SCOTUS Watch: Opinions/Orders

Orders

The Order List had some notable content, including multiple grants and no grant in the E.J. Carroll case. Maybe, just maybe, Trump will have to pay up for his sexual assault.

Gorsuch (with Alito and Thomas) returns to his concern about health workers not being able to obtain an exemption from vaccine mandates. NY, among other things, argues it is a bad "vehicle" for review. 

Thomas (with Gorsuch) wants to re-examine NYT v. Sullivan, citing original understanding (the case involves Alan Dershowitz suing CNN). If they want to quote original understanding, quite a few modern-day First Amendment cases should be decided the other way. A lot more limits were allowed back then. 

Sotomayor, for the liberals, dissented in a qualified immunity case involving a prisoner alleging mistreatment. There is a good originalist argument, ignored by conservative justices, that juries should have wide discretion to find government officials liable for wrongdoing. The Founding generation thought juries were the "palladium of liberty," even more than judges, who were creatures of the state.  

Each Trump nominee did not take part in a case without saying why. 

There should be another "clean-up" order, with perhaps more recusals, later in the week.

Opinions 

Barrett (with Roberts + the liberals) upholds a rule regarding mail-in ballots. Rick Hasen argues that "text,  history, and longstanding practice going back to the Civil War" back her up. A somewhat unhinged Alito opinion, however, still received four votes. 

Kagan continues the expansion of the reach of the Fourth Amendment to "geofence warrants," regarding the location of cellphone users. Alito, Thomas, and Barrett dissented. Gorsuch concurs but tosses in some cosplay about original understanding.

[Orin Kerr of Volokh Conspiracy is one resource for this topic.]

Roberts had the big two for the day involving agencies. The Federal Reserve, 5-4, can retain its "for cause" removal rules. The dissenters partially complain about the reach of the opinion, which broadly rules to bring clarity to the question.

(People are arguing that Roberts/Kavanaugh selectively exempt the Federal Reserve "to protect their stock portfolios." The special exemption is dubious. OTOH, various agencies regulate financial matters. They also affect stock portfolios.)

Not so for other agencies, overturning long practice (at least from the late 19th Century) and precedent (from the 1930s). The whole thing is bullshit, 6-3, Sotomayor (Kagan usually handles this issue) with the dissenting opinion for the liberals. 

(Her dissent, which she read from the bench, is very good. We should have audio/video.) 

The First Congress split various ways regarding the proper constitutional and policy rules for removal. It is a political question that should be left to congressional discretion. The dissent is correct that the majority forgets its "place." The voters need to secure a new Congress that reminds them. 

The 6-3 majority puts its thumb on one side. Perhaps, it is an ironic move to honor the 250th Anniversary of the Declaration of Independence (tyrannical king). 

Some more opinions tomorrow.

ETA: A discussion about them. 

SCOTUS Watch

We are focused on Supreme Court things lately. The regular term will end soon, and there will be fewer.

The Order List again had a few interesting tidbits, including granting a case to determine if states need twelve-person juries for felony cases. The different policies regarding juries have led the Supreme Court not to nationalize all the federal rules (see, e.g., grand juries) there yet. 

They did not (without comment) take a challenge involving a now nearly 100-year-old federal judge who has been taken off regular service. It is a bit of a conservative cause celebre in some quarters. Others aren't too excited. They figure Congress set forth guidelines that allow courts of appeal to regulate such things, and it wasn't unjustly applied here. 

Jackson (with reason) and Alito (not) recused without saying why. Alito (with Thomas) wanted to take a criminal justice case. Alito wanted to take a case involving schoolchildren:

When she sought approval to hang flyers at school to advertise club meetups, school administrators would not approve the flyers because they contained pictures of students with “Defund Planned Parenthood” placards. 

Alito and various conservatives are more open to the federal courts intervening when conservative causes are involved. Meanwhile, the justices are preparing for the final burst of opinions, many of the twenty or so left "hot button" issues. 

There is only one (Thursday) opinion day scheduled so far. Granting another next Thursday is a gimmee; that is still not enough. At least two more should be necessary. Having one tomorrow would have been logical. We shall see how things go.  

Meanwhile, like usual, the Order List has some notable matters, even if nothing earth-shattering. 

===

ETA: I talk about the opinions handed down later in the week, including marijuana/guns, here. 

John Quincy Adams

Crawford is a musician and podcaster. 

I'm not familiar with him in either case. I am enjoying this book, which focuses on his antislavery efforts, especially as a House member. It's a book geared to the general reader with some neat drawings.

Adams hated slavery, but like many people of the day, didn't care for abolitionists. Slavery was bad, but we were stuck with it.

Early on, when he was a senator, he voted against a limit on slavery. As a diplomat and executive official, national sovereignty was more important than opposing slavery. For instance, limiting the British power to search American ships on the high seas.

Plus, abolitionists, in his view, exaggerated how bad slaves had it. They seemed unreasonable extremists.

Adams became a hero of the antislavery movement after extremists on the slavery side went after the freedom of speech. The "gag rule" arose after abolitionists supposedly started to get a bit too pushy for their own good, flooding the mails and Congress with antislavery materials and petitions. 

Give an inch and all that.

Adams noted that not formally accepting petitions broadly endangered First Amendment rights, showing how suppression of liberty tends to spread. For instance, abolitionists were motivated largely by their religious beliefs. Religious liberty was at stake.

It also shows how change happens over time. Abolition seemed hopeless in the 1820s and 1830s.

Adams, with some foresight, noted in his diary that the only way it seemed possible was if the country broke apart and/or went to war. Congress then might have the power to abolish slavery as a war measure.

He died in 1848, though he lived long enough to see the Mexican War, which helped introduce the final chapter (chapters?) that led to that war. 

Good book overall. 

SCOTUS Order List

The weekly Order List had some interesting bits.

The justices decided the appeals court wrongly decided on procedural grounds a lawsuit involving the free speech rights of immigration judges (not Art. III judges). Thomas (with Barrett) also disagreed on the merits. Free speech fails, for now. 

[The backstory is that the administrative process was broken because of Trump's obstructionism. Helped b by the court conservatives. The lower court tried a workaround and was called out.] 

The justices, following standard practices since at least the 1970s, rejected even accepting a "bill of complaint" involving a dispute among states. 

Thomas (with Alito) took their usual stance (reasonable) that they should at least examine the merits. They also added some right-wing comments on the merits of a dispute involving undocumented people having driver's licenses. 

Kavanaugh would have taken a dispute involving arbitration (New York Football Giants v. Brian Flores). He didn't comment on why. 

Alito and Thomas would have summarily reversed a lower court opinion involving excessive force and the Fourth Amendment. They cited a lower court opinion they "essentially" agreed with. 

Alito (no comment), Kagan, and Jackson (referencing ethical guidelines) did not take part in deciding three cases.  I continue to prefer the latter approach. 

Finally, in a "to be continued" sort of way, a lower court continued to reject a redistricting map, holding it is racially discriminatory. The Supreme Court, with the liberals dissenting, sent it back. 

It is likely to come back.  

==

Meanwhile, this is an interesting discussion of the Supreme Court's relation with social media, including suggestions on how it can dip its toes in.

ETA/Opinions: 

Barrett, for the conservatives, ruled against two "compassionate release" claims. Sotomayor (with Kagan) concurred on limited grounds in one case, dissented in the other. Jackson dissented in both.

Kavanaugh, it being one of his concerns, wrote a 5-4 opinion supporting a claim alleging racial discrimination in jury selection. Roberts joined, as did the liberals. Gorsuch dissented for the rest.

Gorsuch wrote a brief (less than eight pages) and unanimous arbitration opinion.  

DALLAS v. STANGLIN

Stanglin was released on April 3, so was part of a list of cases on a website that provides day-by-day summaries. The case involves a law that "authorizes the licensing of 'Class E' dancehalls, restricting admission thereto to persons between the ages of 14 and 18 and limiting their hours of operation."*

I have written various posts on this blog dealing with privacy-related cases, particularly involving birth control and abortion. This case came up a couple of times, including a review of a book on dance. 

The challenger ended his oral argument in this case on a privacy note, though freedom of association was a key issue. The lower court cited precedent to show that "social" association is included there.** 

The right to freely associate is not limited to "political" assemblies, but includes those that "pertain to the social, legal, and economic benefit of our citizens."

The Supreme Court overturned. It cited a recent case limiting "intimate" association to small groups (the dance halls had hundreds of people). The case, the majority by Chief Justice Rehnquist argued, also did not expand "expressive" association to social dancing. 

Rehnquist applied "social" narrowly to mean "nothing more than that the right of expressive association extends to groups organized to engage in speech that does not pertain directly to politics." That's dubious. 

Justice Stevens (with Blackmun) agreed that the law was legitimate while noting in an opinion concurring in judgment that:

the opportunity to make friends and enjoy the company of other people — in a dance hall or elsewhere — is an aspect of liberty protected by the Fourteenth Amendment.

He did not provide an analysis for this conclusion, but it is correct. We have a right to marry, for instance, and that entails meeting people in various contexts on the road to marriage. 

(I'll toss in that even non-expressive athletic dancing is important to personal wellness to a degree that it is not a trivial aspect of personal freedom.)

The opinion is partially concerned with limits. Anything -- we saw this with the conversion therapy case -- might involve expression. 

We express ourselves in some fashion by basically anything we do. Dance halls are also not the first thing you think about regarding the "right to association." 

Nonetheless, people go to dance halls quite literally to associate. They meet people and interact. They express themselves. Dancing, including "social" dancing, is a means of expression. The importance of dances in Jane Austin novels comes to mind. 

A social gathering at a restaurant is also not what many people would associate (ha) with the First Amendment. But it has some of that character. We meet and talk. We associate. We share ideas.  

I found it troubling years ago, and still do, that Brennan and Marshall just went along with the open-ended language of the majority opinion. The concurrence provided a way to underline that there were constitutional interests involved. 

They probably thought the case was not worth worrying about. Easy cases, if this is one, however, leave open the possibility of troublingly open-ended legal conclusions. The ability, if sometimes taken too far, to regulate minors was a way to uphold the law.

Likewise, the regulation of business establishments, including those with a large number of people, might warrant freer rein. The law did not deny teenagers the ability to dance with adults. It regulated a certain type of for-profit establishment of a certain size. 

Stevens argues that this law, if anything, furthered the constitutional rights that the class of teenagers had. No need to say they have none (other than some general right against arbitrary treatment) in this context. 

A question by Rehnquist suggests a red flag. Could the government (when this could be criminalized) ban two men dancing to advance anti-same sex sodomy laws? Limits of gay bars, including bars with large clientele, had First Amendment and right to privacy implications. Social activity = rights.

Social dancing should not be treated on the same level of constitutional scrutiny as the regulation of eyewear and other "rational basis" cases. The case is a troubling overreach and unnecessarily so. 

Justice Brennan was careful not to even let cases involving alleged child pornography (e.g., Osbourne v. Ohio) be used to limit the right of privacy and other constitutional rights. His silence here was dubious. 

 ==

* The enterprise appears to have arisen from another daily SCOTUS history project, which provides single moments involving various subjects. It always not case specific. Some key cases are not chosen.

I comment there now. A recent comment on a school prayer case received more than usual attention. I stopped replying since I think I said enough. 

** Griswold v. Connecticut cited free speech and freedom of association cases to help show how privacy is necessary to protect constitutional rights. Multiple cases also protect, if to a somewhat more limited degree, the constitutional rights of minors. 

SCOTUS Watch

More Trump News 

Steve Vladeck in his weekly SCOTUS Substack:

I wanted to use today’s “Long Read” to bring folks up to speed on the series of ongoing cases involving efforts by the Department of Homeland Security to revoke “Temporary Protected Status” (TPS) on a country-by-country basis for hundreds of thousands of immigrants from Haiti, Syria, Venezuela, and elsewhere—two of which have reached the Supreme Court through the Trump administration’s 33rd and 34th emergency applications. 

(He also references the racism involved.) 

SCOTUS took the matter for review later in the day. The oral argument will be in late April. 

Eugenio Suárez’s hit in the top of the ninth later in the week provided the deciding run to allow Venezuela to win the World Baseball Classic over the United States. He earlier spoke out about how immigrant baseball players worry about current policies. He noted a family member lost TPS status. 

Another Execution 

It also rejected a final appeal in a capital case.

Michael Lee King, 54, is scheduled to receive a three-drug injection starting at 6 p.m. at Florida State Prison near Starke. King was sentenced to death in 2009 after being convicted of first-degree murder, sexual battery, and kidnapping.

(The death sentence is not patently outrageous. The system can be arbitrary and overall, not helpful to the public welfare, without each and every case being similarly bad.) 

Florida apparently is moving on to executing one or more people who haven't been on death row for over twenty years. The final appeal basically addressed red flags regarding the state's lethal injection procedures. 

Sotomayor recently referenced the matter. She didn't comment this time, but there is a comparable reason why a SCOTUS stay of execution is questionable without erasing the problems with the procedures.  

Chief Justice Roberts Speaks Out

"The problem sometimes is that the criticism can move from a focus on legal analysis to personalities. And you see from all over, I mean, not just any one political perspective on it, that it's more directed in a personal way, and that, frankly, can be actually quite dangerous," Roberts said.

I saw people respond with an expletive. It's understandable. First, it sounds like he is upset about the justices being criticized. Second, the conservative justices were hoisted on their own petard by enabling Trump. And, yes, his criticism is specifically at issue. 

Trump repeatedly, in personal ways, attacked judges for ruling against him. The problem also arose during his civil and criminal trials. Judges repeatedly criticized him or even sanctioned him for crossing the line. He is back to using such rhetoric to attack judges for the 2020 elections. We know how that went. 

There has been a dangerous uptick in harassment of judges. People send pizzas to their homes in the name of a murdered son of a judge. Judges get harassing phone calls. A few judges in the past were physically attacked or even killed. 

Strong criticism is part of the program. Some will be fair, some unfair. But, especially when people like Trump (or other members of the government) attack judges personally, sometimes targeting other people along the way (family members, prosecutors, etc.), a line begins to be crossed. The unjust delegitimizing of the court system alone is a problem. It can get worse. 

A new article flagged some lower court judges addressing the problem. It notes that the pizza thing might have, in some sense, been a foreign job. 

I didn't catch that aspect before. It should be carefully checked out. It surely would not be the only attempt at foreign interference with our institutions. 

Another way to look at this is to examine a major reason lower court judges have received some strong criticism. Conservative justices have, at times, with little or no explanation, overturned their rulings. 

This effectively is a big "fu" to lower court judges, who regularly are just doing their jobs, provided extended explanations when doing so. The judges come off as "judicial activists" who deserve strong criticism. As the article notes, "thanks a lot, John."

When you flag this, some people think you are just making it about Trump. He obviously has significant influence and has used it in unhinged ways. 

But it isn't just him. So "what about Schumer" won't be much of a comeback. Put aside his comments and influence simply are not comparable. If you can find something bad liberals say, fine. 

We need to protect our institutions. This should not be a partisan issue. Too often, it seems that it is. 

Justice O'Connor

There was a special event on Thursday to honor Justice O'Connor. The Supreme Court website provided a rare livestream video link. 

There were two parts. There was a bar event, and then they had a special court session. The livestream only covered the first part. A ceremonial occasion would be an ideal situation to provide SCOTUS video. 

Some documentary materials were supplied, including an extended biographic statement. O'Connor was a moderate conservative from another age. 

Her role in Bush v. Gore for some is disqualifying. But she's no Justice Alito. She was, as noted, a reasonable conservative who carefully and pragmatically (influenced by her legislative experience) applied the law. She also supported civics education, making it her focus after leaving the Court.  

Opinions

The justices were back for opinions and a conference on Friday. There will be oral arguments next week.

They handed down a single opinion, by Kagan, which unanimously allowed someone to sue to protect his free speech rights. The person feared future prosecution. The case is not about damages.

Kagan handles things, tossing in some Kagan-esque colloquial "let's chat about this" phrasings (e.g., "For anyone who has followed along this far") quickly in a Roberts Court special. It's a good, limited opinion. 

(Robert Court specials unite the justices, often with short opinions, by opinions of limited reach that avoid divisive questions. Sometimes, they clearly paper over certain disputes, the seams at times fairly blatant.) 

Other Stuff 

The Court also dropped a housekeeping order. 

They will hear oral arguments next week after dropping an Order List on Monday. 

Shadow Docket News

Immigration judges are not Art. III judges. They do not have life tenure and have less independence. People in front of them have fewer rights. 

They challenged a limit on speaking engagements. The Trump Administration brought a request for the Supreme Court to intervene, even though the win was limited and only involved sending things back for more factfinding. 

In a limited bit of sanity on the shadow docket (sorry, SCOTUSblog; not the "interim" docket), the Supreme Court for now determined not to do so. It shouldn't be that notable, especially given the factual complexities involved. More at that link. 

But that's where we are at. The Shadow Docket Act tries to address the situation. It would require an explanation, and on the on-the-record vote count in certain cases. Not across the board. 

Justice Alito would likely find that demand an unconstitutional invasion of the separation of powers. OTOH, Art. III allows Congress to regulate the Supreme Court's appellate jurisdiction. The bill specifically does not cover original jurisdiction (interstate disputes over water rights, etc.). 

It is a "message bill" at the moment and fine on that level. Democrats (with Republicans willing to join them) should put forth markers that underline their long-term goals. A bill like this provides the neutral reforms that have wider support. 

Meanwhile, there are no more scheduled events for the justices until early January, but miscellaneous orders might pop up before then. Oh joy! 

Mark Bray and Antifa: The Anti-Fascist Handbook

Mark Bray is an academic, historian, and activist. He was an organizer of Occupy Wall Street. 

He wrote the title book in 2017. I checked out a paperback revised version published in 2022 with a new turgid introduction by Joshua Clover (another professor and historian). The book isn't as bad, but yes, I skipped to the short "five historical lessons for anti-fascists."

1. Fascist revolutions have never succeeded. Fascists gained power legally.
2. Many anti-fascist leaders and theorists assumed fascism was simply a variant of traditional counterrevolutionary politics and didn't take it seriously until it was too late.
3. Socialist and communist leadership [might we add Democratic leadership?] was often slower to assess the threat than the rank-and-file membership. 
4. Fascism steals from left ideology, strategy, imagery, and culture (National SOCIALIST Party, etc.).
5. It doesn't take many fascists to make fascists. [Often, they are helped by more mainstream types who feel threatened.]

Mark Bray recently took his family to Spain after death threats led him to feel unsafe. Trump is big on fighting "antifa," which some argue means he is for fascism. 

Fair. 

It's a kind of politics or activity of radical opposition to the far-right that doesn't have any qualms about physically disrupting far-right demonstrations.

OTOH, the book argues that antifa (as compared to simple "antifascism") is more than the opposition of antifascism. It involves various organizational principles that many against fascism will not support. For instance, they have a limited version of free speech, supporting silencing fascists.

[Fascism is] a form of political behavior marked by obsessive pre-occupation with community decline, humiliation, or victimhood and by compensatory cults of unity, energy, and purity, in which a mass-based party of committed nationalist militants, working in uneasy but effective collaboration with traditional elites, abandons democratic liberties and pursues with redemptive violence and without ethical or legal restraints goals of internal cleansing and external expansion.

(Quoting Robert O. Paxton, The Anatomy of Fascism.) 

Mary Anne Franks, in her books, argues that we have a "cult" of free speech in this country. For instance, we support the so-called "marketplace of ideas," which is sort of a mythical ideal in practice. 

At least, we don't have a laissez-faire marketplace. Liberal free speech supporters recognize the need to heavily regulate the marketplace. Thus, the metaphor is either somewhat ironic or far from libertarian.  

Bray also notes that many people, including prisoners, do not have true free speech rights. Also, the First Amendment limits the government. Private parties play a significant role in controlling knowledge. 

Prisoners have limited free speech rights. For instance, they receive mail, usually have access to a library and other literature, and if you want, I will support their right to vote. But yes, prisoners have fewer rights. 

And, granted, there are other limits of speech (e.g., copyright), but blatant ideological limits are problematic. I also acknowledge that limits have some "political" content. Blatantly ideological limits are notably in a special category.  

The usual arguments that both Turning Point USA and Antifa groups should enjoy free speech are well-known. Bray can dismiss line-drawing arguments, but then he speaks of fascism involving the "patriarchy," and I wonder about where the Catholic Church is placed. After all, ACT UP interrupted their masses.

Fascism is significantly an emotional ideology. You are not going to convince many fascists to change their minds with rational debate. Charlie Kirk was as much of a troll and someone who silenced others as someone who truly used debate to convince people. 

I understand the justification of trying to silence blatant fascists. Free speech is a great value. But it isn't the only value we have. Still, it is a dangerous move. It ultimately turns on raw power. What stops fascists from using the same tactic? Power. 

(Antifa will defend their tactics based on necessity. So will fascists. Maybe one side is right, but it's tough.) 

The new introduction bitterly laughs at the anti-communism justification by fascists. It notes that these days (differently, I would add, than in the early decades of the 20th Century) there are nearly no communists in this country. I might say there are quite a few "antifa" in the way Trump suggests. 

The labels are variable. So, some people are appalled that Zohran Mamdani -- a self-labeled democratic socialist -- has a good chance of being the mayor of New York City. Democratic leadership endorsed Andrew Cuomo (His official name is Andrew f-ing Cuomo) because of the specter of the Zohran. Or, they still do not want to endorse Mamdani. 

There is a stronger presence of "socialists" in this country. I don't think we should treat them as a specter. They support many good things. They have the energy and passion we need in these times. They might be wrong in various cases. So be it. 

(Plus, the word is so variable. Lots of things we generally accept as great, including Social Security, were once denounced as a form of socialism.) 

The anti-fascist movement today is akin to those who support black lives matter and other such groups. There is general support for causes that are valid and that should be uncontroversial. Some activists and true believers will be purists. That is the usual thing.

There is a tiny subset that supports the use of violence and law-breaking in certain cases. We saw this in Black Lives Matter protests. And, probably, a few of these people (at least) were outside instigators. 

I generally am quite wary -- at least -- at such tactics. If you raised that sentiment in some places, well, you might be treated as if you were a racist. Violence might, over the span of history, sometimes appear necessary. Who are we to talk (1776), after all?

Still, it often is counterproductive. It can also hurt innocents. For instance, during protests, some vandalism harmed black owned businesses. 

I am open to what Mark Bray has to say, but I am not his kind of anti-fascist. I despise fascism, though. 

Odds and Ends: Peace, Judges, and Sex

I discuss the winner of the Nobel Peace Prize.

There are three types of judges that are elected by New York City voters, rather than appointed by the mayor or governor. 

Supreme Court justices oversee state trial courts for felony criminal cases and some types of civil cases, including ones that involve large amounts of money. 

Civil Court judges in the city preside over consumer debt, landlord-tenant disputes and several other kinds of civil cases. 

Surrogates’ Court judges handle cases related to deceased people’s wills and estates.

I think judicial elections are dumb, partially since the average voter knows nearly nothing about the people on the ballot here. Here's a helpful explainer with links for information.

I still think they are dumb.

This is a book (over 500 pages) from early 2017, so it can do for an update. Then again, it ends with a reminder that the law and social norms repeatedly changed and could change again, especially with new SCOTUS personnel. 

It starts from ancient times. A quick read overall. It argues that morals legislation tends to overlap with religion, so it is a separation of church and state issue. As Justice Brennan realized with obscenity:

Like the proscription of abortions, the effort to suppress obscenity is predicated on unprovable, although strongly held, assumptions about human behavior, morality, sex, and religion.

The final sections cover sexual speech, reproductive liberty, and gay rights. It is not totally comprehensive (it should at least reference Mormonism and polygamy), but it covers a lot of ground. Good book overall. My copy had no cover. 

95 House Dems, Including Trans Rep McBride, Vote To "Honor The Legacy" Of Charlie Kirk

The criticism of Kirk, however, has been met by an equally aggressive counteroffensive on the right: journalists and other citizens have lost jobs for refusing to endorse the sanitized narrative of his life, and even Jimmy Kimmel was fired after daring to mention Kirk and Republicans in anything other than a positive light.

Erin Reed reports on a House resolution about "a courageous American patriot" who is a "fierce defender of the American founding and its timeless principles of life, liberty, limited government, and individual responsibility." He did so with "honor, courage, and respect" and was a "model" for Americans. This is bullshit. 

Erin Reed notes:

“Charlie Kirk was a fierce defender of the American founding and its timeless principles of life, liberty, limited government, and individual responsibility,” the resolution reads—conveniently eliding his relentless campaign against the liberties of LGBTQ+ people. It praises him for engaging in “respectful, civil discourse,” even though he once said Black pilots made him wonder if they were “qualified” and called transgender people an “abomination unto God.” And it claims he “worked tirelessly to promote unity,” despite his calls to execute President Biden for treason.

Ninety-five Democrats voted for this claptrap, while thirty-eight voted present, and twenty-two didn't vote. Only 58 simply voted "no."  

215 Republicans voted "yea" with four not voting. It was clearly an important vote for them. 

Many noted, in the aftermath of McBride’s vote, that Kirk had personally attacked her—calling her a “man” and claiming she wanted “to force all of society to change its laws to indulge [her] sexual fetish,” hardly the “respectful and civil discourse” the resolution insisted he embodied.

Rep. Sarah McBride, the only openly trans member of Congress, who Kirk once called a man, voted yes. I understand her carefully threading the needle, including as the sole representative of the state of Delaware. But really? 

The resolution has various mundane things against violence and so forth, but it also glorifies Charlie Kirk with comments such as:

Honors the life, leadership, and legacy of Charlie Kirk, whose steadfast dedication to the Constitution, civil discourse, and Biblical truth inspired a generation to cherish and defend the blessings of liberty.

I don't think it is appropriate for Democrats to sign on to this resolution. It perpetuates the glorification of Charlie Kirk, which is a lie. 

One really disappointing "yea" vote here is Rep. Raskin, usually a sane, sensible person who doesn't hold back, his opposition to injustice. What the hell are you doing? What is his excuse?

My representative, who is a strong Trump opponent but has his moments of being a tool, didn't vote. Brave man! The House Minority Leader, who doesn't want to endorse Zohran Mamdani for mayor of New York City, voted yes. Fuck you. I'm so tired of that guy.

The Republicans are making this guy a martyr. This resolution was passed after Jimmy Kimmel was silenced for criticizing the response to his death, particularly Trump.  Yes, the FCC shit got even Ted Cruz using words like "mafioso." Not that he would actually do anything serious about it.   

Cruz et. al. cheered on silencing people for criticism. This is in the spirit of the "model" the people's House supported. A simple resolution is mourning of his death, and opposing politically related violence would be understandable. Selective, for sure, but understandable. This resolution glorified him.  

What message is the Democrats sending by not having the guts (except for a quarter of them) to simply vote against this thing? 45% voted for it. Do better. 

ETA: NYT has an interview with Charlie Kirk's widow entitled "For Erika Kirk, a Husband’s Life Cut Short by Violence He Seemed to Foresee." 

More promotion of the idea that Kirk is a martyr,  almost a Jesus-like figure. The subtitle notes "she sees divine work in his death." Beyond parody. 

It is unsuprising that people are trying to provide some divine meaning to his death. People do that. The usage of such headlines, however, adds to the glorification. OTOH, guess NYT won't get cancelled. 

I don't recall the murder of the Minnesota legislator and her husband (and their dog, plus the shooting of two others) getting this much coverage. 

David Joseph Pittman Execution

Pittman and his wife, Marie, were going through a divorce in May 1990, when Pittman went to the Polk County home of her parents, Clarence and Barbara Knowles, officials said. Pittman fatally stabbed the couple, as well as their younger [adult] daughter, Bonnie. He then set fire to the house and stole Bonnie Knowles’ car, which he also set on fire, investigators said.

Another Florida execution, another horrible set of facts. I can understand the death sentence. It was not just bare barbarism. 

On Constitution Day [My Substack discussion], the day the Constitution was signed, we can still point to various constitutional problems. 

Thirty-five years is too long to wait between arrest and execution. Justices no longer appear to care, but I do. Justice Breyer explains why:

First, a lengthy delay in and of itself is especially cruel because it “subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement.” Second, lengthy delay undermines the death penalty’s penological rationale. [Citations removed.]

There is also clear evidence that Pittman is intellectually disabled. The Florida Supreme Court didn't honor precedent, so relief was procedurally blocked. That is another Eighth Amendment problem.

Contrary to Prof. Reasonable Conservative's assurances, the Supreme Court is still acting in the shadows, including on the death penalty docket. The final decision allowing his execution was unexplained. The liberals also did not explain themselves. 

Florida, relatively speaking, is busy executing people on their death row for a long period of time. The net value to the public welfare is open to debate. 

His dying words included a proclamation of innocence. That is absurd. He still shouldn't have been executed. The death penalty should end. 

There will now be a push to execute the murderer of Charlie Kirk. That too is not how we will address the political violence that poisons our times. 

Censorship won't do it either. 

SCOTUS Watch

2025 Schedule

It is that time of the summer -- time to start thinking about the next Supreme Court term. 

After a longer delay than usual, apparently, the opening two oral argument schedules have been posted. It involves some important issues. There is also a new look.

The website is slowly being improved. One goal of mine is for orders not to just be screenshots. They should have links to the docket pages. 

Also, again, for some reason, they did not post permanent screenshots of pages linked in opinions. They did in the past. The page is empty now.

Meanwhile, AOL is ending dial-up. 

On the Shadow Docket

The Supreme Court on Thursday turned down a request from a tech industry group to temporarily bar Mississippi from enforcing a state law that restricts access by young people to social media. In a brief, unsigned order, the justices allowed the state to continue to enforce the law against major social media sites, including Facebook, Instagram, Snapchat, X, Reddit, and YouTube, while litigation continues in the lower courts.

Kavanaugh decided to drop a concurrence noting the law is likely unconstitutional, but (citing a few pages from a brief), holding up the law was not suitable. 

Steve Vladeck on Bluesky called out SCOTUS for explaining themselves, making it seem they are applying the rules arbitrarily. Kavanaugh sometimes explaining himself does not help much.

A liberal professor sees nothing wrong with the law. The major concern with the order is the inconsistency of the shadow docket. Or whatever you want to call it.

There are various possible problems with such laws. Sometimes, the age software is a problem for adults. 

The state sometimes includes speech that is fit for minors among the blocked material, including LGBTQ and safe sex material. Some comparable laws have been used against drag. 

The devil is in the details. The bottom line is that the Supreme Court should be less shadowy. 

Summer Orders

The second summer order list will be released on Monday. It is likely to be nothing much. 

If it isn't, I will add more. [Nothing of note.]

Skydance and Paramount Merger

The sole Democratic appointee left at the FCC (there are two vacancies, one of a myriad of examples) is opposing the merger of Skydance Media and CBS parent company Paramount. This merger has raised many red flags. 

She called Skydance “cowardly” for agreeing to adopt “never-before-seen controls over newsroom decisions and editorial content” that she said violate the First Amendment.

Lots of people think the merger has something to do with Stephen Colbert not being resigned next year. Senator Wyden raised various red flags. Paramount decided to sacrifice the First Amendment to help things along. 

Let's not forget about that. They had a settlement in a frivolous Trump lawsuit (lawfare is okay if Trump does it) involving typical news editing. This helped feed the conspiracy theorists/crybabies that the media is anti-Trump. The link shows that that was not the only such "business decision" that the media has made to help Trump. 

On Tuesday, as part of the review process, Skydance committed to undergo “a comprehensive review of CBS” after the completion of the transaction and to create an ombudsman role for at least two years to handle complaints of bias at the network. The company also pledged to eliminate diversity, equity, and inclusion (DEI) initiatives, an action Carr has said is a prerequisite for any merger approval.

This paragraph from the Washington Post article linked above caught my eye. Brendan Carr, who was first appointed by Trump 1.0, is now the leader of the FCC. His m.o. is suggested by his recent potshot at Stephen Colbert. Going after DEI, a Trump bugaboo, is more Trumpian bullshit. 

DEI means "diversity, equity, and inclusion." Nothing is wrong with those things. The attacks on certain DEI initiatives are "anti-woke" bullshit. It also allows the Trump Administration to do things like control universities. 

The NPR article linked above provides some scary details involving Carr's efforts to interfere with the news. The ultimate owners of newspapers and television news programs are not stepping up against that. When Rupert Murdoch is the hero (low bar) of the day, you are in trouble.

Anna Gomez, the Democrat appointed FCC commissioner, is due to serve her term into next year. The Federal Communications Commission is allegedly an independent agency. Recent Supreme Court shadow docket orders show the limits of that. Trump has two more vacancies to fill. The "rules" say one of them must be a non-Republican. 

Let's end with a discussion of what should be going on here. The settlements should not have been made. They should have been deemed against the public interest as a violation of freedom of the press. 

Financial regulation should be on guard about this merger. The FCC should also oppose it. At the very least, the FCC should not be talking about "DEI" (except to praise it) or corruptly interfering with news decisions. Carr is doing impeachment worthy stuff.

Better choices for FCC commissioner, please. Plus, there should not be two vacancies. The FCC didn't even have a quorum until the third commissioner was recently confirmed. Important positions should be filled in a consistent and timely manner. 

The whole process of filling vacancies, including delays in the confirmation process, is something we should address. That includes not having as many confirmations. Many minor positions should not require Senate approval. Others, like an ambassador to a small nation, might be constitutionally necessary. Nonetheless, it should be possible to confirm quickly. 

I appreciate that the one voice of sanity at the FCC, someone (of course) appointed by President Biden, is the voice of reason. Remember. 

Call out what Trump is doing. Find ways to address it. Provide another way. 

SCOTUS Watch: Order List (1) and Some Books

Order List 

The normal term is over, but there is a significant amount of stuff left to clear away. Monday is the first of two order days. Most weeks only have at most one. 

The first order list is fairly busy. They granted a few cases, including a major campaign finance case.

[ETA: The next day, the Supreme Court appointed someone to argue the case.] 

Thomas and Sotomayor have statements and dissents in a few cases. Thomas didn't take part in a case without comment. Sotomayor and Kavanaugh would have taken cases without saying why.

(Curiously, the Sotomayor statement regarding the U.S. Sentencing Commission was joined by Barrett, with Jackson -- who had experience there -- not adding any comment.) 

A per curiam yet again rejected a Bivens claim (right to sue for damages, here a prisoner alleged physical abuse). The short opinion, without dissents, cites an earlier case saying there is an alternate route for relief. The liberals dissented there to point out the problem. Congress can address this problem. Ha ha. 

The Court also GVR'ed (grant, vacate, remand) a case, which is fairly common. The notable thing is that they granted a petition for rehearing in the process, something nearly never done. The case has been lingering since last summer. 

More to come on Thursday.  Also, for your scheduling pleasure, here are the three summer order list dates. 

Books

I was looking at a discussion of some fictional accounts of the Supreme Court and checked out two books from the early 1980s. 

Both are easy reading, while not too realistic (or detailed) accounts of the Supreme Court. They have some insider stuff while largely focusing on others tangentially connected to them. 

Margaret Truman (Harry’s daughter) wrote (or had a ghostwriter write) many mysteries, including ones with D.C. locations.

One involved Murder in the Supreme Court. The book doesn’t provide too many Supreme Court insights, tossing in some conspiracy stuff, but it is decent as a mystery. It provides various points of view, including a few justices and law clerks. The action largely focuses on the two people investigating the murder. 

Again, the Supreme Court stuff isn’t too impressive. For instance, why have a justice patterned on William O. Douglas and reference the actual person? The "youngest justice" was Joseph Story. The book takes place in the 1980s. Someone who fought in the Korean War is not too young.  

No More Dreams by William J. Coughlin is also from the early 1980s. Coughlin was an author and United States administrative judge. This book concerns the effort to replace a judge on a 4-4 Court. Tad heavy-handed with one justice supposedly deciding a bunch of life-changing things.

The Supreme Court took many more cases in the early 1980s. Many (most?) of them weren't too significant. The book also includes a rather unlikely law suppressing the freedom of the press (multiple serious articles are not published since the law makes the press liable for the results of the story, including a reduction of the collection of tolls after a story about the bridge being structurally unsound).  

The book largely focuses on a man's job (and various other personal things while he is there to investigate a possible candidate. Since the guy is principled, the ending is not too surprising. 

It is sometimes too detailed, but it is mostly a quick reading three hundred pages. 

Roberts Vents 

Meanwhile, Roberts is fine if you "vent" about bad rulings. He thinks mostly that it is about disagreement with the results, not the unfairness of the process.

OTOH, many argue it very well is about that. 

Strict Scrutiny Podcast

Strict Scrutiny had two "emergency" podcasts to cover the Planned Parenthood and birthright citizenship decisions (and other stuff) last Thursday and Friday. Both were around fifty minutes. I think that should be about the length of regular episodes. The hour-plus episodes sometimes seem too long.  Today's episode follows up, particularly about the LGBTQ+ case. 

You can listen and watch (the YouTube stuff is available a little after the audio). The episodes led me to again wonder why the "fourth Beatle" (Jaime Santos) left the show. 

She brought more appellate lawyer to the show, not being a law professor like the other three hosts. The (short) Wikipedia page does not even mention her. 

Curiously, after I once added a comment about her, it was removed. Did she just leave because she was too busy or felt it wasn't for her? 

I don't remember them making a reference to her leaving. Also, when she was an advocate in a case, the reference to her on the show sounded uncomfortable. I think it wasn't exactly a smooth break. 

It's all somewhat weird. 

SCOTUS Watch: Final Opinions

Amy Howe provides a helpful summary of the final ten cases that were left to be decided this week. 

Thursday Opinions (4) 

They had two boxes (four cases) on Thursday. Previously, the assumption was that they might be able to handle the cases in two days. 

There were two boxes led some people to assume more than two days. But the Court did announce that Friday was going to be the last day for opinions.

Thursday was somewhat less painful than some liberals thought. Jackson, logically given her experience on the U.S. Sentencing Commission, had the First Step Act case. Roberts and Gorsuch went along with the liberals except when Jackson spoke about "context and enactment history."

Sotomayor handled the death penalty case. Barrett briefly noted disagreement on something. Thomas and Alito (with Thomas and Gorsuch) spent more time explaining why Sotomayor was (way) off base. Conservatives will now and then help form a majority in capital cases, but they don't make a habit of it.  

Alito handled a deportation case. Sotomayor for the liberals (and mostly Gorsuch) was annoyed ("heartland of illogic and absurdity") and mostly dissented. Alito still uses "aliens," while the dissent uses "noncitizens." The noncitizen here worried about his safety. Gorsuch, this time, was concerned about that. He was less concerned earlier in the week.  

(The case is serious, but Steve Vladeck on Bluesky suggested it addresses a narrow number of cases. So, I am not sure HOW bad it is. OTOH, liberals don't want Alito to have this sort of case.)  

South Carolina defunded Medicaid payments to Planned Parenthood because it also performed abortions. The big bad case on Thursday (via Gorsuch for the conservatives) denied these people the right to sue. Thomas wanted to do more.

Jackson has a strong dissent. As a matter of principle, this shows the hypocrisy when conservatives talk about the right to choose your own doctor, including according to your own moral and religious beliefs. 

Friday Opinions (5) 

The Supreme Court had big opinions today that took over an hour to announce (with multiple dissents from the bench). It was wrong to shove so much in one day. Hundreds of pages of opinions today.  

It was also wrong not to live-stream the announcements. If they think they are important, the general public should be able to hear them now. 

(Oyez.com releases them sometime after the term.)

The morning started with a half hour spent dealing with the birthright citizenship opinion. I guess there was no punt! They did punt in one case. 

A Voting Rights Act case (among the much smaller than historically the case mandatory docket) will be reargued next term. Thomas dissents. 

Kagan has a 6-3 (Gorsuch, Thomas, Alito) delegation case. She handled the dissent in the online porn case (Thomas wrote for the conservatives) which allows a lower level of scrutiny in upholding an identification requirement. 

Kavanaugh has an appointment clause case (Thomas, Alito, Gorsuch) case but it's a limited win for liberals. Robert Kennedy Jr. can simply remove the  Preventive Services Task Force members or block its decisions. Still, a limited act of sanity. 

A government burdens the religious exercise of parents when it requires them to submit their children to instruction that poses "a very real threat of undermining" the religious beliefs and practices that the parents wish to instill. 

Two big problems today (the porn case is sort of a smaller problem). Sotomayor dissented from the bench in both. Again, we should be able to hear this. 

We also should be able to hear Alito broadly summarize why parents should be able to opt out (like a Chinese menu) from exposing their children to certain stuff taught in their public school. The net result will often be that certain stuff simply won't be taught. 

Sotomayor correctly replies:

Today’s ruling threatens the very essence of public education. The Court, in effect, constitutionalizes a parental veto power over curricular choices long left to the democratic process and local administrators.  That decision guts our free exercise precedent and strikes at the core premise of public schools: that children may come together to learn not the teachings of a particular faith, but a range of concepts and views that reflect our entire society.  Exposure to new ideas has always been a vital part of that project, until now. 

She is upset:

The reverberations of the Court’s error will be felt, I fear, for generations. Unable to condone that grave misjudgment, I dissent. 

(Alito provides some photos from a book while Sotomayor posts the whole thing.) 

The other case, which experts are already parsing in various ways, deals with universal injunctions. This is a controversial tool that has been abused, including by conservative judges. 

Nonethless, conveniently, it is addressed during the Trump Administration. And, via a case heard in May regarding something that is one of the least apt vehicles to attack it. The opinion did not address the merits of challenges to Trump's birthright citizenship order. 

Barrett deals with the particulars, with multiple conservatives providing concurrence. There are ways to provide wide relief without universal injunctions (class actions are cited by some replies). It is unclear how satisfactory this will be. Also, the opinion ultimately has a somewhat unclear reach. 

The liberals (Sotomayor and Jackson have strong dissents) are quite angry with the result. The "cumbersome" class action alternative is not an adequate alternative. 

Barrett takes a potshot at Jackson:

"We observe only this: JUSTICE JACKSON decries an imperial Executive while embracing an imperial Judiciary."

The justices who joined Trump v. U.S. can STFU about that. 

Sotomayor is partially angry because the Trump Administration is gaming the system and notes it is a "leap of faith" for the majority to assume the Administration will (eventually) accept a ruling on the merits. Why would they want to risk SCOTUS taking a case for review? 

Because I will not be complicit in so grave an attack on our system of law, I dissent."

Jackson speaks of an "existential threat to the rule of law" via a "smokescreen." And, after this opinion was handed down, they had four more to go!

Coming Up

Roberts moves on to thanking court employees, the Supreme Court bar, and the mentioned retirees, before he turns to Marshal Gail Curley, who announces that court is “adjourned until Monday, Oct. 6, at 10 o’clock” before banging her gavel and the justices disappear behind their red velvet curtain.

Again, in a sensible world, we would be able to see this by live stream. If the proceedings of the first branch are aired on C-SPAN, so can the proceedings of the third branch. Open government, please.

There will be two order days next week: Monday (ordinary Order List) and Thursday (clean-up Order List with justices providing some statements and dissents regarding various cases and some other actions by the Court regarding pending cases).  

SCOTUS Watch: Order List

Barrett Article 

Jodi Kantor, who is a good get, has another long-form article on the Supreme Court. The article is geared toward the average reader, providing an easy-to-read narrative and tossing in some interesting details.  

It discusses Justice Amy Barrett (yes, I'm not going to do the no-label thing). The headline has the usual "confounding left and right" bit, while the article shows she is still rather conservative, if not knee-jerk. If her nomination was above board, she could have been a decent in-context option for the Kennedy seat. Instead, she was shoved on late.  

Two liberal law professors whom I like, Melissa Murray (Strict Scrutiny Podcast and cable news appearances) and Michael Dorf (Dorf on Law), are quoted.  

Order List 

A short Order List with two grants. 

Both are relists, one more so, suggesting an ideological nature. The government's brief argues (the briefing is linked to the SCOTUSblog page) that for multiple reasons, there is no compelling need to take this case as one of the few cases SCOTUS takes for full review.

The case involves a crisis pregnancy center, which would make it appealing for multiple conservative justices. Also, a judge below dissented, which provides a flag to invite review. A Trump appointee, even if he at times votes in a libertarian way. 

There is also a GVR, also involving abortion, sending a longstanding dispute back to the lower courts (grant, vacate, and remand). New York supported the move. So, not surprising, but shows the implications of the referenced opinion. 

(If you follow the link, it goes to the docket page, and there is a supplemental brief on the point.) 

So, yes, even in a short, otherwise bland Order List, there is something notable. Tends to be. 

Exaggerated Agreement

Two legal Substacks challenged the suggestion that the recent slew of agreements should be taken to mean the justices are not ideologically divided. 

We still have some controversial cases left. There is a tendency to backload such cases to the very end of the term. The emergency/shadow docket is repeatedly ideologically divided, including all the Trump cases.

The docket is also carefully selected, with the justices having near total opportunity (except for some election cases) to choose what they want. They can pick cases with certain fact patterns and legal issues. Sometimes, they goof, leading to multiple DIGs this term ("improvidently granted").

The justices also carefully decide the cases, which helps explain why it takes so long to write certain opinions. Divisive issues are sometimes avoided. 

The divisions are sometimes not totally papered over, as shown by concurring opinions. The justices in a few cases are firmly divided in reasoning. Other times, one or more justices flag issues that the opinion avoids, including possible routes for the future or attempts to limit its reach.  

Joan Biskupic flags a concurrence in one of these cases by Thomas with Gorsuch that tosses in a dig at DEI referencing a brief by a group started by Stephen Miller. Gorsuch, team libertarian. Yes, separate opinions have a personal flavor. 

The selection of a few key cases, this term was less hot-button than some others, is a prudential approach. The Supreme Court used to take many more cases. The current Court has more power to control its docket. It is also much more active in the shadow docket, including (much to Jackson's annoyance) granting relief in pending cases. 

This is inside baseball stuff. It still has some rather important consequences. More opinions on Wednesday. Hot-button cases coming up.

NY Leadership & Other Matters

[I added a general discussion of the moment and what we need to do long term at the Substack.]

I talk about some New York Democratic politics matters in a Substack entry. The response to an incident at a Democratic congressional office suggests the limits of Jeffries' leadership (he never did appeal to me). Another challenger for Gov. Hochul in next year's race. And more on Cuomo. 

As they say, keep an eye on your own house. MAGA-friendly leadership in Poland seems bad. But we have stuff to worry about in the United States. Let's localize that. N.Y.

The same applies regarding Israel. The situation there continues to be horrible. For the Palestinians. The wrongs of 10/7 do not erase the tens of thousands of civilians who are suffering and dying. The results will be more hatred and violence against Israel. Which will result in more suffering. 

Multiple violent attacks, the latest resulting in twelve (so far) people hurt, in the United States, again show this is not just an "out there" problem. The result again will be counterproductive if you are sympathetic to the Palestinian cause. The Trump Administration will continue to cynically and hypocritically use it to go after immigrants and dissent. 

American Jews have a reason to be scared, partially since their Administration "protectors" leave a whole lot to be desired. The leadership (or whatever it is) in the relevant places, including the Attorney General, Department of Homeland Security, State, and FBI, also doesn't lead one to be secure.

Meanwhile, we enter the sixth month of 2025. 

The Court v. The Voters

I noted my opinion that the Constitution protects a right to vote. A book assumes it does too in various ways while listing various cases where the Supreme Court threatened voting rights. 

Justice Douglas in Baker v. Carr argues that "the right to vote is inherent in the republican form of government." A follow-up case, Reynolds v. Sims, held that “since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” 

The right to vote is a "fundamental right," which is particularly notable when equal protection is involved. Voting also involves the freedom of association, including protection of candidates whom they might vote for. One case declared that an "election campaign is an effective platform for the expression of views on the issues of the day, and a candidate serves as a rallying point for like-minded citizens."

Voting rights, after the 1960s, began to be given less protection, including in Richardson v. Ramirez (felons). One problematic case allowed Hawaii not to allow write-in voting. Bush v. Gore (with the dubious argument that it was partially 7-2, though all four dissented in full) and later cases are cited.

In the final chapter, some possible solutions are offered. Three general strategies:

1. Voters compromise/avoid SCOTUS
2.  Reasonable Court Reform
3.  Mobilize/form a pro-democracy movement

A compromise approach can aim for bipartisan, voting-friendly legislation:

1. Every eligible person can vote with minimal burden
2. Acknowledge concerns for potential fraud [e.g., use of paper ballots]
3. Voters should be as educated as possible
4. Elections should be based on ideas, not rules; losers should accept defeat 

Perhaps, per Rick Hasen, the ultimate goal can be a constitutional amendment broadly protecting a right to vote. We can also seek out national legislation, though the author supports a state-by-state method.

The book is overall a pretty good read, though it has some annoying mistakes, such as having Burger as an Eisenhower nominee (not as a lower court judge). It is not comprehensive (chapters are around 15 pages long), so some details in the cases are left out.

Still, it is a good way to learn about the cases and general principles. And there are some good developments, including pro-voting legislation in Kentucky, judicial elections helping in Wisconsin, and even places like Texas (pushed by litigation) easing its voting ID laws (a waiver can be signed to avoid photo IDs). Still a long way to go.

ETA: One person on a blog comment -- from someone often less troll-y than others, but has a hobbyhorse about the horrible nature of the law partially struck down in Citizens United, took a slanted approach to my summary's bullet points.

Don't do this unless you are sure the person you are engaging with is arguing in bad faith or is ignorant. And, even then, replying with a chip on your shoulder ("do you know" ... yes, I said that read a whole book on voting rights by a progressive; I'm aware of literacy tests and so forth, putting aside my other knowledge on such subject matters) is not often likely to do much. It will breed resentment and flame wars. 

For instance, I said, "should be as educated as possible." It's perfectly fine to ask me to clarify. But, assuming there is no way ("can't think of something") to do that in a positive way (voter education) is silly. 

I provided multiple examples of truly bipartisan campaigns. Again, since the person doesn't like a single law (better yet, part of it), they latch onto the one single example, badmouthing the sponsors. In this fashion, the author is not really bipartisan. 

Since it's a "law," it passed Congress. Two people you dismissive as dilettantes or whatever, aren't the only ones who supported it. 

The Supreme Court upheld most of the challenged portions the first time around, with Republican appointed justices going along in various respects. A Reagan appointee who was a Republican leader in the Arizona state legislature counts. 

And, yes, the person provided a slanted understanding of the provision struck down, including alleging it targeted minority speech. This is untrue overall, but particularly absurd when applied to anti-Hillary Clinton videos. Ah yes. Only a small segment strongly criticised her, someone who didn't even win the nomination when the film was created.  

I didn't provide that snarky part, but it is sometimes difficult to avoid doing so when a reply is so off base and (wrongly) infers you are not speaking in good faith. I followed up my two comments with long-ish replies. I put in the work. In response, I get bullshit.

Yes, it's hard for me to respect someone who does that, even if they are generally less troll-y than some of the people on the blog. I very well might respond -- insert "someone is wrong on the Internet" comic strip -- and try to be fair about it. 

And, if I insert just a bit of snark, many will latch on to it, not being able to take what they dish out.