did Nancy Pelosi step down? Not in 2021 but after the Democrats passed their program, and lost the 2022 elections.  

A case can be made that Biden should have said early on that he would not run again. This would have provided more time for a new candidate to emerge. 

Or, it would have given Kamala Harris more time to run. It also would not have led to concerns that the process was illegitimate or slipshod or that the Democrats were in disarray. All of that is reasonable to talk about. 

Nonetheless, it is quite understandable that people wanted to retain the status quo. A status quo where Biden "continued to make sound decisions" and the presidency was going on rather smoothly. 

The "infirmity" that is being "missed" there is unclear. His fragility was not a secret. OTOH, people generally argued he was doing the job. The op-ed suggests the book does not say otherwise. 

I do not plan to read the book (sorry) to determine how much Biden was "addled." The alternative in November was Donald Trump. The choice was obvious to sane people.

The ultimate problem, from what I can see, was that Democrats (including myself) were taking a risk. Biden had a lousy debate, and we saw how things went. 

We don't know what would have happened otherwise. For instance, Kamala Harris had a great debate. Trump looked horrible. Did it matter? If the papers wanted to do so, they could have lots of articles and op-eds about how the debate showed Trump was unfit. 

They did not. 

The op-ed makes a general comment about "gerontocracy" in Washington. After all, the Senate pro tempore is Chuck Grassley, who is over 90. That line is less easy to make in the House, even if some older Democrats won out in committee spots. The leadership slots moved on from Pelosi et. al. 

I don't think that was the reason people did not want to risk moving on from Joe Biden. He was a safe choice in 2020. Goldberg argues he had a good shot at beating Trump in 2016. Joe Biden himself has certain qualities people like.

We also have this talk about policy:

Had Biden been younger, Tapper and Thompson suggest, he might have been more forceful on the border. I suspect that his anachronistic view of Israel, dating back to the heyday of Labor Zionism, is partly responsible for his refusal to stand up to Benjamin Netanyahu. But on a day-to-day basis, the administration often looked, to those who shared its priorities, to be doing a decent job.

Seriously? Who the hell is "standing up" to Israel these days? Schumer criticized BN, yes, but anyone who criticizes Israel overall much at all is tarred as almost a traitor. The border bit is also a stretch, whatever it exactly means. 

Biden was very well "doing a decent job." In fact, he was doing a rather good job. I didn't want him to win the primary in 2020. I acknowledge he was the right person for the job at that time. He was still making sound decisions.

So, yes, I thought it made sense for him to run for reelection. I knew he was old. Duh. We as a nation failed in 2024. It is unclear to me that Biden not stepping down sooner was the reason that happened. 

Appearances matter in politics. Once the debate occurred, and there was a constant drumbeat that he was unfit (which I STILL am not sure was warranted), he had to go. He did go. As the authors acknowledge, his sound judgment remained. 

Cecile Richards

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.

We must keep on working on it.  

SCOTUS Watch & Related Issues

Surprising Win 

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.  

Oaths: Presidential, Vice Presidential, and Otherwise

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. 

Thank You

 

Trump/Vance Electoral Victory Confirmed (One Is Still Disqualified)

Trump aided and abetted the attack on the U.S. Capitol on January 6, 2021, which was an attempt to stop the peaceful transfer of power. 

After a violent attempted insurrection, the electoral votes were counted early the next morning. The 14th Amendment specifically addresses keeping such people out of federal and state office:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The Supreme Court, not even showing up to announce the unsigned opinion (5-4 on some points), blocked a state attempt to keep his name off the ballot in Trump v. Anderson. Later, they split by ideological lines regarding criminal immunity for such presidential acts. The case was well named: Trump v. U.S. 

As Rep. Jayapal noted:

I know that many Americans across the country are still processing how it is possible that a President, who resisted the peaceful transfer of power four years ago and is also the first ever convicted felon elected, could enter the Oval Office.

Since the days of John Adams in 1793, vice presidents have presided over official counts even if they were one of the candidates. Vice President Humphrey skipped it in 1969. Might be the best policy.  

There often were a small number -- not a majority of one party as with House Republicans in 2021 -- electoral vote challenges. 

There was a proud but bipartisan tradition of using Jan. 6 to make technical objections within the byzantine electoral college system. And I think all of that got washed away with the attempted political coup and the mass insurrectionary violence of January 6 the last time around,” said Rep. Jamie Raskin (D-Md.), who had made a symbolic objection along with other Democrats to Trump’s victory in 2017.

Such challenges were not "election denial" generally speaking. They might have been picayune or wrongminded in certain cases. I think there was a reasonable ground to challenge after the 2000 elections. But, it is quite different when it is done after the Capitol is attacked as in 2021. 

A majority of Republican House members (under 10 senators) furthered the lies that motivated the violence. That was wrong. We now will bend the other way. For instance, it would have been appropriate for someone to go on record to argue Trump was not constitutionally qualified.  

They did not but a peaceful token resistance would not be what happened last time. As Jayapal reminds:

What we do today will be in stark contrast to what happened four years ago, when insurrectionists—fueled by sitting President Donald Trump — attacked the U.S. Capitol in the most violent attack since the War of 1812. That day, U.S. Capitol Police officers were killed, and hundreds — including over 140 law enforcement officers—were injured.  

We still are processing "how it is possible" that Trump will be in power in two weeks. We should not just move on and congratulate ourselves on a peaceful transfer of power (when one specific side wins). 

On a basic level, Trump won in the end, even if it took a few years.  Rick Hasen continues the effort -- oh so reasonably -- of helping him to resist even largely symbolic consequences. For instance, reference to Trump's sentence "hanging over him" is some reason to block even an unconditional discharge.  

(Hasen opposed the prosecution in the first place. I'm not going to shade his analysis generously here.) 

What was the New York trial judge supposed to do? If he sentenced Trump before the election, there was a reasonable concern that it would be deemed problematic. Maybe wrongly, but his fears were well founded. So, he waited.

The sentencing process then involved some more procedural stuff that would take time. The appellate courts, especially the Supreme Court, have not shown much inclination to speed things along. Months upon months of appeals would still have occurred. 

Same result: he runs out the clock. We failed as a nation in November 2024. It was a joint effort. We should at least remember what happened and still is happening. The voice of the people is not god.  

We saw that in 2016. The person who tried to violently overturn the election last time gets a peaceful transfer of power this time. Rightly so, putting aside the whole 14A, sec. 3 issue, though I think it was a bit too easy. Still, shades of ...

Two more weeks of sanity.

Election College Meets

The Electoral College meets today for their one day of "classes" without any formal athletics or anything. It's time to end class. Let's go with the popular vote. 

The "value" of the Electoral College is quite exaggerated, including a "national candidate" when the races tend to split the usual ways with the usual swing states deciding things. Some people appeal to "federalism" as if there aren't numerous other ways that is protected. Or are upset too many people live in certain states. Again, only certain states benefit. 

You can follow one electoral calendar here, including a day that this year falls on Christmas. More on this year's electors. Among the familiar names of New York electors are the governor, attorney general, the former head of the teacher's union, and so on.  

Two times this century the final count included people who did not win the popular vote. This time the winner is someone who barely did not receive a majority. If that makes you feel better. 

The third-party vote reportedly clearly goes Trump's way regarding second choices, including (no shock really) Jill Stein. So, you know, I'm not too relieved.  

Thirteen Republicans who participated in the 2020 fake electors plot, including some who are facing criminal charges, will cast real Electoral College votes Tuesday for President-elect Donald Trump, as electors in the states finalize his victory.

I saw this depressing (and disgusting; often paired emotions these days) news story. Realistically, perhaps, we should have expected even more than that. We should not forget who is coming into power, including that he should be disqualified for taking part in an insurrection (14A, sec. 3).  

[Trump v. Anderson blocked a state from keeping Trump off the ballot. It did not block electors from voting for someone else. Or, Congress determining he is not qualified. That's all academic but just saying.]  

The overall system in place is that states allot electors based on who wins the state (Congress/D.C.) with two states not using "winner takes all." Many states "pledge" electors while some (last I checked) do not. 

Those states can technically have "faithless electors" though electors tend to be party loyalists. And, there does not seem to be any faithless electors, which is how it should be. We live in a democracy. The people still more or less choose the president, ultimately, even with this silly anachronism in place.  

As the knight says in an Indiana Jones film, they chose unwisely. The new Congress, then fully Republican (again, unwisely), will make the final announcement in January with Vice President Harris presiding. Shades of 2000 without Bush v. Gore.

How depressing. Humphrey, Johnson's vice president, and loser to Nixon in 1968, skipped the job. Jefferson was vice president and oversaw the count of his own election. That wound up to be a tie, settled later.  

Odds and Ends

2024 Elections and Beyond

I provided some more election thoughts, including what the Democrats should do in the future. A major concern is not the Democrats. 

It is how non-Democrats (we can toss in media institutions) accept Trump as credible. Once you do that, it's like he wins half the battle. 

Democrats should not rest on nail-biters. Any long-term solution includes obtaining some additional support in red states and a more than trivial non-Democratic contingent. The added bit about an Obama speech, which partially talks about coalitions with those we disagree with, factors in.

Mets

The current big story is a battle to see who will sign Juan Soto, who is asking some ridiculous amount of money. I realize that is how it goes. Studs get the big bucks. Figure the Yankees need him to stay more. 

My thought has always been that I am fine with him staying with the Yankees. The team needs too many parts to focus too much on a gigantic long-term contract. Plus, philosophically, such contracts bother me. I grant for the billionaire owner it is "only money," but I hold to that. 

Meanwhile, they are filling in details ala 2023/4 with two reclamation project type starters, one who is a reliever that they plan to convert to a starter. The latest Yankee cast-off with Severino going to the As.  

Last season's results suggest we should trust the process. I'm betting they sign a reliable starter, find a good reliever or two, and the betting man (woman) would say Alonso stays. They signed a reliable outfielder who is a cheaper version of another they have. If Soto isn't signed, figure they find a more reasonable big bat, which would be my preference. 

Jets/Giants 

The NY/NJ teams have a combined 5-21 record. 

They both had a shot to at least go into overtime today in the final seconds. The Giants' comeback was stopped when a mid-range field goal was blocked. 

The Jets for the second time at the end of a half screwed up and set up a chance for Miami to get a long FG. The Dolphins won the toss and scored the touchdown.  The Jets' defense failed when it mattered.

The first time, Rodgers failed on a third down throw, leaving time on the clock for the FG. The big blemish the second time was a special team's failure. 

I'm at the point where I basically want both teams to lose. I am actively negative about the Jets and Rodgers. It would be nice, I guess if the Giants and their backup QB (Tommy Cutlets is not playing now) have a mercy win. They had a shot today. 

The postgame report for the Giants game was sympathetic. They don't have much talent on the field with their injuries. The defense played well. The backup (Drew Lock) started slow but kicked into gear late. He might be "the best shot to win," but he is not showing too much really for Tommy Cutlets fans. 

The Jets also had various good things happen but they keep on finding ways to lose. Okay. So, Rodgers played well overall (with key questionable plays) today. Finally. Who cares? 

He showed he is not the long-term answer. Put in the backup and show a message to the team that they are not just doing the same old, same old. They might even win a game or two still. The Jaguars, for instance, are not good. But, that's not the point. 

The team has the talent, I guess, that they might have won a handful of more games if they played better. The Giants are more of a mess. Someone flew a plane over the stadium with a message saying just that.  

Both lost a lot this season.  

SCOTUS Watch (and Trump Case)

Order Watch

The last scheduled November Supreme Court proceeding dropped with another mundane Order List. Since only liberals explain themselves, Gorsuch did not say why he did not take part in a case.

This case raises an important question that has divided the courts of appeals: whether the Takings Clause requires compensation when the government damages private property pursuant to its police power.

The one somewhat notable thing was a statement by Sotomayor (joined by Gorsuch) involving a Taking Clause case that they did not take. It has sympathetic facts about police damaging a woman's house during the pursuit of a dangerous fugitive. 

The parties granted the government acted legitimately. The question is who has to pay.  

The insurance company and government refused to pay for the damage. Insurance usually doesn't pay for damage in cases like this. No good reason why the government refused to voluntarily pay. The district court did note that the insurance company agreed to pay for the cost of cleaning up the body, the fugitive having killed himself. Small favors. 

Sotomayor noted the sympathetic facts and that not taking the case does not settle the issue. She flagged it as a worthwhile one for a future case.  

Trump Indictments Dismissed

A longstanding rule, which has wide support, holds that a sitting president cannot be indicted. I question if this is true in principle as an absolute matter. Nonetheless, it's largely an academic question.

Well, it was, until Trump was indicted and then elected president. Does the rule apply here too? Jack Smith, after checking with the OLC, decided it did. 

He asked for Trump's cases to be dismissed without prejudice. The D.C. judge and 11th Circuit (Judge Cannon's asinine ruling under appeal) granted the requests.  The case against Trump's valet and property manager continues so the Cannon ruling remains under appeal.  

That means, technically, they can be brought after he leaves office. The motion in the D.C. case flagged that the Office of Legal Counsel has suggested a court might freeze (equitably toll) any statute of limitations to ensure that the immunity won't be complete. 

I'm not holding my breath. There were a variety of people involved in this shitshow. 

I suggested the other day that it is unclear if prosecutorial delays (aka Merrick Garland) were the deciding factor. Impeachment and the insurrection provision in the 14th Amendment could and should have been applied. Voters also have agency.

Still, the Supreme Court has a special responsibility with its role in upholding the rule of law. Their delaying tactics and immunity ruling were egregious. The insurrection ruling also was misguided.  

Trump is dangerous to the safety of this country. His presidency is among other things an obstruction of justice. He is constitutionally unfit under 14A, sec. 3.

[Two separate things. I'm not saying the obstruction of justice itself is a 14A, sec. 3 matter.] 

It is what it is but I am not going to just grant it like the weather. And, yes, I'm pissed off about it.  

When Jim Crow was the law, some people did not grant the legitimacy of state-sponsored segregation. It was wrong and a correct application of the law was up to a better world. The same applies here.

Bad things happen. We cannot wish them away. We still get to say they are wrong. 

I will continue to do so.

Election Thoughts and Consequences

Not A Mandate (But So What?)

The talk is that the economy (Democrats passed major legislation to improve it, it improved, structural problems won't magically be erased, and Harris actually had policies to address it) and immigration (unauthorized immigration dropped and Trump blocked a major immigration bill backed by Democrats) were major drivers in the election of a thin Republican trifecta. Things to think about when we keep on getting lessons on how to win. 

The Republicans do not have some grand "mandate" akin to the Democrats in 2008 where Obama won by much larger margins, the Democrats had a filibuster-proof majority in the Senate and more than a handful majority in the House. And, Obama was alleged not to be a citizen, and losing one senator was put out there as a reason to toss out the Affordable Care Act.  

As Kevin Kruse notes in an earlier link, "mandate" has a rhetorical value, which is why Republicans are tossing it out there. Reasonably, it means a large win, though I guess a trifecta arguably works. 

Still. If a thin electoral victory is a "mandate," the word loses much force. OTOH, as Kruse also notes, power is the bottom line. So, perhaps, on some level, the Republicans are right. If not willing to be consistent. What else is new there? 

Staying Home 

Trump winning the popular vote, plurality-wise at the very least, was helped by a big drop-off from Biden to Harris, including in places like New York City. We can explain it by racism/sexism/whatever (policy/vibes also factor in), but the number of people not voting that voted for Biden could have won the election for Harris. This is an epic voter fail.

Some people rather not apportion blame here but like a manager only getting special kudos when the team does good, that doesn't work. "We the People" have the power in a republic. And, the responsibility.  

The numbers are not final but it looks like Trump gained votes from last time but in no way high enough numbers that it reached the Biden margin of victory. The assorted third-party candidates had the balance of power. Trump's coattails may have helped in the Pennsylvania Senate race, which was quite close. 

The House races were basically a wash. The Democrats lost two good men from red state Senate slots. They had various good state results, including in judicial elections. Democrats manage to win statewide offices in red states. They still need to find a way to win red-state U.S. Senate races.  

Anti-Trans Bigotry

Other than some dubious Cabinet picks and starting on a bad foot ethically and integrity-wise, the first thing that Republicans did with their mandate was transphobia. Erin Reed is a good source here. 

I covered this earlier but it warrants a repeat in this general election round-up. Republicans do not deserve political control for this very reason. 

They use it in horrible ways. The people do not care enough. It's a problem.   

SCOTUS Watch (and Other Legal News)

Order List

Another yawner of an Order List.  Alito didn't take part in a couple cases without explaining why. Only liberals deign to do that. We will have another Order List on Monday, after today's conference.

Various Actions 

On Friday, another order was announced, and the court denied a request for a stay. From the brief: 

The Warden seeks recall and stay of the Sixth Circuit’s mandate because the judgment of that court orders an imminent new trial in an attempted-murder case.

Separately, the Court took two cases to examine the contours of congressional power to delegate while adding a question to possibly avoid the question on procedural grounds. Thus, it handled two of the relists covered here. 

SCOTUS also scheduled some oral arguments for February and March 2025. Time marches on. 

DIG 

The Supreme Court announced that there might be one or more opinions today. There was one:

The writ of certiorari is dismissed as improvidently granted. 

That was the whole thing. In the past, at times, the Supreme Court (or specific justices) has explained why they thought a case was improvidently granted. The trend is not explained. The case:

Involves the 2015 Cambridge Analytica-Facebook data breach and considers whether Facebook’s disclosures to investors before the breach was public improperly downplayed the risks that data breaches posed to the company and its stock price.

The summary did not suggest that the case was apt to be tossed. We are left to guess why they in effect said, "Our bad, we shouldn't have taken this case."

The result is that the case can continue against Facebook/Meta. The lower court ruling remains the only precedent for the Ninth Circuit with the Supreme Court not settling the question for the nation. 

Lower Courts

The Senate had little to do in recent months other than confirm people. The Democrats still had numerous judges to confirm in the lame-duck session as we await the bad guys coming into power in January.  

Why leave any slots on the table for Trump to fill? President Biden did not even nominate nearly thirty district court judges, all in red states, leaving me to think the problem was blue slips. 

Blue slips allow home state senators to block district court nominees. This is not all on Biden since the blue slip policy is a Senate rule. Dick Durbin can keep on bragging about all the judges they confirmed but it still holds Trump had three justices. 

The link says thirteen judicial nominees are pending (Biden just nominated two), which is cutting it close -- they are due to close shop mid-December. Again, it is unclear why it should be. They had one real responsibility, and it wasn't confirming lower-level executive officials.  

Meanwhile, multiple appellate nominees are for some reason (you lost the Senate & the alternative is Trump picks, WTF is wrong with you?) opposed by enough people to be in trouble. 

Net result? A deal where four appellate slots go to Trump. Expletive deleted. Biden gets more district judges than Trump but not appellate judges and justices. Plus, the chance to provide a little light in conservative circuits is denied. 

A horrible result occurred. The Democrats decided to compromise in a key area of power they retained for a few more weeks. Rubs me the wrong way. 

ETA: Chris Geidner breaks down the numbers in a somewhat more positive fashion, granting he opposes the blue slips procedure that caused those district court vacancies. He says Chuck Grassley -- who btw is over 90! -- says he will keep blue slips for now. We shall see. Past experience makes me doubtful.  

What of the four appellate judges? He notes two can (will they?) revoke their plans for senior status. One was in a circuit where Democrats already have five appointees. And, the last one involved the horrible Muslim appointee being blocked. 

Do I feel better? Marginally. To toss it in, a well-known Fifth Circuit advocate cited his concern that the Democrats didn't fill all of those district slots.  

See also, Balls and Strikes, which takes a somewhat on the same page position though still says "bummer." I agree. Every appellate slot should be fought for.

Trump AG Pick 

Trump himself granted when asked that Matt Gaetz as attorney general was something of a longshot. And, sooner than expected, he's out. 

Still, I did not think he was going to be confirmed. I won't assume this is grand news. Take it as a victory. Trump can't do absolutely everything he says he wants. I guess that is useful to show now and then. 

But, be clear, it was not some grand victory. The ultimate choice very well deep down might have been the expected pick even inside the Trump camp. It also might help others be confirmed, the senators having the luxury now of having some limits.

Trump went with Pam Bondi, a more serious pick, who has actual experience (and is also from Florida). She is a Trump loyalist (took part in the first impeachment), checks off the MAGA points (including election denial), and has various skeletons but not on the level of being a sexual predator. 

Asking for an execution to be delayed for political reasons or not giving a couple their dog back or an apparent quid quo pro involving investigating Trump come off as not great, but you know, it's Trump's pick. 

She did a lot of news commentary, so she checks off Trump's need for people he sees on television. 

She also continues the trend of Trump stocking the Justice Department with loyalists, particularly former defense lawyers. Sessions and Barr were not great but were not former defense lawyers for their new boss.   

Bondi is basically the best you can hope for. How much she will politicize the office remains to be seen though she might be marginally better than some alternatives. She was Florida's attorney general, so has some official credibility.  

Senator Graham slavishly praised Trump for the pick, reminding people what a weasel he is. Lindsey Graham, that is, since Trump is best cited as some other sort of animal. Like Marco Rubio, she is a reasonable pick in context. Expect some Dem votes. 

Yes, you pick your battles. As a senator, I probably would vote against her. OTOH, I can understand a few Democrats deciding she meets a bare minimum following the principle presidents have the right to pick their own people within limits.  

Also, people, either way, can flag problems and ask questions during her confirmation hearing while using more effort and stronger language against others who are less fit and more dangerous overall.  

Of course, Matt Gaetz aside, dissenters have a limited amount of power. This underlines why the Democrats are so wrong in not using their power now, while in control, and leaving so many judges for Trump. 

SCOTUS Watch & Related Legal Developments

Trump News

More depressing news -- the idea that the Democrats would win the House of Representatives, which was assumed to be likely, turned out to be another pipe dream. The final numbers are not quite done but only a few seats switched hands. Net, the Republicans might win a few seats (220s).

Trump's appointments have generally been worse than expected though any "I'M SHOCKED" should be sneered at. We knew who he was. He was if anything more unhinged this time around. Any surprise at some point is playacting. It's getting old. 

His attorney general pick is Matt Gaetz. Yes, he is accused of being a sex offender. Trump has a civil judgment establishing he is one and he will have the duty to "faithfully execute the law." 

A major Supreme Court connection is that his solicitor general pick -- who will be in charge of cases argued to the Supreme Court -- argued Trump's immunity case. The agency for this is shared and is in large part the voters. The Supreme Court has its role.  

Robert Kennedy Jr., a conspiracy theorist, was chosen for Health and Human Services. Tulsi Gabbard, a friend of authoritarians, will be in charge of intelligence. Trump is a conspiracy theorist and a patsy for authoritarians. This is all not surprising.  

Ted Olson 

Ted Olson has died. He was the "Olson" in Morrison v. Olson, which upheld the independent counsel law. Many argue that Scalia's dissent turned out to be correct. I have my doubts about that constitutionally.

Olson supported various conservative and libertarian causes. He supported same-sex marriage and Dreamers. He opposed Donald Trump.  His third wife died on 9/11 (his birthday) on one of the planes. 

In these times, we should honor principled legal minds like Ted Olson.  RIP. 

The Courts 

Senator Dick Durbin, Chairman of the Senate Judiciary Committee, and others assure us that as many nominees as possible will be confirmed by the end of the Senate term. It looks like that would be mid-December. Only so much can be done.

Durbin and the Democrats who went along supported blue slips for district court judges. Blue slips require the support of "home state senators" for the judicial nominees. This would explain why so many red-state slots are vacant. This current list says THIRTY.

We can honor the judicial confirmations during the Biden years of de facto life tenure (good behavior technically) judges without ignoring that Trump had comparable numbers PLUS three justices.  

It is negligence to give him thirty more judicial nominees, especially since district court nominees were the easiest way to influence justice in red states. It adds to my "I'm so damn pissed off" list. 

Lower court judges have been a means over the last fifty years to have some balance while the Supreme Court has never had a majority of Democratically appointed justices. The record on the Supreme Court would have been much worse if moderate Republicans like Stevens or Souter were not involved.  

How can you leave so many people on the table? 

Supreme Court News 

There was a conference today which will bring forth orders on Monday. No more oral arguments are scheduled until December. There will probably be one or more opinions handed down next Friday.  

An execution was delayed (why not? he has been on death row since the 1980s) but there still is one scheduled for next week.  We shall see if he has any final appeals. I will write more next week. 

D.C. News 

A Republican trifecta will mean a greater chance that Congress will interfere with D.C. home rule. 

My druthers would be that D.C. would have a voting member of the House of Representatives, they would have more complete home rule, and only a supermajority (to address true federal interests) could overrule a local law. 

I am okay with D.C. being a state in part since it would (1) be an easy way to address these given constitutional doubts about D.C. having a vote in the House and (2) help unrepresented urban areas. 

Next up, territories should be able to vote for president, and we can figure out a way to have a clear referendum to settle Puerto Rico's desires as to statehood.  And, a pony for all who want one.  

More Than Democrats Have Agency: Election 2024 Edition

The media now is shifting to their preferred "only Democrats have agency" mode. Since that is covered, let's talk about some other stuff.

Eugene Volokh is a prime example of a sane-sounding guy who will push come to shove and lean the expected way. He votes Libertarian (the Purity Pony Party is a coalition this election) but "likes" some poorly argued Bret Stephens op-ed (I had a long comment in reply as JoeFromthe Bronx).

He follows up with another reference to the Democrats supposedly acting like French people by loudly saying things only they understand. I again responded since it's crap. Not only do Trump voters repeatedly support Democratic policies but Democrats repeatedly make appeals to all voters. 

The truth is shown by what amounts to split-ticket voting. Democrats have won statewide races in North Carolina, Kansas, and the supposed "Blue Wall" states that they could win on the top of the ticket this time. 

People in Trump states voted for abortion rights and other liberal policies. Florida voters supported abortion rights (if not quite the supermajority necessary). They supported expanding voting rights a few years ago. Then, the legislature overrode them. 

Chris Geidner's piece about trans rights has some good analysis of the election. I would note that it is likely too soon to completely judge what happened. 

But, "Democrats are wrong" takes when it is as much about mid-term concerns about Biden, the poisonous appeal of Trump, economic concerns that there were no magic answers for, and so on is bullshit.  

We have to accept that a chunk of the population has very problematic views, even if some conservative op-ed columnists don't want to hear it. Trump is a horror show. Democrats can't do Trump-lite without selling their soul. Marginal voters going the other way again after another four years without Trump is quite likely. 

There are a lot of people to blame. The media, courts, and Republican Party all in their own fashion helped Trump win. The media soft-soaped him. The comparison after Biden had a bad debate and a slew of bad press kept on coming is quite telling.  

Other than a slim (and very appreciated) old-guard Republican dissent (and nearly all were not in power), the Republican Party was again in the pocket of Trump. Since Trump won, this will not be deemed problematic by the media and others. They won so selling your soul is fine. It's not f-ing fine. 

I just had a court entry so won't repeat myself but the Supreme Court helped too. I'm sorry. The idea is just to blame Merrick Garland, right? 

My argument continues to be even to the degree Garland is part of the problem, he is not some superhero. He had a lot of help. And, he worked in an environment much unlike the Watergate Era. 

It was self-perpetuating. People who are mad the Democrats didn't do more have a case. But, it isn't just one person. Blaming one person is part of the problem. President Biden was in "just doing my job like the world wasn't on fire" mode in part because that is what the nation as a whole elected him to do. Chicken/egg. Do you want someone else? The type of "all-in" person who did not win for a reason.  

We can assign some blame to the Democrats. Others will do that a lot. Again, so much of it will be badly assigned. Senator Sanders said the Democrats sold out workers. The President who walked on a picket line? The number of union people who endorsed Harris underlines the truth of the matter.  

Also, late in the game, people will say Biden should have stepped down early. The counterfactual of doing that -- a rather ahistorical approach -- makes one wonder what magic unicorn could have beat Trump. Not just make the race closer.  

Democrats did not just run a left-friendly race. They supported a conservative border bill. Multiple policies, including things like money for home health aides under Medicare, had bipartisan reach. 

Clearly, a prime message -- Trump is simply unfit and dangerous -- did not get through. 

Trump is constitutionally unfit under the Fourteenth Amendment. His presidency will also inherently obstruct justice by preventing his own trials. 

I am so horrified that the voting public doesn't care. It is something of a messaging problem akin to non-racists running in the segregationist South. 

But, what was the alternative there? Treat him as not unfit and dangerous? How would that help you win? 

People can debate what Democrats have to do. The media thrives on chatting about that. All the bad stuff about Republicans will be ignored since they won. 

I am going to stick to my values while you all do it and not ignore that bad things often happen because bad forces unfortunately have more power.  

We can apportion blame, and it can help for next time, but that bottom line still can be true. Let's keep our perspective about things while self-flagellating ourselves. 

ETA: BTW, WTF with those polls? It was a "toss-up," not one-sided Trump's way.  

SCOTUS Watch: Now More Trumpy

Supreme Court Helps

The Supreme Court conservatives helped and will be helped by Trump. The liberals partially went along in Trump v. Anderson (insurrection). The immunity case (Trump v. U.S.) is all on the conservatives. 

Trump is not constitutionally qualified to be president. The Fourteenth Amendment addresses his engagement in insurrection. Nonetheless, as with his violation of emoluments rules, the courts found ways to ignore explicit text while making shit up on immunity. 

The emoluments cases were slow-walked and after his term was over became moot. This was a choice. When the Supreme Court wants to do so, it speeds things along or finds procedural workarounds. 

We can debate all that went into the American public's nauseating failure in electing Trump. The Supreme Court blocking a trial for his election crimes did not help. The patently unfit-to-preside Trump pick blocking the national security trial didn't help.  

The conservatives got their likely wish. Trump won. The chance for any judicial reform is gone. Alito and Thomas can retire at their leisure. 

The Trump Administration will advance more conservative positions satisfactory to the majority. There will be a certain mournful quality to one or more cases argued by the federal government before mid-January, particularly next month's trans cases.

How far Trump and his team will go remains to be seen. It won't be as fully horrible as some fear but the overturning of Roe v. Wade underlines it will be horrible in multiple ways. 

Lower Courts 

Trump, a convicted felon with multiple other pending indictments,* which now will go away, will have the ability to stock the courts with judges that will remain for decades. Republican control of the Senate will ease the way.  

President Biden and Senate Democrats did pretty well. There is still some left on the table, however, and the simple reality is that there was only one Supreme Court seat. Trump might have five.

Also, there will now be more judges to select with an expansion of the number of district judges. This adds to the results of the voting, many of whom did not act with this sort of thing in mind. But, it all is part of the whole, no matter if the people don't think or care.  

In 2016, the British political consulting firm Cambridge Analytica exploited the data of over 30 million Facebook users in connection with Donald Trump’s 2016 presidential campaign. After Facebook (now Meta) knew of the breach, but before Cambridge’s widespread use of the data was made public, Facebook issued a securities filing disclosing to investors the hypothetical risk that a security breach might cause harm to Facebook’s business and stock price. That disclosure did not reveal that, as Facebook was aware, a large breach of that sort already had occurred.

The Supreme Court chose an apt time -- the day after the election -- to hold an oral argument in this case. Lest you forget, and there is so much skullduggery that it is easy to lose track, Steve Bannon was a vice president of the company. 

Upcoming 

A Friday conference will lead to a Tuesday (Monday is a holiday) Order List. There are some more not very exciting oral arguments next week. 

Any celebratory (or girls' night of drinking the sorrows away) events are unofficial.  

“Do not despair,” Harris concluded. “This is not a time to throw up our hands. This is a time to roll up our sleeves.”

It is hard not to despair. I thought in 2016 that the death of Justice Scalia would bring balance to the Supreme Court. Garland was blocked and Trump was elected. Three tainted justices followed.  

Electing Trump after all that he did ... how can we not despair for our country? Chris Geidner citing a play about the AIDS epidemic (someone kept fighting even amidst the dying) does not make me feel much better.

Talk about "rolling up sleeves" after she congratulated a sexual predator for his victory (is this really necessary? "you killed my mom, but hey, you won the election ... congrats!") comes off as obscene on some level. And, President Biden is now helping a Putin puppet to take over the White House again. Charming.

But, as I said on Wednesday, what is the alternative? Endurance is a type of win. I am just tired thinking about how much people will have to struggle. Finding victories when you can, limiting damage, and fighting on. I thought of it as "triage" last time. Still do.  

We will see some of that in the courts too. 

===

* There is also the footnote regarding his New York conviction for which final sentencing was delayed until after the election. Jack Smith is prepping to unwind the federal cases. [Expletive deleted.]

Michael Dorf has a blog post on the NY case. Without agreeing with him across the board, it has some good points. Overall, I think a fine and suspended sentence with token requirements would do the trick. 

I think the prosecution while in office thing is largely academic. I'm open to some extreme case -- yes, including murder -- but you know, we will worry about that when it happens.