SCOTUS Watch

The Supreme Court is beginning its final end-of-term push. They will meet on Thursdays until the end of June. Opinions dropping will be likely.

More VRA News 

They had no Order List on Monday. No problem. They often make news outside of those often no-drama orders.

For instance, the aftermath of a major Voting Rights Act decision continued. It involved Alabama. Sotomayor dissented for the liberals. 

The conservatives didn't explain themselves. Bad decision, but not the end of the line. Meanwhile, there continues to be a lot of jockeying in multiple states.

The Virginia state supreme court ruling was not a good decision. The Hail Mary federal challenge was also not good. It was rejected without comment. 

Arguments 

We don't get video or even audio (for opinion announcements) of the proceedings. 

Amy Howe showed up since we cannot. She promoted, as a witness, greater transparency during the proceedings of the Biden Supreme Court Commission. Her summary of this term's arguments is interesting. 

Opinions 

The usual practice is for the justices to drop a limited number of opinions in late May and early June. Then, we will have an influx, with multiple decision days in one week to complete the job. Late term rush.

There are worse things to worry about. All the same, this is a bad job of pacing yourselves. 

Anyway, as expected, the two opinions (both unanimous with one concurrence) are non-controversial. The usual sentiments about how such opinions are still of some significance aside, neither is not a "high profile" case worthy of much attention. 

Abortion Pill News

The Fifth Circuit dropped a ridiculous opinion preventing Mifepristone from being prescribed by telemedicine and delivered by mail. The decision is bad both procedurally (standing) and on the merits.

Justice Alito, in charge of the Fifth Circuit, granted a temporary halt (administrative stay). He (selectively) had it expire on Monday afternoon and then extended it to Thursday afternoon. So, after two opinions few cared about dropped, bigger news was forthcoming.

(The link underlines how the change in Administration matters.) 

The Court, about a half hour late, granted a regular stay. Thomas and Alito dissented for different reasons. Alito noted the Court did not explain itself (which is unfortunate), which he did not find problematic about an hour later, when an execution was involved.

One notable thing about Alito's dissent is that he references how a change of policy in the Biden Administration helped protect the supply of abortion pills after Dobbs. State shield laws, including in New York, were also quite important.

Michael Dorf has more, including a reference to a good article on the Comstock Act. A previous discussion, which includes a reference to a Biden DOJ policy statement, is also worthwhile. 

Busby Execution 

A murder apparently motivated by robbery led one person to be sentenced to death, the other to prison. 

After over twenty years, too long (Breyer), Texas was ready to execute him. There was a claim of intellectual disability, which even the state witness granted.

The Supreme Court has held that intellectual disability at a certain point will make execution unconstitutional. It is also a mitigating factor. 

The seriousness of the claim is suggested by the fact that even the conservative-leaning Fifth Circuit at least temporarily held up the execution. The justices overturned the stay without comment.

Kagan dissented without comment. Jackson (with Sotomayor) briefly noted how gratuitous it all is. 

He was the 600th execution in Texas since 1982.

Upcoming

Order List on Monday, and another opinion day on Thursday. Who will buy Souter's home? 

Trump Supports Anti-Christian Bias

Religion Clause Blog reports: 

Yesterday, the President's Task Force to Eradicate anti-Christian Bias issued a report (full text) titled Eradicating Anti-Christian Bias within the Federal Government. The 197-page Report (with an additional 368 pages of Exhibits) focuses on policies of the Biden Administration.

The report has the usual Trump anti-Biden bullshit. Biden, whose expression of religious beliefs was much more honest than Trump's, supposedly is "anti-Christian." 

Biden regularly wore his religion on his sleeve and did so a lot more credibly than the current occupant. His Administration also respected equality, including the diversity of Christian beliefs. 

Trump's Administration selectively weaponizes Christian beliefs, promoting Christian nationalism, while disrespecting many Christians. This includes changing long in place policy regarding ICE enforcement at places of worship.

Where is this so-called anti-Christian bias? For instance, people who blocked clinics, motivated partially by religious beliefs, were not allowed merely to continue to do so. Laws protecting clinics were enforced. So, people could freely obtain health care, pursuant to their (often Christian) moral beliefs.

Vaccine mandates were also enforced. First, the average Christian doesn't find vaccines problematic. Second, requiring workers, including health care workers, to vaccinate or use alternative methods to protect others, is not "anti-Christian bias."  

There are rules in place respecting non-profits with tax breaks. Religions and religious organizations, whatever the religion, don't deserve a special exemption from the rules here. 

And so, it goes on and on. The Trump Administration promotes a selective form of Christian nationalism. The Baptist Joint Committee for Religious Liberty has flagged the problems of Christian Nationalism. But then, they aren't the "Christians" the Administration is concerned about.

Religious liberty is a fundamental aspect of freedom, not just in the promotion of some favored ones. It is too precious to let such special pleading go on without comment. See also, Justice Thomas and his confused and biased take on how "they" ignore the true meaning of the Declaration of Independence. 

"Christianity" is not just a conservative form of it. "The left" are alleged to be anti-Christian and anti-religious. This is a vicious slander. 

Chadwick Willacy Executed

On September 5, 1990, Willacy, then 24, was burglarizing Sather's Palm Bay home when she returned home unexpectedly. Willacy bludgeoned Sather, 56, bound her hands and feet with wire and duct tape, and brutally strangled her with a cord. He later disabled smoke detectors, doused her with gasoline, placed a fan at her feet, and set her on fire.

Florida executed another person who committed heinous crimes decades ago. The Supreme Court never held, even if a few justices flagged the problem, that such lag times were constitutionally problematic. 

(See, e.g., Breyer's dissenting opinion in Glossip v. Gross, including how the state interest decreases over time. The person did serve three decades in prison.) 

The last appeal also had a repetitive feel. His lawyers sought information regarding the lethal injection process. Sotomayor recently noted she was concerned about possible problems, especially since everything was not out in the open. 

A long prison sentence is appropriate in these cases. The capital punishment system is too flawed to be trusted. Executing a few people among a bunch of horrible people, including decades later, is not a good use of the public welfare. 

ETA: Trump Death Penalty Watch

The Garland Justice Department placed a moratorium on executions. A final report flagged problems with lethal injection usage. 

The Trump Justice Department [I use that label advisedly] has addressed a different sort of problem. Recently, there have been issues with obtaining execution drugs. Also, some botching of executions.

The TJD has decided to provide an open season for alternatives. They will leave open the usage of electrocution, nitrogen gas, and firing squads. 

Trump 1.0 waited until mid-2020 to start executing people. There are now only three people (mass murderers all) on federal death row. It would be remarkably quick for some newly applied death sentence to be carried out in less than four years.

The three people on death row were sentenced in 2015, 2017, and 2023. Realistically, it would be difficult to see more than two of them being executed by January 2029. I might be wrong. But five years would be rather fast. 

I'm strongly against the death penalty. I acknowledge my anguish if any of those three are executed would be rather low in comparison to many other things these clowns are doing. 

The Biden commutations have realistically limited the ultimate harm they can do on this front. They can try to get some death sentences. Even there, their efforts might be somewhat limited. 

One person in federal custody for other crimes was released to state custody, where he was executed. States might manage to execute someone else somehow, too, including among those Biden commuted. So, Trump has some room there.

Still, on the "execution" front, he has done a lot more damage, illegally killing people, including in Caribbean boat attacks. 

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. 

"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. 

National Day of Prayer

I briefly referenced the National Day of Prayer in my Conclave review post. This year it was on May 1st.

One Biden proclamation:

NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim May 4, 2023, as a National Day of Prayer. I call upon the citizens of our Nation to give thanks, in accordance with their own faith and conscience, for our many freedoms and blessings, and I invite all people of faith to join me in asking for God’s continued guidance, mercy, and protection.

I'm not gung-ho about the final statement about "asking for God's" guidance, but that's a reflection of the law itself. The 1952 law, amended in 1988 to make it the first Thursday of May, declares that the president:

"shall set aside and proclaim a suitable day each year, other than a Sunday, as a National Day of Prayer, on which the people of the United States may turn to God in prayer and meditation."

Note the mediation option. 

Okay. Let's see how Trump does it this time. 

We start with this:

From the earliest days of our Nation’s journey, America has been guided by the grace of Almighty God.

The proclamation is in the name of the president of the United States. It is not just a personal statement. It is an official statement carrying out congressional legislation. 

And, it begins with a religious statement not shared by millions of Americans. There is a summary of American history, including the Washington prayer at Valley Forge myth. The selective focus continues:

our greatest leaders have always recognized the necessity of faith, prayer, and devotion to God. As President Washington famously stated in his seminal Farewell Address, “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports.

Okay. So those who do not so recognize are not "great leaders"? Also, "religion and morality" can be expressed in multiple ways. Prayer is just one example.

As President, I proudly established Task Forces to eradicate religious bias by combating [sic] anti-Semitic, anti-Christian, and additional forms of anti-religious bias.

I appreciate that he is somewhat inclusive after specifically forming an anti-Christian bias task force. There is now a "religious liberty commission." Conservative religious liberty is selective and misguided. Nonetheless, the more inclusive language found in the second executive order is better than something that just supports one religious tradition.

I will never waver in safeguarding the right to religious liberty and protecting God in our public square.

The National Day of Prayer is now used to "protect God in our public square." People pray in a variety of ways, including some who pray to multiple gods. The second half of the statement disrespects the first. Finally, I think God (if God exists) doesn't need Trump's protection.  

I believe that God spared my life for a reason — to save our country and restore America to greatness.  It serves as a sacred reminder of our Creator’s infinite goodness, guidance, and grace.

YMMV.

This National Day of Prayer, we recognize that the true strength of the American spirit has always been found in churches, chapels, pews, parishes and synagogues, and the hearts and souls of our citizens of faith.  Today and every day, we bow our heads in prayer to thank God for His countless gifts and to ask for His divine protection. 

This is offensive. First, the language used does not cover multiple religions. For instance, there is no reference (shocker) to mosques. Again, people pray in different ways, not just bowing their heads to a single god. Also, the non-religious have "true strength of the American spirit" too. 

Trump's proclamation then quotes the law, which provides a more inclusive statement than his previous comment:

“on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals.”

Nonetheless, even here, "churches" are singled out. This is discriminatory and "establishes" a special favoritism of certain religions. There are "churches" (Christian) and other also rans like the original Gilligan's Island where Mary Ann and the professor were thrown in as "the rest."  

Finally:

I encourage all Americans to observe this day, reflecting on the blessings our Nation has received and the importance of prayer, with appropriate programs, ceremonies, and activities in their houses of worship, communities, and places of work, schools, and homes.

President Jefferson argued that asking him to "encourage" religious beliefs was a violation of the First and Tenth Amendments (pre-14th Amendment, states could establish religions). He was correct. 

A president can, on their own, encourage people to practice religion. I would suggest they do so in an inclusive way (finally, we hear of "houses of worship," not sectarian language). Good policy is a good practice even if it is not constitutionally necessary.  

Also, religion is a private matter, and having the president in general remarks -- outside of a limited forum expressing their beliefs -- favoring certain religious beliefs is problematic too. For instance, the gospels say Jesus cautions us to pray in private, not "at work" or in the "public square."  

I think we can do without public figures, via official proclamations, to provide religious instruction. Some presidents were much more believable than Trump in this effort. Overall, as noted by representatives of the Baptist Joint Committee, the government should not tell us when to pray.

Trans Day of Visibility

 

Each year on March 31, the world observes Transgender Day of Visibility (TDOV) to raise awareness about transgender people. It is a day to celebrate the lives and contributions of trans people, while also drawing attention to the disproportionate levels of poverty, discrimination, and violence the community faces compared to cisgender (non-transgender) people.

This is an annual celebration. One year it overlapped with Easter, leading to the usual suspects making things a conspiracy. President Biden respected the rights of trans people. For him, they existed:

As kids, they deserve what every child deserves:  the chance to learn in safe and supportive schools, to develop meaningful friendships, and to live openly and honestly.  As adults, they deserve the same rights enjoyed by every American, including equal access to health care, housing, and jobs and the chance to age with grace as senior citizens.  But today, too many transgender Americans are still denied those rights and freedoms.

Trump goes another way, including alleging that trans people are not "physically or mentally prepared to serve" in the military. He wants to be Orwellian about "biological truths," including allegedly to protect women's sports (how about men's sports?). 

I will let Karen tell you about the "protection racket" here and the true goals involved.  The attack on trans are vicious and often just plain gratuitous. 

Not surprisingly, trans issues are repeatedly referenced on a blog involving religious themed legal issues. Nonetheless, religion is often used as an excuse to channel hateful and ignorant non-religious views. Remember too that "Christian" is not the same as "conservative fundamental Christian." 

Trump and other Republicans want to erase trans people. Trans people are the core legitimate target for many these days. Parents are threatened if they want to provide their children medically accepted care. 

Trans people are blocked from bathrooms reflecting their gender identity, blocking people who otherwise "look the part" from basic human needs. Nicole Maines can tell you how absurd that can be. 

A few trans athletes (sometimes not even trans) are wrongly labeled grave threats to sports. Harmful conversion therapy is accepted licensed medical care. Not unlicensed therapy at a church. Care provided by personnel licensed by the government.  

Erin Reed is a good place to go to keep up with current trans legal issues. She provides some optimism about the future. There is some reason to be optimistic. The attacks of trans people often is a result from fear. Trans people are visible. They exist.

That scares some people. Holidays often celebrate things that exist each day. Parents should be honored daily. That's hard. So, we have a special day for mothers, fathers, and grandparents. We honor certain "history months." We honor saint days.

Today is a day to celebrate trans people. Farmer v. Brennan (1994) recognized the needs of trans prisoners. Trans history goes back to ancient times. 

Some trolls continue to ridicule when Justice Jackson had trouble defining "woman" during her confirmation hearing. Biologists have problems drawing lines. Sex and gender is complex. There are not just XX/XY chromosomes. There are more than two genders. 

It is not surprising that an administration who is so scared about DEI (which is again a fine concept) is not a big fan of diversity. Our nation should celebrate it. 

Trans people exist. Even if you are not a big fan -- and you have issues -- there is no reason to be so gratuitously cruel as so many people are. 

Today's a day to celebrate and honor trans people. We should respect their particular needs as we should respect the needs of each one of us. And we should oppose all the patent bullshit done to oppress them. 

Happy Trans Day of Visibility. 

Comment: "How Israel plans to escalate its war on Hamas in Gaza"

A kneejerk type found a forty or so second clip on Twitter to further his message. And, even then, had to expand it from a comment against Israeli attacks on Palestinians under their control to ANY use of force. 

(When foreign nations attacked Israel, the international law argument made was not applicable.)

My recent comments about Schumer included a reference to an interview that covers his new book on anti-semitism. I was happy to see, though it was not addressed in the interview, he criticized settlements in his recent big speech. They are a major barrier to any conceivable lasting peace.

It is quite true that they are not the only problem. Nonetheless, we cannot ignore how troublesome they are for multiple reasons. A Swiss Cheese West Bank makes a two-state solution especially unlikely. We are talking about a speck of land even without them. 

Also, settlements are a major cause of psychological unpleasantness. Palestinians feel like prisoners who have to undergo multiple checkpoints to move around. The spittle coming from the comments on the blog makes me wonder how they would feel if they had the empathy to see themselves in Palestinians' shoes.

A tragic part of all of this is that the resistance has some valid arguments but uses horrible tactics. Violence against civilians is going to lead to a lot of hatred. And, the math is horrible. One article:

But if the maximalist tactics are implemented, they would represent an escalation of a 17-month operation that the Gaza Health Ministry says has killed nearly 50,000 Palestinians, more than half of them women and children. The war also has killed more than 400 Israeli soldiers.

NPR:

On Oct. 7, 2023, Hamas led an attack from Gaza into Israel that killed almost 1,200 people and took 251 captive, according to Israeli government figures. Israel responded with a military campaign to destroy Hamas and free the hostages. Negotiations to end the war broke down last week.

At some point, there have to be some proportional response rules. One Lancet study summarized:

We estimated 64 260 deaths (95% CI 55 298–78 525) due to traumatic injury during the study period, suggesting the Palestinian MoH under-reported mortality by 41%. 

[More data at Wikipedia.]

Israel had broad support in the U.S. after being attacked. Justifably so and it underlines why Hamas has so much to answer for. They had to know what would happen. It was an ugly calculus. 

The WP article suggests the idea:

Israel has destroyed nearly all of Hamas’s 24 fighting battalions, it says, leaving a few thousand fighters in Gaza. But to fully eradicate the remnants, it would have to hold the territory — which some officers and analysts say carries high risks for Israel.

“If you look at the French in Algeria, [the U.S.] Operation Iraqi Freedom, the Americans in Afghanistan, the history of counterinsurgency attempts teach us that even the Israelis will fail,” said Sascha-Dominik Dov Bachmann, an expert on warfare at the University of Canberra. “It would undermine the moral and ethical basis of Israel.”

So, although Israel can succeed in a large fashion short time there is still a danger that long term they lose. The question is how badly. For instance, France's colonial effort in Algiers is not the same as Israel's situation. France had a country to fall back upon. Algiers was not as basic to its sense of itself.  

The article also reminds people that there is a dime's worth of difference between Biden and Trump.

Last year, the Biden administration refused to send a shipment of 2,000-pound bombs to Israel unless it allowed more humanitarian aid into Gaza and did more to prevent civilian casualties.

But Trump, who took office in January, has approved the sale of the heavy bombs. And officials have said that Israel consulted with the Trump administration before cutting off all aid to Gaza in March.

I try to largely keep out of debates over Israel and Palestine. I rather not "Talk about Israel." It will lead to people on each side having over-the-top positions, including tossing a lot of data in along the way.  

Overall, the whole thing is so tragic. And, whatever your position, one side -- especially women and children -- are suffering much more. 

Latest In Eric Adams/Trump Bribery Case

Yeah, we could see this one coming a mile away.

Yes, National Review person, "we" could. And, that is why so many of "we," including to be fair probably a few over your way, didn't want him back in power. The pushback is a bit surprising.

Manhattan’s U.S. attorney on Thursday resigned rather than obey an order from a top Justice Department official to drop the corruption case against New York City’s mayor, Eric Adams.

Then, when Justice Department officials transferred the case to the public integrity section in Washington, which oversees corruption prosecutions, the two men who led that unit also resigned, according to five people with knowledge of the matter.

Several hours later, three other lawyers in the unit also resigned, according to people familiar with the developments.

[A list of the resignations is found here.]

Mayor Adams worked to fulfill his "quid" for the promised "quo" by planning to help ICE. Meanwhile, Gov. Hochul is more open about removing him. 

It's time for other N.Y. powerbrokers to send a message that it would be fine with them if she did. I'm with TPM in thinking the situation has changed. He has to go. I didn't think so before. Things change. 

To remind people of the law:

The mayor may be removed from office by the governor upon charges and after service upon him of a copy of the charges and an opportunity to be heard in his defense. Pending the preparation and disposition of charges, the governor may suspend the mayor for a period not exceeding thirty days.

For now, it is appreciated that even loyal Republican types have started to think things have gone too far. 

This includes a bit about the Acting Deputy Attorney General -- following Trump's lead during the Mueller investigation -- being mad that the lawyers were taking notes. During a f-conspiracy? Come now!

Rachel Maddow's book on the investigation of Vice President Spiro Agnew was partially a celebration of the integrity of some members of the Nixon Justice Department. We are going to have to rely on some feeling of lines that must not be crossed by people we otherwise would not trust. 

Many argue Merrick Garland was the wrong choice for the Attorney General. He was chosen largely as a symbol of a return of integrity in the Justice Department, which the critics might now think is a tad more important than they did then. The independence President Biden promised is no more. 

For now, after the "Thursday Night" massacre, this little drama among all the others continues to be incomplete. A judge has to sign off on dropping the prosecution. Good luck with that now. Will this end up with a pardon? An endorsement of Eric Adams if he runs as a Republican? Something else?

Stay tuned!

President Biden Leaves Stage Left With A Few Final Moves

I provided some closing/opening thoughts about the change of the guard at the White House at my substack and won't repeat myself overall here.

Other than some words in honor of the passing of the previous head of Planned Parenthood, Cecile Richards, now former President Biden (to be consistent on labels) used his last hours to drop a few more pardons and commutations. 

He had earlier commuted around 2500 sentences involving non-violent drug offenses. A lot can be said about the need to expand the usage of the pardon power. Biden has still historically used it in comparison to others.  

[The Biden White House website is now down and replaced with the Trump White House website. You can find former presidents' pages archived and this one will be as well. So, no links yet.]  

For instance, Leonard Peltier will now serve the remainder of his sentence in home confinement. Peltier is a Native American activist convicted of murder of two FBI agents, who repeatedly has been the subject of political controversy. 

The commutation is justified thusly:

Tribal Nations, Nobel Peace laureates, former law enforcement officials (including the former U.S. Attorney whose office oversaw Mr. Peltier’s prosecution and appeal), dozens of lawmakers, and human rights organizations strongly support granting Mr. Peltier clemency, citing his advanced age, illnesses, his close ties to and leadership in the Native American community, and the substantial length of time he has already spent in prison.

More notably, Biden provided presumptive pardons to certain members of his family (not Jill or his daughter) and various others to guard against unjustified attacks. He argues that wrongdoing should not be inferred. 

Regarding the second set of people:

In certain cases, some have even been threatened with criminal prosecutions, including General Mark A. Milley, Dr. Anthony S. Fauci, and the members and staff of the Select Committee to Investigate the January 6th Attack on the United States Capitol. These public servants have served our nation with honor and distinction and do not deserve to be the targets of unjustified and politically motivated prosecutions.

You can read about a discussion of the constitutional usage of pardon power here. An early case (1915) is cited to show that a pardon "imputes guilt" but a later one (1927) argues pardons promote a public purpose. 

They are not just "acts of grace," that someone could simply reject. For instance, the pardon power could be used to promote public peace in cases of public disorder. Insurgents cannot hinder this effort by refusing the pardons.* 

Also, it is a bit absurd to say a pardon is always an imputation of guilt. Executive clemency is sometimes used because other means are not enough to address legal travesties. As an opinion that sometimes is wrongly cited to hold that there is no barrier to innocent people being executed stated:

Executive clemency has provided the "fail safe" in our criminal justice system. K. Moore, Pardons: Justice, Mercy, and the Public Interest 131 (1989). It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible. But history is replete with examples of wrongfully convicted persons who have been pardoned in the wake of after-discovered evidence establishing their innocence.

Biden's actions here are a red flag of what the upcoming days will bring. As he argues:

I believe in the rule of law, and I am optimistic that the strength of our legal institutions will ultimately prevail over politics. But these are exceptional circumstances, and I cannot in good conscience do nothing. Baseless and politically motivated investigations wreak havoc on the lives, safety, and financial security of targeted individuals and their families. Even when individuals have done nothing wrong—and in fact have done the right thing—and will ultimately be exonerated, the mere fact of being investigated or prosecuted can irreparably damage reputations and finances.

There has been some pushback on the value of these pardons but I think it is an understandable attempt to do what he could. The people involved can still be investigated, called to testify (now with less Fifth Amendment immunity), and various methods used to go after them. 

But, criminal prosecutions are a serious matter.  

Linda Kerber in Federalists in Dissent noted:

The dream of establishing in the new world a republic whose ideals would be classical, grounded in civic virtue, trusting in the integrity of the public and in the capacity of men of good will and decency, was not mere rhetoric. Republicanism was a word loaded with meaning, and the care of the survival of the republic of virtue, the fear that it would succumb to the corruption to which all acknowledged it was vulnerable, was real.

A thought that came to mind today. 

==

* One lawyer suggested to me that possibly a person could functionally reject a pardon if it is enforced by using it as a defense during a prosecution. 

I find this very questionable. A judge would have to accept the conviction. If they did so, they would effectively interfere with presidential pardon power. 

The pardon to me is self-executing and is a matter of law once the president acts unless it has strings (Biden could have required an admission of guilt!). Judges sometimes must on their own raise jurisdictional limits to their powers.

I do not know the specifics in all respects but in principle, something like this would apply here.  

Thank You

 

SCOTUS Watch: End of Biden Presidency Edition

Oral Arguments 

This week was largely intermediate as we tried to forget what was coming next time. For instance, a deputy Biden solicitor general argued a case on Wednesday, the last one for the Biden Justice Department. He took a moderate position. 

The case is of some importance for accessing online speech. My red flag was the low "one-third" threshold -- the law covered websites where most of the material was not whatever sexual material harmful to minors entails. A term that in practice will be overbroad.

The other cases were more eye-glazing over. I didn't listen to much of them but do not think we had bits like Alito talking about being carded when buying wine. What sort of wine do you like, Sam? 

Pam Bondi Confirmation Hearing 

Meanwhile, Pam Bondi's confirmation took place with the expected "highlights." She's a Trump hack but meets the low threshold of competence when compared to some of Trump's other picks. I would vote against her. If many Democrats vote for her, however, I would not be surprised.  

There is no special magical thing Democrats can do in these situations, even if some people are annoyed at so-called "business as usual" hearings. They do not control the Senate. They are flagging problems, including being suitably annoyed at her bullshit. 

These are Trump nominees and the most we can hope for is so degree of competence, especially in the also ran type Cabinet slots.  Pam Bondi is a troubling case given the ability of the Justice Department to abuse its power in particularly dangerous ways.  She can do that while not being Robert Kennedy-esque about it.  

Opinions

Monday's Order List suggests the ho-hum nature of the week overall, down to Alito and Barrett continuing the conservative justices' policy of not explaining why they do not take part in certain cases. Kavanaugh and Kagan had unanimous ho-hum opinions. 

There are still some little tidbits that caught my eye. Gorsuch concurred briefly in the first case to sanctimoniously show that justices do not make policy. I found this a bit curious since the issue involved a common law rule, which is a judge-made law that tends to balance policy in some fashion. It is not just some above-the-fray sort of affair. 

Kagan's opinion was longer in part to explain why the lower court was incorrect (at least in hindsight) to rely on something the Supreme Court previously said. It included a bit too blithely phrased dicta (a portion of an opinion not necessary for the judgment). 

As she notes, the Supreme Court gets to decide that. The lower court was not wrong to rely on it until the justices made things clearer. Anyway, don't take it too seriously! One of the cases covered was written by her old boss, Justice Marshall. It might have been her term as a clerk too. If so, logically she would know of it.

Kagan also has done a good job clearly expressing the law in these law school-type cases. For instance, a conservative-leaning law professor who regularly kneejerks ideologically praised her analysis. 

Biden Final Address

On the goals for the future front, President Biden in his final speech to the nation reaffirmed his support of court reform, which has bipartisan popular support: 

We need to enact an 18-year time limit, term limit, time and term for the strongest ethics -- and the strongest ethics reforms for our Supreme Court.

Likewise, without citing Trump, he again supported an amendment "to make clear that no president — no president — is immune from crimes that he or she commits while in office."

Some were annoyed that Biden didn't promote his goals expressed in the speech before now. He has spoken about the themes addressed in various respects. He had many accomplishments.

People do have some reason to critique him for going so slow on judicial reform. Nonetheless, to hit an old hobbyhorse, his presidential commission on the Supreme Court provided an opening that OTHERS also failed to seize. The public has shown their discontent on this issue. It has potential.  

Tom Goldstein

Tom Goldstein, a top U.S. Supreme Court attorney, and publisher of the SCOTUSblog news website, was indicted on Thursday in Maryland federal court for allegedly failing to report millions of dollars he won in poker matches and using his former law firm's accounts to pay his gambling debts.

Ouch. I have long found SCOTUSblog a very helpful resource, including his wife's (Amy Howe) reporting and commentary. Goldstein's own views sometimes leave something to be desired, including a suggestion that Trump's election should wipe away his guilt. 

His possible guilt should not erase the value of the blog and hopefully, it will not be negatively affected. 

BTW, some have suggested his infamous op-ed was really a way to get in Trump's good graces akin to Mayor Eric Adams (also indicted) going to the Florida White House and talking up Trump some. Either way, the op-ed was moronic.  

Tik-Tok Ban Upheld

The Supreme Court put a notice on its website on Thursday that opinion(s) would be released on Friday without them showing up on the bench. As expected, this was about the Tik-Tok ban. Which was upheld.

The unsigned opinion was narrowly written to address the legitimacy of safeguarding data from foreign adversities. Justice Sotomayor briefly noted the law clearly affected speech. Gorsuch had a sound longer statement in part appreciating (as do I) that they did not rely on classified material.  

President Biden has announced he will not enforce the ban (which kicks in a day before he leaves office and any enforcement would require investigation). So, the whole thing might not matter too much. 

Still, it is appreciated the opinion is carefully done, even if some might reasonably argue the law should be struck down. Finally, unlike multiple Trump cases, we see the Court can speed things along when it wants to do so. 

Upcoming

Roberts will have to work on the holiday -- Monday is Martin Luther King Jr.'s Birthday (observed) as well as the inauguration of you know who. Roberts swearing in the person he helped get the job is fitting.

The next scheduled order list and oral argument day is thus shifted to Tuesday. First, the Supreme Court announced Friday afternoon that it will hear five more cases. For now, we still have a constitutionally qualified president of the United States. 

One of the cases involves parental opt-outs for LGBTQ-friendly lessons. It is MAGA red-meat grant. Republicans in Congress are already targeting trans people. Trump will help. What will his SCOTUS do?

Biden Says We Have Another Amendment

Multiple members of Congress, including Sen. Gillibrand (NY), lobbied President Biden to announce that the Equal Rights Amendment was ratified. 

Somewhat surprisingly, he has. Various constitutional scholars and the American Bar Association agree with him. It isn't just an idiosyncratic statement. 

It is long past time to recognize the will of the American people. In keeping with my oath and duty to the Constitution and country, I affirm what I believe and what three-fourths of the states have ratified: the 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex. 

He, however, is not instructing the National Archivist to formally announce it is ratified. CNN (see link) reached out and she reaffirmed her statement from last month. It isn't ratified. It's in the hands of Congress and the courts. The president does not have a role in the amendment process. 

Biden's statement is advisory. It is also in my view wrong.  I have talked about this here and elsewhere multiple times. Let's take a summary view. 

Simply put, the original deadlines were appropriate to ensure that the proposal and ratification of amendments were timely. See, e.g., Coleman v. Miller. Congress has the power (but it would be bad policy) to extend it. Art. V and the Necessary and Proper Clause provide the suitable constitutional authority.  

The Trump OLC (Office of Legal Counsel) disagreed. The Biden OLC didn't repeal that statement but noted it was debatable. And, ultimately, it said Congress could still act regardless of what it said on the matter.  It is after all an executive advisory group.

The ERA does not simply guarantee equality based on sex. Its wording is broader than the Equal Protection Clause. It was understood by many to have a broad reach. The true reach of the ERA, contrary to its symbolic meaning, is rarely discussed. 

The matter remains symbolic since Biden's statement does not mean -- like some sort of Easter Egg -- the Constitution was amended while most of the nation was not aware. It is not how we should run a railroad.

The statement --- even without formal instruction to the archivist -- will likely be fodder for litigation. For instance, Merrick Garland has determined that the current drug used for executions is not safe enough. The Trump Justice Department will -- safe to say -- have a different view. OTOH, the finding will influence challenges to state protocols. 

I think an open-ended view of equal protection is warranted. Like Ainsley Hayes on West Wing, at the very least, I think the current Constitution applies equal protection based on sex and gender. Trying to force the ratification of a fifty-year-old amendment through the back door is not a good way to do it.  

Anyway, NPR and others have more. 

ETA: There were various reactions to his statement, some rather overblown. Again, I don't think it means much. It also is not quite "the earth is flat" -- some reasonable people agree with his sentiment. 

The fear that his statement will aid and abet other dubious arguments is overblown. It doesn't add much at all. It is not "lawless" for him to state an opinion. 

If you think it beneficial, the statement again is of limited value. Congress and the courts remain the ultimate decision-makers. To the degree public opinion matters, there really is not much concern over the issue. It's a sideshow. 

Jack Smith Report (Partially) Released

Senator Elizabeth Warren said back in 2019: 

First, a hostile foreign government attacked our 2016 election to help candidate Donald Trump get elected. Second, candidate Donald Trump welcomed that help. Third, when the federal government tried to investigate, now President Donald Trump did everything he could to delay, distract, and otherwise obstruct that investigation. 

That's a crime. If Donald Trump were anyone other than the President of the United States right now, he would be in handcuffs and indicted. Robert Mueller said as much in his report, and he said it again on Wednesday. 

That's why I came out in favor of impeachment after reading all 448 pages of Mueller's report. This is not about politics — it's our constitutional duty as members of Congress. It's a matter of principle.

Warren supported changing the current policy against indicting sitting presidents. She supported a special task force to investigate the Trump Administration when she ran for president. 

I cannot find the exact words but as I recall it would be separate from a normal investigation in the Justice Department. President Warren probably would have appointed a special counsel before Trump ran for re-election (2024). Biden did not do #2 and #3.

Attorney General Elliot Richardson promised Congress he would not fire the Watergate special counsel except for cause. Merrick Garland did not promise Congress to appoint a special counsel to investigate Trump. The Senate Democrats could have made that a grounds for their confirmation vote.

The release of Jack Smith's report related to the election interference case brings to mind these things. In hindsight, at least, a special counsel should have been appointed earlier. But, this is not just about Merrick Garland. The investigation of Nixon was not just about one person either. We need to know the full story to assign responsibility and know how to act in the future. Scapegoating is not advisable.  

One analysis takes a strong potshot -- "dithering coward" etc. -- at Merrick Garland for not changing the policy against prosecuting a sitting president. What good was that going to do in context? 

The policy allegedly is constitutionally required. I disagree but many liberal law types disagree with me. It is not just Merrick Garland. And, if the prosecution continued, Trump would have gone to the courts to try to block it. There was not enough time after the election to prosecute Trump before January 20, 2025.  

Jack Smith's report argued that if Trump did not win the election, that evidence was there to convict. Chief Justice Roberts and his conservative crew slowed things down via Trump v. U.S. The trial could have been over months before the election. 

The impeachment managers in Trump's first impeachment warned that if he was not convicted and removed he would "do it again." He did. As summarized by the Washington Post:

[Trump] pressed officials in key swing states to ignore the popular vote and flip electoral votes from Joe Biden to Trump; tried to submit fraudulent slates of electors from such states; threatened Justice Department leaders to open sham investigations and falsely claim election fraud to get states to join the plan; and pressured Vice President Mike Pence to use his ceremonial role overseeing Congress’s election certification on Jan. 6, 2021, to overturn the results.

The second impeachment involved a charge of insurrection. Others pointed to the 14A, sec. 3. disqualification provision. Jack Smith argued that as a criminal matter, the case was not clear enough to warrant that route. He used other criminal provisions. 

The interference of the electoral count cited in the criminal indictment very well involves the sort of thing that is "insurrection" for purposes of 14A, sec. 3. The provision is not a criminal provision for purposes of the "beyond a reasonable doubt" standard. 

But, even there, there were seditious conspiracy convictions in a few January 6th cases. There is a clear overlap between insurrection and sedition:

In order to win a seditious conspiracy case, prosecutors have to prove that two or more people conspired to “overthrow, put down or to destroy by force” the U.S. government or bring war against it, or that they plotted to use force to oppose the authority of the government or to block the execution of a law.

Garland did not release the second part of the special counsel's report respecting the classified documents case. First, let us recall the multiple delays there involved different issues than in the election interference case. Garland himself has even less blame in that case for the delay. Judge Aileen Cannon had a large role, for instance, in multiple delays. 

Second, the reason is that two prosecutions are pending involving Trump flunkies involved in the mishandling of the documents. There is a sort of formal reasonableness to that but (1) without Trump, the cases are fairly trivial (2) the Trump Justice Department is likely to drop them. 

(Yes, something to ask the presumptive Attorney General.)

The rest of the report will then likely be stuffed (again, ditto). Why not just drop the two cases and release the report now? I think it is correct to call out Attorney General Merrick Garland (who overall I think is a tragic figure who some people think was there to do one thing) here.

Trump is already a felon for election interference in New York related to the 2016 election. I heard on Fox News (someone else was watching it as I put together a table) an argument that the unconditional discharge shows how the prosecution was phony. 

A confusion of cause and effect. The judge only provided that sentence for the same reason why Jack Smith dropped the prosecutions -- the rules for a sitting you know what. The special counsel's reminder is no less true because of its bad taste:

The Department’s view that the Constitution prohibits the continued indictment and prosecution of a President is categorical and does not turn on the gravity of the crimes charged, the strength of the Government’s proof, or the merits of the prosecution, which the Office stands fully behind. Indeed, but for Mr. Trump’s election and imminent return to the Presidency, the Office assessed that the admissible evidence was sufficient to obtain and sustain a conviction at trial.

If you want an assured happy ending, watch a Hallmark Channel movie. But, gaslighting aside, guilt is not washed away with nearly fifty percent of the fraction of the voting population that deigned to vote. 

There are certain safeguards in place when handling dangerous items. Let us remember that when handling things after noon next Monday.  

Supreme Court Watch: Welcome to 2025 Edition

TikTok briefing continues but the Court overall taking advantage of the holiday. Still, there is some court stuff to discuss. It is 1/3 of the government after all.

Jimmy Carter

President Carter was the only full-term president who did not appoint a Supreme Court justice. He still put his stamp on the federal courts:

In addition to the 41 women judges Carter named to the federal judiciary, he appointed a record 57 people of color to the bench, including those who would become prominent federal appellate judges such as Leon Higginbotham, on the Philadelphia-based 3rd Circuit; Amalya Kearse, on the New York-based 2nd Circuit; and Damon Keith on the Cincinnati-based 6th Circuit.

President Biden, correctly, was proud of his judicial picks. He followed in the footsteps of Jimmy Carter. 

The Supreme Court also declared:

In recognition of the President’s announcement of a National Day of Mourning for James Earl Carter, Jr., the Chief Justice has ordered that the Supreme Court building will be closed on Thursday, January 9, 2025. 

President Biden also declared the same for executive departments. Retired Justice Breyer was originally appointed to the Court of Appeals by President Carter. 

Amanda Tyler has a nice essay focused on his views on religious liberty with a Baptist touch. 

TikTok/Trump

A miscellaneous order was dropped on New Year's Eve granting the petitioners divided argument time in the TikTok cases. The various sides are keeping busy during the holidays to be ready for 1/10.  

There are two cases involved here. The order means that each party will have a chance to have their say.  The two cases involve TikTok itself and a group of people who use and benefit from the platform. 

Federal legislation bans TikTok in the United States on January 19 (interesting date) unless they are separated from China. The president can delay this but President Biden has not. The Supreme Court, especially given the nature of the law, sped along an appeal and will have oral arguments in early January.  

Chris Geider and Steve Vladeck are two people who have reported and analyzed the legal developments. Also, as usual, Amy Howe is a person I go to for a basic summary of events with less personal opinion.

One notable development is a brief from the president-elect, which Vladeck in particular finds problematic. One thing that bothers Vladeck, other than the legal arguments, is the "puffery" (Geidner):

President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the Government.

The author of the brief is the presumptive solicitor general. A few things. (1) Yuck. (2) President Biden is the current president. His "electoral mandate" was more sizable than yours. (3) Vomit.

I'm embarrassed and disgusted these assholes are going to be running the federal government. Professor Vladeck shows how it is not just distasteful but bad lawyering. They are bullshit artists. We know this.

Meanwhile, a federal appeals court upheld E.J. Carroll's judgment that held the President-Elect sexually assaulted and defamed her. 

Chief Justice End of the Year Report

"Trump re-elected. Mission accomplished." No, that wasn't the theme. Would have been truthful.

Chief Justice Burger started the release of end-of-the-year reports. Each Chief Justice had their own style. Roberts has a specific theme, tossing in some historical vignette, and then ends with a few pages summarizing the case data for the year. 

The 2024 report begins with King George III threatening judicial independence. We then have a paeon to an independent judiciary. Criticism is acceptable but a few things are not:

(1) violence, (2) intimidation, (3) disinformation, and (4) threats to defy lawfully entered judgments.

There is a tired feel to this standard line, including this statement of what "intimidation" entails:

Public officials, too, regrettably have engaged in recent attempts to intimidate judges—for example, suggesting political bias in the judge’s adverse rulings without a credible basis for such allegations. 

Is this a subtweet to people like Senator Whitehouse, who has provided evidence? Sometimes, bias is wrongly alleged. Other times, it is well-founded. The lack of a binding ethics code is still a problem. 

The reference to bots and such is concerning though too thin to fully judge the problem. And where is the modern-day evidence of defiance? 

Chris Geidner has more, including an apparent reference to Judge Aileen Cannon being treated unfairly. Allegedly. He argues the report is a bit chilling. I found it more tiresome on the first read.  But he makes some good points on why it's more.  

The last pages of data do not seem too noteworthy. Others can analyze the data. The conservative Supreme Court helped Trump win. They well deserve a lot of criticism. Do it accurately and peacefully. 

Some people will note that we want an independent judiciary in the times of Trump. It will often arise in lower courts, which have binding ethics codes. Judicial independence fits in a wider system of checks and balances. Roberts provides a slanted version.  

Odds and Ends

The Supreme Court has recently sped along the preliminary bound copies of its opinions. The process has already begun for this term. There were a few opinions left from last term. Checking, it is done now.

Note how each opinion has a volume and page number. The process is not done for 2023 orders.

Justice Breyer (retired) will hear some lower court cases next year. O'Connor and Souter (last in 2020) also did that. Tom Clark did so back in the day.

The new (completely Republican) Congress begins at noon on January 3. Senator Bob Casey, who lost re-election, presided over a pro forma session on the 30th. We will also have someone replacing Vance. 

So, Ohio will have two new senators.