SCOTUS Watch: Post Holiday Edition

James Wilson is an interesting guy. I liked the author's book on abolishing the Electoral College. I did not like this one. Charles Pinckney is also interesting. An older book on that guy is almost a monograph or something (it's small). Decent account. 

The Supreme Court didn't block a New York law denying religious exemptions to child vaccine requirements. Alito and Gorsuch, without comment, dissented. Good.

Kavanaugh, by himself, rejected a Republican redistricting lawsuit request. [The Court later also did so.] Limited bit of sanity.

Esther's Army

 

I write about a book concerning conservative women here. 

Todd Blanche: Confirmed at 4 A.M. Saturday Morning

 

Jimmy Kimmel knew Sen. Cassidy, now a lame duck after losing the primary for not being 100% Trumpian, was a weasel years ago. 

But Collins and Murkowski (50-49) are not much better. They support Republicans. Their usually gratutious "nay" votes (though they couldn't even support an abortion rights bill) just give them the credibility necessary to win in Maine and Alaska. 

Anyway, this is a new low. Blanche ... when Pam Bondi is too independent. Republicans need to go the way of the Whigs.

Senator Lindsey Graham Dies

He had his moments. He was lately a tired, pathetic Trump supporter. More here with an extended bit on Mitch McConnell. 

SCOTUS Watch: Order List [And Other Stuff]

The Supreme Court handed down a short Order List before going on a little mid-April break. One grant:

Issue: Whether the Veterans’ Judicial Review Act stripped district courts of the jurisdiction, recognized by this court in Johnson v. Robison, to hear challenges to the constitutionality of acts of Congress affecting veterans’ benefits.

A bit of lay-up since both sides agreed they should take the case. The solicitor general also argued that the court below was correct. He also suggested the plaintiff sued the wrong person, helping to explain the curious "U.S. Congress" part of this case. 

Meanwhile, among the orders is one in which Gorsuch did not take part. Only Kagan and Jackson explain themselves when such a recusal happens. They are right to do so. 

Again, nothing is scheduled until next week, on Friday (conference/non-argument session, likely to swear in people), but something might come up. 

Steve Bannon

SCOTUSBlog provides more details that show that even a brief, bland-looking Order List can have some interesting details. More Trump news, too:

The justices also sent the case of Stephen Bannon, a former adviser to President Donald Trump who was convicted of contempt of Congress, back to the lower court, where the Department of Justice has filed a motion to dismiss his indictment.

Bannon served his brief sentence. This has a symbolic quality. After an extended -- ridiculously so -- process, which must be reformed, Bannon actually was punished for obstruction of Congress.

This, of course, has to be discouraged. I am being sarcastic. Anyway, this seems to have a gratuitous feel to it. The United States provided a brief reply that it was dismissing the indictment "in the interests of justice." Yes. Justice for Trump stooges.

They had the prosecutorial discretion to do this, though in this case, it is horribly applied. Once they do so, the argument is made that the procedure applied here in this order is appropriate. 

Iowa decided to supply an amicus as part of its Republican/Trump support role. It is laughable that Iowa felt it necessary to get involved here. 

The procedural move here does not appear improper. The ultimate problem is that Trump yet again finds a way to remove even the bare minimum justice for the past wrongs he and his minions inflicted. 

I'm open to being proven wrong. It does seem wrong that the Justice Department can step in at this point. But if the prosecution was actually improper, a later action of this sort might be sensible. 

So, again, it does seem like it turns on discretion. 

ETA: On the odds and ends front, some more rules (Appellate/Bankruptcy/Evidence) were released. 

SCOTUS doesn't intervene in an election dispute. Sounds like a blatant case, even if you don't like the law. Might have line drawing issues. Easy case here.

I say more here including about Sotomayor stuff. 

Senator Tuberville's Bigotry

On X, Tuberville reposted an image of Mamdani next to a photo of the deadly 9/11 terror attacks in New York City along with the words "the enemy is inside the gates."

Definitely one of the top idiots in the Senate. Largely crickets from Republicans. Not the only example of anti-Muslim bigotry. 

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. 

SCOTUS Watch: Past and Future

Scalia/Court Expansion 

The tenth anniversary of Justice Scalia's death recently passed. Volokh Conspiracy had multiple positive accounts. A Fix the Court email update I received was more negative. 

My position is also largely negative. See here. I linked a VC post, and "Joe" says more over there. 

Scalia's death led to a de facto "packing" of the Court when Republicans refused to even have a hearing for Merrick Garland. They then rushed (one month) the confirmation of Barrett. 

Raw political hardball mixed with hypocrisy.

A minority argues that the overall history here warrants court expansion. Only a small number of Democrats in Congress openly support this. Some observers are loudly supportive. 

The FDR court "packing" scheme is cited by both sides. Did it help change the law, or is it generally a sign the whole thing is a bad idea? 

FDR'S Gambit by Laura Kalman provides a detailed account while near the end drops an opinion that it was helpful for FDR's ends.

I found the book a tedious slog, without ignoring it is also an impressive work of scholarship. There is a lot of unnecessary detail without overall seeming to add much. I finally gave up reading the book straight through around 100 pages in. 

There are, as is usually the case, some interesting and informative details. Overall, however, I don't think I learned much new about the bottom line. 

The book ends up somewhat agnostic if dubious about a court expansion proposal today. The book was published in the middle of the Biden Administration. 

Ultimately, an expansion proposal should at least be pushed as a negotiation tactic. I have discussed this in the past and won't repeat myself here.

We now have evidence that Alito will retire soon, maybe in a few months. A 6-3 Court with four (and I think Thomas will resign before the end of Trump's term) younger conservatives nominated by Trump is just appalling.

Something major has to be done if the Democrats get a trifecta. A strong expansion faction might make it more likely that we will have serious reforms passed. 

SCOTUS News

SCOTUS dropped a schedule for the final oral arguments.

It also "may" (nearly always means they will) announce opinions on the 20th (when they officially come back from their break), 24th (they start hearing orals again the day before), and 25th (my sister's birthday). SCOTUSblog will have live blogging. 

For whatever reason, Oyez.com still doesn't have the opinion announcements from last term. There is a new AI-aided approach to provide video. Fix the Court has more, and its comments are basically on point. 

John Oliver's dog justice videos were good, too. 

Holiday

Okay. So, next Friday is when the justices officially come back with a conference (surely) and opinion announcements (probably). 

Tomorrow is a holiday. A historian is wary about the "monarchial" practice of celebrating presidential birthdays. Her piece is generally on point. 

The name of the holiday varies, including the use of punctuation. On the federal level, it is George Washington's Birthday, which was originally February 22 (using today's dating), so it is somewhat early to celebrate it on the 16th. 

Six Dems Speak About Unlawful Orders / Trump Wants Them Dead

The video she references features Senator Elissa Slotkin (D-MI), Senator Mark Kelly (D-AZ), and Representatives Chris Deluzio (D-PA), Maggie Goodlander (D-NH), Chrissy Houlahan (D-PA), and Jason Crow (D-CO). More than one of these people is the sort some people deem too darn moderate. 

Slotkin is a former Central Intelligence Agency (CIA) officer. Kelly was a captain in the U.S. Navy. Deluzio served in the U.S. Navy. Goodlander is a former intelligence officer. Houlahan served in the Air Force. Crow is a former paratrooper and Army Ranger.

So I will say in my specific instance that I have had a few conversations with people who have indicated discomfort with sort of the current state of affairs. I know my colleagues have had similar kinds of conversations. But what I would say is this is, as I mentioned, kind of not a specific event but rather a culmination of all of these kinds of things that have resulted in us feeling like we really needed to make sure that we told people that people like us sit in places like this with backgrounds like theirs, and we want to make sure that they remember and understand that we’re here for them. And that they need to remember and understand that they need to uphold the Constitution in their jobs.

Rep. Houlahan, who filed a complaint with the Capitol police regarding Trump's threats, discussed the matter with Greg Sargent. Let's read what they said:

We know you are under enormous stress and pressure right now. Americans trust their military. But that trust is at risk. This administration is pitting our uniformed military and intelligence community professionals against American citizens. Like us, you all swore an oath to protect and defend this Constitution. Right now, the threats to our Constitution aren’t just coming from abroad, but from right here at home. Our laws are clear. You can refuse illegal orders. You can refuse illegal orders. You must refuse illegal orders. No one has to carry out orders that violate the law or our Constitution. We know this is hard and that it’s a difficult time to be a public servant. But whether you’re serving in the CIA, the Army, our Navy, the Air Force, your vigilance is critical. And know that we have your back. Because now more than ever, the American people need you. We need you to stand up for our laws, our Constitution, and who we are as Americans. 

Some people are gaslighting (yet again) and acting like they said this out of the blue without cause. Patently absurd. For those who want some details, see here. The blatant case, leading to at least one major resignation, is the murderous Caribbean strikes. 

The matter was also discussed in this comment thread. Suffice to say, they are not guilty of "sedition" or worthy of the death penalty. There is also a high test before you can refuse to follow orders. One rule cited was "or a person of ordinary sense and understanding would have known it to be unlawful." 

(Marty Lederman elsewhere argued an official supporting opinion from the Trump OLC would likely be a CYA if anyone following orders was legally prosecuted. Generally speaking, don't hold your breath regarding consequences.) 

Trump's rhetoric is dangerous. We have been down this road before, including his repeated acts of contempt of court during his civil and criminal trials for which he got NO consequences (pittance fines don't count). This guy is a menace. 

There has been an uptick in threats to judges in recent years. His remarks also threatened witnesses and others, opening them up to harassment and worse. We ("we" particularly being the media and Republicans) take things much too much in stride. 

A few Republicans pushed back at Trump's welcoming of the prosecution and execution of fellow members of Congress. Graham, with a military background, denounced both sides. 

Rand Paul, the now and then libertarian who usually supports the Republicans, was concerned. Thune didn't support the response but argued the video was uncalled for. Not too impressive from the tyrant loyalist caucus. I'd like a poll of Republican congressional members who are former military. 

Anyway. These six members are not Bernie Sanders types. (Well, TBH, I am not familiar with most of them; Slotkin and Kelly surely are not.) They have their moments. Slotkin had a very good response to Trump's speech to Congress earlier this year.

Trump is a tyrant. People in power should treat him and his minions accordingly. Thank you. 

George Santos Commutation

The 23-count indictment filed Tuesday replaces one filed in May against the New York Republican charging him with embezzling money from his campaign and lying to Congress about his wealth, among other offenses.

George Santos was convicted, expelled from Congress, and sentenced to seven years in prison. He went there in late July. Now, less than three months later, Trump commuted his sentence. 

Trump has a "birds of a feather" policy.

You see a pattern?

Trump's statement explaining his commutation has an extended potshot at Sen. Richard Blumenthal, including a childish nickname, regarding allegations he padded his Vietnam record. 

This is the usual "look a squirrel!" troll behavior. We are being governed by an Internet troll. Republicans don't want to do anything about it. This is another reminder they are chickenshit shitheads. 

Talking about animals:

The statement also says Santos is "something of a rogue," but was a loyal Republican. Again, it being Trump, he doesn't just say that. He notes Santos "has Courage, Conviction, and Intelligence" to always vote Republican (all caps). 

He tosses in that Santos was in solitary confinement for long stretches of time (he wasn't in prison for three months) and that seven years was too long a sentence. That might be debatable (I don't know the going rate), but the appropriate time was more than three months. 

(He was sentenced to 87 months and served 84 days, which is just wrong. Just have him serve three more days. These people can't do anything right.) 

He was not just a "rogue" and a repeat joke on Late Night shows. Santos was guilty of multiple crimes, including those that involved stealing money from people. He abused his office, besmirching the people's House. He hurt people. To cite one thing:

U.S. Rep. George Santos stole the identities of donors to his campaign and then used their credit cards to ring up tens of thousands of dollars in unauthorized charges, according to a new indictment.

Just a lovable scamp! Notably, he is not only being released from prison. The clemency grant involves "immediate commutation of his entire sentence to time served with no further fines, restitution, probation, supervised release, or other conditions." 

Just adding insult to injury.

Various news articles reported the commutation and Trump statement without providing suitable clarifying details. For instance, a quick check shows the "solitary confinement" occurred after a death threat. It was done for his safety. 

(It is generally best just not to trust anything Trump says, but an accuracy check should be a basic news procedure.)

This is petty corruption. The little things sometimes grate the most. They can just be that blatant. This is not on the level of the pardons/commutations of those involved in 1/6. But it is a blatant abuse of the pardon power for partisan ends. 

Again, our anger should be broadly expressed. The Republicans in Congress refuse to do much at all, other than some of them sometimes acting concerned, to do anything about him. They are all enablers.

Today is No Kings Protest Day. Let's also have no trolls. Trump should be blocked. 

ETA: Not too surprisingly, his former N.Y. Republican colleagues were not a big fan of his good luck. This is what your guy stands for, so tough luck. 

===

Related: "A federal prosecutor who resisted President Trump’s demands to bring charges against Letitia James, the New York state attorney general, was fired along with her deputy on Friday evening, according to three people familiar with the matter."

A con artist, however, his right up their alley.

Swear in Congresswoman-Elect Adelita Grijalva!

Democrats have had multiple members of the House of Representatives die this term. There is some concern about people hanging on too long. Senator Dianne Feinstein was flagged a few years ago. 

A sad case is the D.C. delegate, who was the subject of multiple articles recently spelling out that she is no longer fit to serve. She doesn't want to go and has not conclusively said she won't run for re-election. 

D.C. needs strong representation, and she is unable to supply it. She is approaching 90 and is physically unfit. Just to remind, D.C. should be treated equally. Current mistreatment underlines the importance of statehood. It would have three representatives in Congress now as a state and other protections.  

Adelita Grijalva (D-Arizona) won a special election last month after her father died. Now, the Speaker of the House is refusing to allow her to be sworn in. 

Democrats tried to have it done during a pro forma session, as it was done earlier this year with two new Republican members. Speaker Mike Johnson alleged that they would swear her in as soon as she wanted, but that was a lie. 

Johnson wants to wait until the House is back in regular session. Other new members were sworn in immediately. This has led to claims of monkey business, even from Marjorie Taylor Greene. 

(Greene has started to appear saner more often than usual. People are assuming she is thinking of running for president in 2028. I wouldn't be surprised.) 

Note that she used the typical trollish "Democrat member" phrasing. Is it simply by instinct now? The term is "Democratic." It's an adjective. 

She signed the discharge petition to force the release of the Epstein files. If the votes hold, Grijalva would be the necessary vote. Of course, Johnson denies that it is the reason. Surely not!

Johnson did give three White male lawmakers who won special elections this year their oaths of office on the House floor less than 24 hours after polls closed in their elections. One of those lawmakers was Walkinshaw, who joined the House in early September. The other two, Florida Republicans Reps. Randy Fine and Jimmy Patronis, got sworn in during a 12-minute session in which no other real business was conducted.

Grijalva, who cannot serve her constituents until she is a formal member of Congress, earlier noted that she didn't want to assume it was some sort of conspiracy. But then weeks passed. If not the Epstein files, what is it? Because she is a Latina? 

This is the sort of gratuitous bullshit that leads people to assume things. I think even if she were sworn in during a pro forma session, the discharge petition would only be put in place when normal business returns. I'm not completely sure, but it seems logical.

Either way, that would be a limited delaying action and more trouble than it is worth at this point. The whole thing just seems to be a gratuitous partisan move. Any other inferences are well deserved. 

Trump appointees, including Attorney General Pam Bondi, are using their congressional appearances to rant and rave. Republicans are acting like shitheads.

Partisan politics -- let's be fair -- can result in some of that. But Republicans are going the extra mile. 

The people elected Adelita Grijalva. They deserve to have their choice sworn in. Stop being a dick. 

Charlie Kirk Killed

I discuss the murder of right-wing troll (with some left-wing supporters), Charlie Kirk, here. The killer has been captured after a family friend notified the police and convinced him to surrender. Good thing as the FBI was having issues.

New York Protects COVID Vaccine Access

New COVID vaccines have only been approved for those over 65 and people with certain health conditions. The linked NPR article has this bit about the Secretary of HHS:

The moves are the latest in a series of steps Kennedy, a long-time and vocal critic of vaccines, has taken to curtail development and availability of vaccines. He's downplayed the risks of infectious diseases, falsely claimed vaccines are risky, canceled hundreds of millions of dollars of research to develop new mRNA vaccines to protect against future pandemics, replaced a key federal advisory committee with like-minded skeptics, and has threatened to overhaul protections for vaccine makers.

I am reminded of the Stolen Valor Act Case that noted "Lying was his habit." Lying and being a self-righteous asshole is Kennedy's asshole. 

Like Susan Collins, it is somewhat unfair to focus on his voice, which he can't help [the tan is a bit different], but an annoying voice is harder to take when the person is annoying overall.  

Robert F. Kennedy Jr. continued to lie, quite combatively (repeatedly interrupting female senators; to be fair, he was a general asshole from what I can tell), in a recent Senate hearing. The chair, upon request from the ranking Democrat (who cited previous lying), rejected swearing him in. Still, perjury or no, it's illegal to lie to Congress. 

[His lies are so blatant that repeatedly, including in news interviews, there is clear evidence of him saying the opposite of what he now claims to be true.]

Criticism is welcomed -- at some point, Trump very well might decide he is not worth the bother -- but it is a bit hard to take when every single Republican except McConnell (hard to take for other reasons) voted for him. There is a closing the barn door a bit late feel to all of this.  

(Multiple Republican senators who voted for this public health menace are doctors.)

Multiple blue states are starting to provide alternatives to protect public health. Florida has gone the other way with references to vaccines for schoolchildren as akin to slavery. A reminder that a segment of children, for health reasons, cannot take vaccines, relying on herd immunity.  

Gov. Hochul (New York) handed down an executive order allowing pharmacists to prescribe vaccines confirmed by the state Commission of Health and provide them upon a doctor's prescription. The executive order is only for a month, to give the state legislature power to act. 

People can take the new COVID shot with their autumn flu shot. October is a good time to get a flu shot. I have begun to get them over the last few years. So, the executive order alone might not be enough unless it is extended. 

I rely on my doctor and experts to determine what vaccines to take. My doctor, in a recent appointment, told me I was due for a pneumonia vaccine. So, I had it. My arm was somewhat sore for a few days, but overall it was painless. 

There is no general reason to trust RFK Jr. with our health or the people now in control. That is dangerous. Public health should not be something that depends on politics. Surely not at this level. 

Experts overall counsel people to take the COVID vaccine. Again, I am not going to second-guess these people. I am not going to play doctor. 

I am not a doctor. Doctors in the Senate berated RFK Jr. Plus, there are a variety of reasons not to trust him. He is also not a doctor or any sort of actual expert on public health.

Tragically, we have to rely on the states to serve as a backup. Florida is so bad that Trump is wary. Why wouldn't he? Trump has no personal reason to distrust vaccines. 

He chose Kennedy for political reasons. He opposes things like mask mandates for political reasons. He is not some vaccine skeptic. It is not like racism or sexism for him. Still, half a clap at best:

“Look, you have vaccines that work. They just pure and simple work. They’re not controversial at all, and I think those vaccines should be used, otherwise some people are going to catch it, and they endanger other people,” Trump added. “And when you don’t have controversy at all, I think people should take it.”

This is typical vaccine skeptic talk. Some vaccines are "controversial" and only the non-controversial ones "should be used." That also leaves open opposition to vaccine requirements. We should eat healthily too. There are no mandates for healthy eating. 

There are multiple options to determine the worst choice among Trump's Cabinet. Secretary of Defense (yeah, still is) is high up there. HHS, however, very well might be the most dangerous. The threat to our health is deadly.  

For now, there are multiple ways to provide some oversight and answer lies. The courts continue to be filled with lawsuits against the Administration's illegal actions. Public hearings also provide benefits.

People are cynical about the value of these hearings. They are not panaceas. They do provide some value, including demands for answers and access. 

SCOTUS News

Barrett's Book

Amy Coney Barrett's book, after a long time in the making, is due to be released next week. 

I don't begrudge justices writing books. They have been doing so at least from the time of Chief Justice Marshall, who wrote an official biography of George Washington. They were a mixture of legal and non-legal subjects. Here is a list up to 2012. 

The list includes personal accounts, including John Campbell (who resigned to serve the Confederacy). Not released when he was a justice. Earl Warren's autobiography was released after he died. 

Douglas released some personal accounts while he was still a justice. As did Sandra Day O'Connor. John Paul Stevens waited until after he retired. 

Thomas did not. Kavanaugh and Alito are writing books. Kennedy's book will be released soon. On the current Court, only Roberts and Kagan have or will not in the short term have no books. Breyer, however, focused on legal topics in his books.  

There can be ethical concerns, including properly recusing when the publishing firm has a case in front of the justices. Some people oppose this type of profit-making as a grift. 

Eh. There is a public demand. Justices can provide something of interest. Justice Jackson's book was pretty good, and people are interested in her story. People like Sotomayor's children's books. She is scheduled for Stephen Colbert to promote her latest.

I would be surprised if (1) this book had nothing of interest, (2) it was chocked filled with fascinating details. She has an interesting biography to some degree (all those kids!). 

An inside account, however watered down, is of some value. For instance, she will make some comments that express her views, if in some general, often bland sort of way. Having a conversation about these issues has value. Justices will add to it in various respects.  

It is questionable when conservatives promote these books on the conservative circuit. It has a dubious ethical feel of promoting a certain ideological cause. Sotomayor and Jackson apparently sought out more mainstream places like bookstores and libraries. Barrett has talked to a CBS correspondent, too, so far. 

Previews cite her comments defending Dobbs, including citing Ginsburg's criticism of Roe v. Wade. She thought it went too fast. She wanted them to use an equal protection rationale. It was too soon for that.

The Court's sex equality jurisprudence was in its infancy. Also, even Blackmun -- the author of Roe -- rejected an argument that pregnancy discrimination was sex discrimination. Nine men were not ready.  

She had a case of a servicewoman who wanted to have her baby (the government, back then, encouraged abortions). Her brief included an argument for reproductive liberty. Ginsburg strongly defended -- this is what Dobbs was about -- upholding Roe v. Wade.  

Barrett also argues that the people overall are more divided about abortion than other things protected as fundamental rights. Only as a matter of degree. A Roe-like ballot measure almost met the 60% threshold in conservative Florida in 2024. A somewhat less liberal measure might have passed.

I don't want to read the book. I find her confirmation appalling after the Garland blockage. She repeatedly made horrible decisions. Barrett might be the best of the three Trump justices, and better than Alito and Thomas, but only grading on a curve. 

I respect my health too much to read that book. It would cause me angina. It's why I can't read journalistic accounts of the Kavanaugh nomination. 

Barrett says she wrote the book to help people trust the Court. She argued in the past that the justices aren't just partisan hacks. YMMV on her success. 

Lower Courts Criticize 

An excellent article discusses lower court judges' aggravation with the Supreme Court. 

They are being attacked, sometimes with violent threats, for doing their jobs. It has some judges (Republican and Democratic nominees) giving opinions off the record, including some CYA "I'm concerned about the judicial TDS" tool to provide balance to please the editors. 

The Supreme Court does little but reverse them (oh joy! They could do so more often!) and then criticize them for not reading the tea leaves of opaque shadow docket opinions "correctly." 

Kavanaugh, who joined a Gorsuch criticism of lower court judges, grants that sometimes the opinions are unclear. The justices sometimes struggle for agreement, resulting in some confusion. 

How about just letting lower court judges do their job? If you can only agree upon opaque confusion, don't step in. Justice Jackson correctly challenges Kavanaugh's claim that they have to do so. 

[Footnote 8.]

And, yes, it is hard listening to that guy (even quoted on the written page). He is such a tool.  

Summer Order List 

September is here. Children are going back to school. And, we have the last of the three scheduled summer order lists. The new term is rapidly approaching. 

The order list is (as usual) bland. Justice Thomas didn't take part in one decision and (like each conservative) did not explain why. 

These order lists, however, usually have some interesting tidbits. Chris Geidner flags on BlueSky that the Administration was granted argument time in two cases for which it is not a party. 

The case involves limits on the right to counsel (it supports the state) and the Colorado ban on conversion therapy for minors (it would hold the state to the hard-to-meet strict scrutiny standard).  

Execution Postponed 

A Utah execution was postponed because the state supreme court is concerned about dementia issues. Thus, an execution for a crime that took place in the 1980s is delayed yet longer. Just forget about it. 

There are more executions scheduled later this month.

Partisan Gerrymandering in the Texas and California

Donald Trump said Tuesday that he is pushing Texas Republicans to redraw the state’s congressional maps to create more House seats favorable to his party, part of a broader effort to help the GOP retain control of the chamber in next year’s midterm elections.

Trump wants to rig the system because he thinks the people will not otherwise support him. There is much opposition to the things he has done so far. He is trying this time to do a bunch of things without congressional approval (illegally, though the Supreme Court repeatedly has helped him out).

Partisan gerrymandering is a basic way for a political party to obtain and retain power without popular support. It is ultimately a violation of the republican form of government. "We the People" no longer govern by a fair expression of the vote. 

The Guarantee Clause has long been deemed (probably somewhat wrongly) non-justiciable. Nonetheless, other means can be used by the courts, including the Equal Protection Clause (see "one person, one vote").  States and Congress can also address the problem.

The Supreme Court in Rucho v. Common Cause (2019) conclusively (after Kennedy never bit the bullet) said partisan gerrymandering is not for the federal courts to handle. I question blaming John Roberts, full stop, here. 

Kavanaugh is probably the person directly to blame. He was the fifth vote. Likewise, Barrett is to blame for Dobbs (abortion). But Roberts is the Chief Justice. It is part of his decades-long conservative anti-voting rights campaign.* 

Texas is the second most populous state. It is standardly cited as a red state. Nonetheless, over forty percent of the voting population voted for Hillary Clinton in 2016. There is a significant Democratic presence. A fair map will provide many Democrats. Good luck with that. 

The campaign to make the map even more Republican-focused apparently cannot wait until the end of the decade. The Constitution sets forth once per decade apportionment tied to the census. Mid-decade apportionment, other than to fix disputed maps, should be traditionally disfavored. 

California, the most populous state (and state of mind), has stepped in to check Texas. They are using the amendment process and proposing a gerrymandered map. The people have to accept the amendment first. New York has a more extended process. We could not act as quickly.  

The amendment has language supporting federal reform, both legislatively and by constitutional amendment. Partisan gerrymandering ultimately requires a national solution. 

Strategically, unilateral disarmament is ill-advised. There will also be a "race to the bottom" problem. Now, Republicans control many more legislative halls and governors' mansions.

They see misrule as having short-term gains. 

==

* Roberts decided on Thursday, for once, to vote for the liberals during Trump 2.0 in a confusing 4-1-4 ruling. More shadow docket shenanigans. 

Jackson strongly speaks out, including accusing the Court of Calvinball. The case involving NIH funding, and in one bit, Jackson notes the result will include euthanizing animals used in research. 

Great. Now, SCOTUS is killing animals.

Eric Adams Receives (Limited) Support from Police

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

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

Numbers can be misleading:

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

He also has problems with stability:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Again, it isn't THAT hard. 

Symbols of Wider Trump Wrongs

Senator Jon Ossoff, who is up for a quite competitive seat next year, "strongly" agrees that Trump should be impeached:

“There is no doubt that this president’s conduct has already exceeded any prior standard for impeachment by the United States House of Representatives,” Ossoff told the audience at a town hall in Cobb County, adding later that there is “no question” a number of Trump’s actions have risen to the level of an impeachable offense.

The Administration's wrongdoing is akin to a powerful industrial firehose spraying so much water that we have a hard time keeping track. We keep on reading about the latest thing. It can be overwhelming. 

There is a value in symbolic case studies, which provide clarity and allow a special amount of attention. Kilmar Abrego Garcia is an example. He has a powerful story. 

The government clearly made a mistake. It is being reckless and criminal. Yes. They are openly ignoring protected rights. That is not legal. Impeachment is supposedly an overall safeguard. It is a paper tiger in many ways, even if Democrats controlled the House. Even more so now. 

(Impeachment retains some value. The two impeachments of Trump had value. They weren't enough and 14A, sec. 3 was but one additional tool that should have been used.)

So, other methods are used. A Democratic senator went down to visit Garcia. It helped to lead to his being removed from a cruel prison. There have been some implications that there was a positive development in his legal case. And, yes, the courts provide another avenue to fight the Administration.  

[The picture is from the linked story, Photojournalist witnesses Venezuelan migrants' arrival in El Salvador: '"They had no idea what was coming"]

The term "synecdoche" is a figure of speech where the part represents the whole. Garcia is a type of synecdoche of the Administration's detention and expulsion program. 

Michelle Goldberg reminds us about someone else:

Andry Hernández Romero, a gay makeup artist from Venezuela, sent to rot in El Salvador because the Trump administration claimed his tattoos link him to the Venezuelan gang Tren de Aragua. 

There are many, more more, the stereotypical "thugs" tossed about repeatedly, not reflected in the people picked up:

Bloomberg reported, around 90 percent of the migrants sent to CECOT have no criminal records aside from immigration or traffic violations.

The usage of the Alien Enemies Act is patently illegal since we are not at war with the people involved, nor are any other requirements for usage met. One thing that stood out for me, however, was a passage about "time allowed to settle affairs and depart" for "not chargeable with actual hostility, or other crime against the public safety." 

The Administration, however, aims to use speed, in part to avoid court review. The Supreme Court has long recognized that even "illegal aliens" have some due process rights:

It is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.

(Citing cases back to 1903. Drawing a line between those here and those who are attempting to enter.) 

[Another symbolic case involved a person supporting autism. OTOH, RFK Jr. is not a big fan of autistic children.]

Aaron Reichlin-Melnick, Senior Fellow at the American Immigration Council, on Bluesky flagged one technique:

There are a lot of cases where ICE has been accused of pressuring parents to agree to be deported alongside their children without giving them anywhere near enough time to make that decision or consult with other family members first. This seems like exactly one of those cases.

The case was another symbol, involving a two-year-old American citizen. When a Trump-appointed judge, who uses "Gulf of America," is concerned, it's a red flag.  

Again, there are many other cases involving children, citizens, and noncitizens. One article:

Trump Has Now Deported Multiple U.S. Citizen Children With Cancer

Appalling but, by now, par for the course. We knew Trump 2.0 would be horrible. He's just going a bit faster than expected. This is why people are fighting. 

To toss it in, there are also lots of symbols of the corruption of this Administration, including numerous corrupt pardons. The article links to a more general story.*

The latest:

President Trump on Wednesday pardoned a Florida health care executive whose mother played a role in trying to expose the contents of Ashley Biden’s diary.

The pardon of the executive, Paul Walczak, was signed privately and posted on the Justice Department’s website on Friday. It came less than two weeks after he was sentenced to 18 months in prison and ordered to pay nearly $4.4 million in restitution, for tax crimes that prosecutors said were used to finance a lavish lifestyle, including the purchase of a yacht.

His mother was a significant Trump donor. Came the same day for another pardon. Michele Fiore was convicted in connection with a fraud connected to collecting "donations to build a statue memorializing a police officer who had been killed while on duty." The level of corruption is so blatant that it is laughable, in a dark humor sort of way.

Again, people can't keep up with all of these things. I respect those who manage to keep track of different categories, perhaps with the help of color-coordinated spreadsheets.

Such is the value of symbols. 

Meanwhile, Senator Ossoff is right. Trump deserves to be impeached. Republicans have the power to stop him. They refuse to do so, even while a few make some noises about how he goes too far. The party jumped the shark. 

==

* The NYT cannot help a "both sides" in which Biden is criticized for not using normal pardon procedures, along with Trump. This again is applied in a bullshit fashion:

Both Mr. Trump and former President Joseph R. Biden Jr. were criticized for ignoring the screening and guidelines of the Justice Department’s Office of the Pardon Attorney in their clemency grants. Clemency experts objected to Mr. Biden’s far-reaching pardons of his son Hunter and other family members, and to Mr. Trump’s sweeping grant of clemency to all of the nearly 1,600 people charged in connection with the Jan. 6 attack on the Capitol.

Yeah, not quite the same, including Trump's ongoing usage of the pardon power to help his cronies. Biden, for good reason, at the end of his term, provides pardons to a few family members to protect them. Trump does a helluva lot more, and it's only a few months in.  

Perspective ... it's a thing.  

A Biden-appointed pardon attorney was fired, allegedly arising from a refusal to recommend that Mel Gibson get his gun rights back. Here's a recent statement she gave to Congress. 

Dems Have a Good Day

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

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

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

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

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

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

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

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

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

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

It still was a good day. 

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. 

NYC Non-Citizens Voting Law Struck Down

New York City passed a law in December 2021 allowing non-citizens to vote. I talked more about the general issue after D.C. passed a similar law. 

(My then outgoing council representative, a Democrat, scare tacticked allowing noncitizens to vote. Mayor Adams was wary but let it be. So much time has passed that we are on a third local rep, this time a Republican, which just still seems wrong.) 

Voting and citizenship go together like a horse and carriage, to quote the theme song of Married ... with Children. I do not say that ironically in this context. 

Many states over our history -- until at least the 1920s -- allowed at least some noncitizens to vote. Current federal law bans voting in federal elections. Only a few localities allow them to vote in local elections. 

Some Republicans, generally the sorts who don't like voting rights, challenged the law on state constitutional grounds. New York City Council members include lawyers and they did their due diligence, I suppose, before passing the law.  

Looking at the law, it seemed to me to be valid. The New York Court of Appeals, the highest state court, disagreed 6-1. They are in charge. I still think the dissent has the best argument. Shrugs. 

Local Law 11 would vastly expand the franchise in New York City, a locality that is home to approximately 3.1 million immigrants, of whom 27 percent (over 800,000) are lawful permanent residents or hold another form of lawful status.[FN15] It provides a means for this significant part of the City's population to have a voice in their government.

The state constitution says that citizens have the right to vote. This does not necessarily mean that is the ceiling. It very well might be the floor. The discretion given to localities over a choice of self-government also warrants the text to be interpreted liberally. 

The fear of noncitizens voting is exaggerated, both as to some significant number doing so illegally or doing so anyway. The law does not apply to so-called "illegals," who are here without legal authorization. 

A large segment of our city is disenfranchised regarding those who govern them. It is appropriate to allow them to vote. I think the state constitution probably can be reasonably interpreted to allow it.

A specter is given in some localities allowing 13-year-olds to vote. The raising of slippery slope arguments generally has problems no matter who does it. Yes, only up to a point. Nonetheless, I hold to that.

Why would a locality do that? I can very well see a locality giving sixteen and seventeen-year-olds the right to vote in certain elections. I think the line at 18 makes sense. But, a lower line is not absurd.  

Any line under that age is unlikely. I will give you a possibility. Maybe, a locality will let students vote in a school election, perhaps for a student representative on a school board. Or, some limited proposal, silly (local bird) or more serious (school uniforms?) might warrant giving under-18s the right to vote. 

A locality might perhaps give those under 18 the right to vote in a limited fashion to prepare them for voting completely as an adult. You can formulate various scenarios as to why it is rational for minors to vote. 

I find this result unfortunate.