"Trump Opens Door for End of Birth Control Benefit"

Update: Linda Greenhouse's discussion of the new regulations states that the Hobby Lobby workaround option is not present. It also notes something else I have seen addressed -- the application to "moral" objections is not a legitimate application of the law (the "R" in RFRA is "religious" even if some states have broad "conscience" exemptions) and it was not put in place using the right procedure (this impatience was also seen in the travel ban cases). See also here. I think it will be tweaked (see travel ban though that case suggests maybe not too much) especially given the presence of litigation, which has already started. 

As usual, keeping track of all of this is confusing.  The whole special rights for religious objections, with the courts trying to figure out the nuances, continues to be taken to dubious lengths. When RFRA applied to the states, Scalia spoke of the problems. But, suddenly he went along without comment when it was applied to federal practice. The problems behind his concerns (back to the Oregon v. Smith case) have not disappeared so it is unfortunate he did not at least write a concurring opinion to address the sentiments of the person in the previous link and others like her. 

This expanded discussion still leads me wondering exactly the scope of the move. Note particularly reference to an upcoming release of regulations that are over one hundred pages long.

The Hobby Lobby decision, to retain Kennedy's vote, assumed that the contraceptive mandate was a compelling state interest and that the opt out demanded did not burden female employees (as a tweet notes, the mandate concerns not just women, there are two parents involved). This is dubious in practice, but does depend on the actual regulations, what the employer has to do and the coverage still available.  So, e.g., Zubik v. Burwell was punted by the Supreme Court.  Just what employers could be required to do here does not seem to have been fully clarified.

The usual concern for supporters of the benefit here is the burden on health and particularly women's health.  So, there is a basic choice being made to what is a proper benefit (part of an insurance package one pays for to be clear, it is not "free") -- with some libertarian pushback -- and debates with a sex/gender component (use of birth control seen as "slutty" etc.).  But, as with the same sex marriage debate, there is also a special use of religious and conscience (a more open-ended thing) arguments.  

Hobby Lobby was problematic as the dissent spells out. Employers have a certain obligation to provide benefits to employees and do other things that might in some fashion conflict with the owner's beliefs. Selectively focusing on contraceptives has a certain sectarian character here. Look at the essential benefits package. Various ones possibly might conflict with religious beliefs. Certain surgery that might threaten a fetus. Use of pro-GLBTQ therapy. Certain usages of drugs.  And so on.  Many of these things maybe won't seem likely to come up. Vaccination is one area that belies that. But, anyway, that is not how religious freedom works. Religious liberty includes rights for small groups.

Finally, I find it helpful to look at this from the other end. Health insurance provides individual workers a better ability to make life choices that reflect their own personal conscience. This is a sound approach -- Planned Parenthood v. Casey, e.g., specifically noted abortion is a choice that has a special conscientious component, one the Constitution leaves largely to an individual to choose among various options.  Like is the case for the right to counsel, this right often is severely burdened if one lacks the means to freely make it.  Denial here has much more direct effects than the indirect involvement of employers akin to them paying people who then use the money in ways employers dislike.

Employment based insurance in fact is a type of compensation in the current system.  Again, if this is a problem, there is a slippery slope. In the past, minimum wage was seen as unnatural, there a just wage that grows out of the nature of things, having a religious component.  In U.S. v. Lee, social security benefits was not seen as a violation of the free exercise rights of Amish. As with the idea that IUDs and certain birth control pills are "murder" because of a minimal possibility that they might interfere with implantation (something current science appears to factually reject anyhow), at some point you are going to stretch things too far to work.

And, this is even more the case if we recognize a true understanding of religious liberty, which will include government regulation. For instance, doubtful that those who support these changes disagree with protection of religious liberty found in civil rights law, including employees having rights to pray and so forth at workplaces.  What this amounts to is a selective view of religious liberty, one that breaks both parts of the 1A provsiion. See Harris v. McRae, where both establishment and free exercise arguments were raised, if imho not adequately honored.  The pro-abortion rights aspect of this warrants more attention.

Finally, some argue that my concerns miss the point -- the free exercise benefits of the contraceptive mandate lack the same state action concern as government regulations that burden religious practice.  Various replies. First, as explained, the public marketplace is not a "private" zone and more regulations are appropriate there.  Second, there is a selective nature to the exceptions here enforced by governmental action as well as government benefits like funding only certain pregnancy related choices based on certain moral beliefs. All are "health" related, thus the usage of the blog label. And, government regulations in various ways appropriately advance personal interests, including religious freedom. The strength of the interest there matters.

"The Second Amendment Is Not a Relevant Part of This Story"

The title is from this essay for which I provided a few comments, including quoting from the Heller case where the Supreme Court recognized a constitutional right to own firearms for individual defense but left open various types of regulations.  "The Second Amendment" is basically a trope referencing some strong right to keep and bear arms that makes regulation difficult. For some, regulation should be a limited exception, each one warranting a red flag, even if allowed. It is telling that the NRA is open to some regulation of "bump stocks" that were used in the latest massacre.

(I have kneejerk opposition to limits on First Amendment liberties, but over time, extremism led  me to constantly note that there are limits. If there, surely there are limits on more dangerous guns, especially if the 2A itself is understood to cover limited ground while a more general liberty to own and use firearms is a general "liberty" that is not singled out for concern. But, that ship seems to have sailed.)

I was doing my laundry when I heard about the Las Vegas shooting that currently has over fifty dead and many many more injured. It lead to the usual stuff, including "not the time" comments, references to Australia (involving a ban of certain weapons and obtaining those own that probably would be complicated here both culturally and constitutionally ... though would be interesting to read about that) and so on. There are ways to go, including a concerted to address gaps in the background system, which in itself very well probably saved life and limb.  A Democratic senator from Connecticut (Newtown) correctly noted that it is left to pressure from the people to push for change. Ditto I'd add actual gun owners, lots of whom are perfectly fine with regulations.  Note the bipartisan nature of Australia.

Massacres of the sort like Las Vegas are a small part of attacks though the scope remain notable both as to number and affected parties. Suicides, accidents and violent crimes generally (and drugs being illegal is a factor here) affect innocents and generally are unfortunate.  But, killing a bunch of school children or concert goers is a special level of (to use a word that caused issues) terror and large scale loss of life.  And, means to limit illegal gun use generally will affect all cases though some can focus on specifics such as cutting down on suicides. Finally, it is simply normal for major tragedies to get one talking or maybe to lead to change. This includes in one's personal life.  So, if this helps there, it's good.

A final thought -- sometimes it is noted that a true shift will only occur when guns, or at least certain types of guns, are treated like smoking. Smoking is now in a core way unsavory.  In the 1980s, during Scalia's nomination hearings, one can see him smoking a pipe. A basic thing like ending smoking on flights is a major thing.  I personally would hope more of that was present regarding hunting.  A basic thing here is use of guns in fiction, including the basic ending where the bad person is shot dead.

[A comment originally attached to the subject essay, in part in response to an earlier reference to Saul Cornell.]

I read various accounts on the 2A, from different angles, and Saul Cornell's book [which American historian & dissent evangelist John Fea recently endorsed] was a good part of the story. I take his approach is that there is the 2A with the militia component & a separate common law right to own a firearm for self-defense. Cornell also wrote various articles that were interesting as well.

I don't think John Paul Stevens' dissent is fully convincing but on original understanding grounds as to the 2A it does have serious bite. But, I'm not an originalist. By my understanding, there was a growing understanding that the common law right was deemed a constitutional liberty. This might have been recognized enough by 1868 for there to be a fairly strong originalist claim on 14A grounds.

Liberties are not absolute. Various writers have showed the historical evidence (for those who rest on that) of the legitimacy of a range of regulations. Heller made a list of regulations assumed acceptable. It spends very little time actually examining the specific regulations at issue [handguns are in common use and there are logical reasons for this], a chunk of that section used to refute Breyer's historical evidence and general approach.

I actually agree with the core idea that there is an individual right to own a firearm though it's tougher to say there is a constitutional right to a handgun in a home in a crowded urban area. The law didn't ban all guns. As to handguns, perhaps the law was overbroad [e.g., a right to own a firearm exists; even handguns; but handguns need to be inoperable in a secure location, yes in part to protect children who repeatedly are injured in gun accidents]

Breyer found a way (refuted by the majority) to read a self-defense exception in the law. The problem with the trigger lock provision is unclear unless there is some absolute right on a moment's notice to be able to shoot a handgun. During the oral argument, Walter Dellinger noted that it is pretty easy if you know how to open it to disengage the lock. There are loads of limits on 1A liberties that in such and such a case is more burdensome taking a minute or less to open a trigger lock specifically on one type of gun in a crowded urban high crime area.

The Supreme Court should have sent this case back to the lower court to apply the facts to their new constitutional standard. The activism (not a bad word inherently) shown here is telling. The 2A itself is not the problem. It is the "2A" -- a certain cultural understanding, specifically in certain groups, since again I think evidence shows that popular gun rights might be, basic regulations are as well.

Example: Malcolm Nance, a familiar cable news talking head, noted he owns various guns. But, his guns aren't locked and loaded at his bedside. They are in safe storage. I question if he would have a problem with a law requiring trigger locks.

Baseball Update

I seriously thought there was a chance Twins, with a good starter, could win. They went ahead by three and the starter was out before the end of the 1st! But, their starter gave it right back! It was 4-4 soon but then the Yanks pen just shut them down. Rockies went down 6-0 and clawed back to one back twice, but their relievers, including their closer, kept on giving up runs. Meanwhile, Mets make various personnel changes, except for the GM!

UN Anti-Death Penalty Resolution & It's Discontents

ETA: Supreme Court vacates 11CA injunction (arising from lethal protocol issues) with three justices publicly dissenting. [There is some debate how one should count the six, so it is not clear Kagan agreed one way or the other.] Neither side explains their competing votes regarding someone's life being deprived.  This is unjust and violates open government. Plus, it is an opaque way to oversee lower courts, here selectively (somehow) told they are wrong. A serious non-capital case also should not be so treated.

US votes against UN resolution condemning gay sex death penalty, joining Iraq and Saudi Arabia: America one of 13 countries on Human Rights Council to oppose historic vote.

This Is Why The US Voted Against A UN Resolution Condemning The Death Penalty For LGBT People: It wasn't just about the provision protecting LGBT people from being killed via the death penalty. The US just really likes the death penalty.

Above is the headlines for two articles on a UN Human Rights Council Resolution that the second article summarizes in the article:

Would encourage member states to apply a moratorium to the use of the death penalty, noting in its preamble the way that it can be unfairly applied to women, the disabled, along racial divides, and against people engaged in "consensual same-sex relations.

The resolution is a 14 part affair that is carefully scripted in UN-ese with words like recalling, reaffirming, taking note, mindful etc. used in different cases.  The resolution is broad in scope, covering things like access to consular assistance for foreign nationals, various discriminatory applications, condemning usage for things like blasphemy etc. It leaves open states that still have the death penalty a chance to sign on, but clearly finds it overall problematic.

It's understandable that the U.S. did not sign on though I really don't think it had to do that. And, various provisions of the resolution allows articles that suggest the U.S. is gratuitously not signing on something that is promoted as a first to include LGBT relationships (see the Buzzfeed article).  The Obama Administration didn't have to deal with that last point, but abstained, officially noting the death penalty was legal.  An unfortunate stance, if one that to me does seem less gratutious.

The first headline* also follows a common understanding: the U.S. is an outlier in respect to the death penalty, having unpleasant company along with a few miscreants including some conservative Muslim country.  But, we do later find out that full list of noes: "The 13 states to oppose the resolution were Botswana, Burundi, Egypt, Ethiopia, Bangladesh, China, India, Iraq, Japan, Qatar, Saudi Arabia, the US and the United Arab Emirates."  Well, China is a usual miscreant fellow traveler.  India is somewhat interesting.  But, Japan?  Huh.

Japan from my experience is not given much attention when discussing the death penalty and the general assumption I bet is that it along with Western Europe does not have one (or uses it sparingly). This would be false. Over one hundred people were executed since 1990, in a nation with less than 40% of the U.S. population. Now, even factoring in the population difference, that is significantly less than the U.S. in that time span.  Nonetheless, it is a significant number that would particularly stand out if you look at the numbers of execution outside of the South.  India executed around twenty people in that time period, thirteen in 1995.

Japan probably deserves more attention in this area. Overall, I think the coverage of this resolution is somewhat misleading and incomplete in certain articles.  This is not surprising but underlines that news should be taken with a grain of salt, especially headline/tweet summaries.

---

* The second article notes at one point: "The US was one of the 13 votes against, alongside Iraq, Qatar, Saudi Arabia, and the United Arab Emirates, a point that led LGBT groups in particular to immediately respond, calling out the US Ambassador to the UN Nikki Haley in particular for her stance." Nikki Haley is an Indian-American.  But, who are the rest of the 13? 

SCOTUS Watch: Grants

SCOTUS granted a bunch of cases for oral argument, including one that will threaten public service unions. This all part of the Republican leaning policy approach of the courts. An article discusses some more a lower court nominee covered by this blog, focusing on her religious associations. This is somewhat interesting but think the coverage is focusing too much on that as compared to her overall conservative views. Big reason she in particular was picked. Her religious views probably factored in and if done right can be explored.

SCOTUS Watch

The year continues to be bad but it is starting to fade -- we are almost ready for a new term. "Long conference" time! Time for a few more '16 term orders. Just in time, Trump has a new travel order, which might moot the current case. SCOTUS is going it slow on gerrymandering. Meanwhile, Gorsuch is ratcheting [McConnell] up [Trump] the impropriety.

ETA: I have not read a full analysis, but unclear how much the "new" travel ban really changes anything, at least to make it less offensively both arbitrary and broad (as to those covered). As the link notes, its effect on North Korea is trivial. Venezuela is also a limited thing. So, Chad? I foresee more litigation in its future. [Execution held up, 6-3.]

Sports Update

A few things watched/read recently but nothing really wanting too much comment -- the books as a whole were somewhat blah if okay. The Mets (and likely Jets; the Giants isn't starting off that well -- two losses, less offense than the Jets) wish "somewhat blah" fit their performance. Dolphins next for Jets -- sorta winnable; then two of the best bests for wins. Killer schedule most of the rest of the way. Eagles for Giants; both a should and must win. Few slots not quite there for MLB playoffs. Hope the Twins hang on.

Primary Day

People are already talking about 2020 but first let us deal with 2017. There is after all various national and state races going on.

It is time for New York City elections.  Though the NY Daily News doesn't like him (recently sold; the editorial board made clear to note they were upset he had no serious competition yesterday), the mayor has a lot to be proud about.  The ID card alone is impressive.  He received about 3/4 of the votes.  I gave Robert Gangi, the lefty dreamer sort in the race, one of his few votes.  But, hey, more power to you big guy.

The other races did not have much competition in general. The Brooklyn DA, who replaced a newcomer who died, got some serious competition but won comfortably.  The comptroller had to competition. The public advocate won comfortably.  The main battles were a few council races, including my own -- the lucky 13th.  To me, the wrong person won, the one with a job already (state assembly), who (he says its for the public service) I think was influenced by the pay raise (which is a bit backward). 

The article above notes: "Marjorie Velazquez, a district leader who had the support of Vacca (incumbent) and Mark-Viverito (outgoing city council speaker, may get a second, more difficult shot in November on the Working Families Party line." You'd think such support would get you the job, but the winner seems to have had support of many party leaders including one who is a leader of the faction that caucuses with the Republicans in the state senate (that alone pisses me off).  I kept on seeing his damn campaign sign in store windows and even two big freestanding signs on primary day.  In the same long row of stores, I caught a single of one her signs.  We are not talking a lot of money either.

Mark Gjonaj: 38.6%
Marjorie Velazquez: 34.4%
John Doyle: 19.1%
Victor Ortiz: 4.8%
Egidio Sementilli: 3.0%

The NY Daily News supported Doyle. I thought that this was in effect a good result because of some forty percent threshold to prevent a runoff.  de Blasio, e.g., avoided one the first time around by a fraction of a percent.  But, apparently it does not work that way.  Anyway, with all that money and face recognition (after all, he is the state assemblyman of the district, which I guess means if he wins in November that I'll have to vote for a new one), the fact he won by what amounted to a few hundred votes is not surprising.  If a tad depressing.  I particularly do not like people resigning from their seats for reasons other than something like appointment as a member of the Cabinet.  Going down one level and denying someone else the position is to me both unfair and not appropriate. Serve out the term you were voted to fill. 

If she is not running on that line in November, I will vote for whomever is or write in someone.  He got my vote for assembly.  There will also be ballot measures. Oh well. Got my sticker.

[Found this coverage. Can you be more depressing?]

Responding to 2016 Elections: Supreme Court

[And Also: Congress passed a joint resolution regarding the white supremacist events, which means the ball is now in Trump's Court. This is a footnote of sorts to Art. I, sec. 7.  A single house of Congress can simply pass resolutions, but a joint resolution goes another route.]
 
Some SCOTUS orders going on, including no dissent to not intervening in an execution and staying a 9CA judgment involving the travel ban.  Four justices (guess what four) did publicly (if without comment) dissent to a stay an ongoing Texas voting rights case.  Analysis with Gorsuch photo.

One comment wondered what we should do regarding the Supreme Court. I'll post what I said.  It's depressing but we have been down this road before. Unfortunately, conservative justices are not as old as they were in the early 1930s. And, the one that is ... well, we don't want him to retire.

A major thing to do is to wait them out. Hard but was done in the past with let's say segregationist justices. Second, reduce the harm as much as possible, including finding ways to get wins at least in limited ways. So, e.g., privacy rights are a concern of some conservative justices as seen in the cell phone case. Third, protect as much as possible by other means, including state courts and legislation. This clearly will require getting more political control such as in the House of Representatives.

Impeachment is not really a credible approach and there is a concern it will be used against you (see the original "Justice Chase" precedent). The Kennedy (assumed) replacement process will be a major act of war here & Democrats must find some means to get something to hold over Republicans to try to get at least a half-way decent replacement. The same with lower court judges.

Finally, there is already thought of adding seats to the Supreme Court if Democrats regain control after 2020. I'm not sure that will work out though it might be something to think about when the time comes. Overall, I'm really concerned about this especially if RBG or Breyer are forced to retire.

Seventh Circuit nominee Amy Coney Barrett & Religious Questions

[This article used her hearing -- not this issue specifically --  to criticize the lack of openness about the candidates' views.  The video provided includes a new Republican senator being upset.  One low point is a nominee not wanting to cite an opinion she had problems with since a litigant might later question her ability to apply them.  We can discuss how we got to this point, and it's understandable, but the point is still a problem.

Seriously?  The senator there needs to find something, there must be something, where she actually did criticize an opinion. Or, ask if a critic of Plessy should not have been nominated to the lower courts in the 1930s. Of particular annoyance is that some senator is not going to suddenly change their vote because she criticized some case five years back and cops to it now.  There has to be a bipartisan push for openness or no confirmation.

As basically suggested by Sen. Kennedy there -- no not that one -- we are dealing with humans here.  And, they have opinions and experiences that in some way will influence their judging. This need not be some special "gotcha" though sure everyone won't simply be bland ciphers lacking opposition.  That happens too. And, you can still vote for people you find fault with somewhat. They are human.  A "no" vote in confirmations usually means a special extra concern, not just favoring someone else given your druthers.  They were nominated in part for this and it is perfectly appropriate for senators -- at least up to a point -- ask them about it.  And, yes, both sides' nominees play this game.

This is so even if you think the questioning as to religious beliefs below was done wrongly.  At some point this is a sham. If a senator in the majority, who is going to vote for you, cannot get decent answers here ... ]


ETA: This Daily Caller, yes the source is used advisedly, piece is informative.  Take Sen. Durbin, a Catholic, explaining his position with inclusion of a three minute video (better than some thirty second clip).  The video shows the context of his question to him if she is an "Orthodox" Catholic, which some have been outraged about, as some crude "religious test."  She used the term in the infamous article and it for some reason confused him.  He asks for a definition and then asks if she is one, partially since there is some debate over what "orthodox" means.  

I'm still not really supportive of the question -- it really opens up a can of worms -- but it wasn't some reprehensible moment.  Finally, find it hard to believe her faith really doesn't affect her judging at all.  In some fashion, at least along the edges, these things will influence you. But, overall, her article shows to me an appropriate approach.  We should be honest about this and senators like Whitehouse and Franken being upset at nominees trying to pretend they are in effect blank slates, it's law all the way down (to reference something Kagan said), have a point.  

But, unless there is a very good reason to think a person's religion is going to interfere with their job, a senator should be wary about bringing it up.

Plus: NYT op-ed sympathetic to the questioning.

I'm depressed at the number of conservative judges that will come as a result of Trump, especially at the top.  But, I have seen some of the "Legal Resistance" -- including liberals -- supportive of some of the nominees to the lower courts.  I gather the same would be true if Hillary Clinton won but suffice to say it's possible that the above can be true and also that on the merits the picks in various cases are good to the extent we are stuck with conservatives.  Also, it is best not to rely on false issues.

I think a major concern with Amy Coney Barrett is that -- contra the concern here, which I address in one of the latest comments -- is that. Reading over the now infamous article, didn't find it really problematic. The basic idea is that being Catholic leads one to be against the death penalty, but a Catholic judge should not stretch the law (even if there is room to make it look okay) to avoid applying it as a matter of constitutional law.  At worst, and the article suggests line drawing might be complicated, the judge should sit out if they are unable to do so. This should appeal to liberals, especially if the same principle applies to abortion.

Anyway, it's just one article, so who knows how much weight should be given to such things.  I think it is okay for senators to ask her about it, fleshing out her understanding of constitutional interpretation. As discussed here -- added comments there as well -- a couple Democratic senators might have made something of a botch of it all.  I'm not going to rely on some thirty second clip where Sen. Feinstein said "dogma" or anything, but along with the Sanders thing (which was covered by a link referenced; I'm wary of his stance and it received some push-back, including from some otherwise sympathetic to him generally), it really upset certain religious people.  Should be careful there.

Without trying to watch a few hours of testimony, part of this care should be to understand what is being argued. A confirmation hearing isn't necessarily the best place to clarify, but there is room for understanding and that should ideally be the place (along with behind the scenes questioning and questionnaires/responses to questions in writing)  to put this sort of thing out in the open.  Of course, it is all going to be an imperfect process.  But, at times, it is going to involve religious issues as noted by the professor writing the discussion in the previous link.

By prohibiting religious tests, the Constitution makes it impermissible to deny any person a national, state, or local office on the basis of their religious convictions or lack thereof. Because religious belief is constitutionally irrelevant to the qualifications for a federal judgeship, the Senate should not interrogate any nominee about those beliefs. I believe, more specifically, that the questions directed to Professor Barrett about her faith were not consistent with the principle set forth in the Constitution’s “no religious test” clause.

If so, not asking questions about "religious or spiritual foundations of their jurisprudential views" might be too broad of a test.  The professor there is sure to say that he thinks the nominee is overall commendable even taking into consideration the stance of that article.  But, let's say a person's religious belief holds that you have a right and duty to stretch the law as much as it is reasonably possible if otherwise it would violate natural law?  Is this possibly religious belief truly "irrelevant" to qualifications?  Free exercise rights are not absolute.  Finally, if religion plays an important part in one's worldview here, why not cover it? OTOH, certain questions might have gone too far, including asking her about her faith in a way not closely tied to the requirements of the specific position. 

A more strict view of the Art. VI rule to me is too extreme: the summary here suggests the clause "would require them to avow or disavow, under oath, allegiance to a particular faith or set of religious doctrines."  Under that test, Congress could pass a law stating the no Catholics, but as long as nominees did not "under oath" (presume affirmation too) have to swear they were not Catholics to execute the rule, it would be okay.  Along with the First Amendment generally, think things are a bit stronger than that. And, the spirit of the provision warrants special care before one's religious beliefs should matter. Again, in narrow cases, they might.   But, my concern is their overall beliefs on positions as compared to specific religious beliefs. That sort of thing can be misleading too at times.

Overall, I think this discussion has much going for it, putting aside my wariness about certain aspects of a long discussion.  Special care should be taken to questions regarding her faith and when it overlaps with judicial ideology, the senators had a special duty to tread carefully.  They probably didn't in certain instances, but overall, I'm not going to be very upset since on balance they have earned some good faith.  (If I can use that term.)  And, even there, we are only talking about part of extending Q&A.

The nominees repeatedly are going to have religious beliefs some do not like, but we can focus on their non-religious beliefs and qualifications (or lack thereof) when opposing them all the same.  Finally, I'm sure the specific nominee here has judicial ideological beliefs I oppose -- Trump's legal nomination team aren't aiming to pick neutrals.  But, this specific approach is misguided and will make some look bad to those not already convinced.  I would try to avoid such unforced errors.

Endorsement Test / Racist Symbols

A bit repetitive, but to underline the endorsement point:

There is little doubt that the Klan's main objective is to establish a racist white government in the United States. In Klan ceremony, the cross is a symbol of white supremacy and a tool for the intimidation and harassment of racial minorities, Catholics, Jews, Communists, and any other groups hated by the Klan.

As I noted, it is suggested in one article that perhaps Justice Thomas was interested in reading a reply (it takes just one justice for the Court as a whole to request according to the article; guess a majority can overrule if desired?).  The opinion cited above is one of multiple cases where Thomas was particularly concerned about white supremacists, particularly usages of crosses, including a separate dissenting opinion regarding membership of an Aryan gang being relevant in a capital sentencing case. 

This includes even then rare questioning from the bench such as in the case excerpted which was a mixed free speech and Establishment Clause matter.  A state wished to deny stand alone religious displays in an area deemed a public forum.  In this case, the desired display was a cross offered by a white supremacist group since other holiday displays were allowed. The Supreme Court held that since there was not a constitutional establishment problem, this was a violation of free speech.  A majority of justices still was concerned about endorsement of religion even in this context (a private display on public land) though only two justices specifically thought the state was correct as applied.

The basic rule in place was that an illegitimate state endorsement of religion was one where (to cite O'Connor's opinion) the government makes adherence to a religion relevant to a person's standing in the political community.  So, basically a stand alone creche that honors a Christian view of the winter holidays (as compared to a mixture of displays) might be illegitimate.  The changing membership of the Supreme Court makes the particular rule now in place more unclear (though the Court has yet to specifically overrule the old test), but the basic concept is sound. It is especially a concern when minors are involved, Justice Kennedy's vote in particular. This case involves a minor. 

As I noted, people have had standing to sue to address the constitutionality of such religious displays.  It isn't seen as an inadequate "stigmatic" injury.  Plus, the general concern is not merely stigma. When specific religions are favored or religion in general matters in ways it should not [see, e.g., religious oaths], it is a general problem.  It has real life effects other than hurt feelings, including affecting real policy.  The mere usage of "God" all over the place (on coins, courtroom walls, in our Pledge of Allegiance etc.) alone has implications. The more sectarian endorsements surely do as seen by our abortion funding policy where one view is in effect established.

I refer again to the article I cited about how state confederate flags affect trials.  But, racist symbols, including Confederate war memorials, have a general purpose and effect. A subheading in the district case is telling: "Keeping the Spirit of the Confederacy Alive." The district court did not take seriously the lawyers claimed concern of physical safety or stress from the Mississippi Confederate Battle Flag.  But, if thankfully less so now (but see recent events), can we really say it is totally without merit for a black person in this country?  Thomas spoke of the "intimidation" of the KKK cross.  Does not these racist symbols also have that character?  It's not a burning cross, but frigid weather not being sub-zero is only so different.

Heritage is appealed to by some in respect to government endorsement of these symbols.  Examination of the history shows that it is somewhat fatuous to take that on face value -- if heritage is honored, it is a selective one. But, as with usage of religious symbols, the fact that there might be some sort of legitimate state purposes promoted does not alone make state action acceptable.  A permanent Christian cross on top of a statehouse is broadly seen as a step too far, even by Justice Kennedy, who did not go along with O'Connor in the Allegheny creche case.  Why should a big Confederate cross, also honoring a racist message, okay? 

Both are in effect violations of equal protection, both have their special constitutional concerns.  A religious display is specifically addressed by the First Amendment.  A racist display goes to the heart of equal protection, which is a general right but clearly race was and remains a special concern. Finally, the Thirteenth Amendment adds a final gloss -- it is a "badge of slavery," even if an open-ended security there is left to congressional legislation.  I think the bar against slavery, which obviously has a special racial context in our country, might by nature have a penumbra protected here.  Again, the lawyer should have standing to make the case.

"Brief amici curiae of Members of the Congressional Black Caucus, et al. filed. (Distributed)"

Again, I don't want to assume too much regarding this matter though wish it wasn't buried in the docket page -- even if one justice has a problem and dissents to an order, it is upfront on the Order Page. Here, if I didn't happen to see an article about the matter, which is obviously quite topical, I would not have known about it. There are lots of cases simply being examined, some having some sort of action like this. I would add as well that while I do appreciate what SCOTUS does provide (simply by typing in "Moore" in the search box on the docket page, I found the page), more can easily be provided. This includes link to opinions below, amicus briefs and so first.

For instance, the Congressional Black Caucus brief, which is one of those already noted on the docket page.  Note that the docket page of the case provides a minor window into the proceedings of the Supreme Court that in certain cases might be more revealing than others, especially if there are signs that an informed observer might catch. For instance, for some reason, a month after this brief was distributed, the state is requested to reply.  Since the two courts below was dismissive (though again the district court judge took time to spell out the racist history of the flag, which amounts to an extended advisory aside), such a brief can be useful to show a different view.  Things often are more complicated.

The brief challenges the citation [the appellate opinion is here] of Allen v. Wright to hold that mere exposure of a discriminatory message is not enough for standing purposes. Granting that holding, as one must, the situation here is at least somewhat different. The case there involved parents who argued tax benefits to private schools with allegedly discriminatory polices burdened them because it affected their ability to send their children to non-racist schools.  The Supreme Court closely split (if Marshall participated, would have been 5-4), but the harm was not as direct as here -- the lawyer and his child directly is exposed to the flag.

Still, the court below says the specific harm being alleged is not enough to be denial of equal treatment as such.  It is not a matter of denial of schooling or marriage (even if a license is arguably merely "symbolic").  As the Supreme Court noted in that case: "Neither do they have standing to litigate their claims based on the stigmatizing injury often caused by racial discrimination."  The brief cites a case about a candidate on a ballot challenging a law that required statement of race; perhaps closer but still a concrete harm -- the right to be on the ballot without expressing one's race. The dignitary harm here is broader and more open-ended as to scope, even if I'm trying to limit it some to specific lawyers or students. 

But, the opinion is not about parents who actually have students in schools having some sort "stigmatic harm," so it seems to leave open this specific situation.  The problem remains that a "stigma" harm alone does not seem to be enough for equal protection purposes.  The brief points to various opinions where a dignity harm seems to be a core concern of the courts, something particularly appealing to Justice Kennedy.  The standing issue remains.  A marriage license very well for some might largely be a matter of dignity (though it's more than that for most).  It still is a concrete thing. 

The brief ends with a concern about "endorsing" racism. This goes back to the comparison to an endorsement/religious liberty claim.  It is a core problem with these racist symbols and very well might be appropriate for standing purposes.  At least, I'm not sure what makes it different from religious symbols in this respect as long as there is some standing hook such as a person whose very livelihood involves regular exposure.  This isn't some general taxpayer standing claim though it is true that the flag affects us all.  But, if a religious symbol can be challenged, not sure what the point is there.  The two things might not have been treated the same; current events suggest if anything this is a stronger case.  

Just to toss it out there, also issues for defendants.

Mississippi’s Flag Goes to Washington

ETA: One of my regular reads to keep track of court news covered this action and suggests maybe Thomas was involved. Intriguing.  Remember, e.g., Thomas was the fifth vote in allowing a state to refuse a Confederate themed license plate, even when they had a low threshold to supply vanity plates.  Back when he spoke, he also had an extended colloquy in more than one cross related case.  So, she might be right.

According to the petition, “The message in Mississippi’s flag has always been one of racial hostility and insult and it is pervasive and unavoidable by both children and adults, with the flag flying ‘atop the state capitol, on state property, in all state office buildings, . . . at or near all public school property’ and in state courtrooms. The state’s continued expression of its message of racial disparagement sends a message to African-American citizens of Mississippi that they are second-class citizens and ‘encourages or incites private citizens to commit acts of racial violence.’”

I saw a reference about a request by the US Supreme Court to Mississippi to "defend Confederate emblem" on its flag, the last state flag with that Confederate battle flag.  There was no separate order on the page for that sort of thing. Doing some digging, found the docket page (can do a search by litigant).  The lawyer who made the claim lost at the first two levels and the state originally waived a response.  Justices want one.

It is likely a mixture of thinking his claim (a sympathetic district judge, a black Obama appointee who in details discussed the racist origins of the flag, still dismissed his standing claim fairly strongly*) a long-shot and not wanting to make too much of an attempt in these times to defend things. The appellate court skipped the history and in a shorter opinion reaffirmed that his "stigma harm" was not enough for standing purposes. It didn't accept a sort of reasonable observer endorsement test approach ala religious displays.  And, his daughter doesn't have standing either from the honoring the flag at school. So, the state doesn't really need to defend the flag as much of the lack of standing to make an equal protection argument.

The district opinion briefly referenced a Thirteenth Amendment argument, which you can find some outlier arguments made (badge of slavery) but the district court judge leaves that to Congress: "Congress alone has the right to pass legislation regarding the Thirteenth Amendment." States cannot do so to enforce the barrier in place?  That seems overboard though the second second does specifically provide it special power to enforce. Anyway, specifically, the Thirteenth Amendment on its own was not enough to provide standing here.  And, though arguably it could, Congress didn't act.  (See a discussion here for some ideas on using the 13A in a school context.) 

I would not put too much notice on the Supreme Court simply requesting a reply, especially if it turns out that it rarely is the case that the state does not offer one in such cases.  Also, again, the problem below was standing. Maybe, a few justices at least are concerned about that.  Then, they need to actually grant the case.  But, we can think about things academically here.  I do think there is a case to be made that state action is present here regarding a racist symbol that violates the Thirteenth and Fourteenth Amendment. Someone who regularly faces it should have standing if someone who does so regarding a Ten Commandment display does. This isn't merely a citizen.  He and his child have special cause to be exposed.  But, even this sympathetic article highlighted congressional legislation.

If the Supreme Court actually took the case, of course, maybe it would push the state to change the flag on its own.  Sometimes, the point is that something is a constitutional wrong, not that it necessarily is something the courts will or even should be the ones to fix. Still, at least for the purposes of standing, probably would grant him a hearing on the merits. 

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* For instance: "Moore also claims a right to "equal dignity" based on the Supreme Court's recent same-sex marriage decision, Obergefell v. Hodges.138 [lot of footnotes] "Prior to Obergefell," he said at oral argument, "I had no knowledge that I had a right to equal dignity under the law."  I wouldn't be surprised that such overheated stuff doesn't have a "really?" implied.  I would hope as  a lawyer that he is aware that the Supreme Court protected the "equal dignity" of everyone before 2015.

The district court judge did not buy that somehow the flag makes the lawyer fear for his life or affected his livelihood since he has to face it when he goes to court.  No specific concrete injuries were found and unlike viewing a religious display, purely emotional harm or "stigma" isn't enough.

The Supreme Court from Taft to Warren

A reference to a Chief Justice Stone biography by the author led me to this work, the 1968 update not really adding much new material; there is another published in 1980. The book focuses specifically on Taft/Hughes/Stone [not comprehensively] though generally supportive of the Warren Court's judicial activism choices. And, that is a major theme (if at some point rather repetitive; this book needed an editor): judges make choices, guided by changing times and rightly so. Judicial review is appropriate, but the details are important. Pretending otherwise (just saying what the law is!) is misguided and often hypocritical..

National Day of Prayer

Past entries spell out my opposition to national days of prayers "established" by federal law or executive proclamation. This includes (as they often were) in the face of national emergencies. With a 14A gloss, I'm with Thomas Jefferson on this point. These things tend to have a sectarian cast and this one is no different, especially without the extra effort by Obama to be exclusive to non-deistic traditions (if badly phrased at times as having no "faith" or "religion" as such). If tainted [general concern] by the author, a more open-ended inclusive proclamation, not tied to "prayer," was possible.

Hopscotch

Watched this amusing Walter Matthau movie again with some other familiar faces (some might miss Herbert Lom as the Russian, looking quite different from the actor's role in the Pink Panther films) about a disgruntled CIA agent writing a book. It is based on a book, which is somewhat darker. Some busted attempts though Phoenix seemed to have some potential.

ETA: Speaking of book/movies, read the book the film Breakfast with Scot is based on. The movie overall is better, including viewing things thru more than one person. Book largely skipped over the "we might lose Scot" mandatory film conflict but the film added some good stuff, including the powerful scene where Scot quietly talks about his mom's drug use.

Trump Pardons Arpaio

ETA: A few people argue the pardon is unconstitutional given the nature of the charges, in place to enforce a court judgment regarding violation of constitutional rights.  One thing that eventually came to mind was that he is out of office.  This alone makes it questionable to me that a criminal punishment is of fundamental importance to this extent.  Still, though the phrasing of "unconstitutional" doesn't convince me, I understand the overall message that is being sent.  There is a certain constitutional duty that is being violated here; it isn't just a horrible pardon. 

Racial profiling, ignoring sex crimes, and birtherism: Arpaio’s legacy 

The sheriff Trump just pardoned has done severe damage to Arizona, and to the country.

Arpaio is a Trump role model. The idea Trump would pardon him -- months before he even was sentenced -- still seemed outrageious. Yes, he tossed around the idea at a rally in Arizona, but he often is hot air.  The top punishment would be six months, but the guy is out of office and in his mid-80s.  Would he even get any prison time? At least wait .... plus, there was Hurricane Harvey in Texas. 

Arpaio was found guilty of criminal contempt for breaking a court order regarding a finding of racial profiling.  In a tweet, Arpaio blamed Obama holdovers.  The court order was handed down by a Bush43 judge while a Clinton appointee later handed down the contempt conviction.  A 1920s Supreme Court opinion said a pardon there was allowed.  But, the question itself underlines the court, not Obama, was ultimately the party behind the contempt.* In fact, a rather dubious argument (cited here) is made that in this special case involving enforcement of a court order to protect constitutional rights, a pardon isn't even allowed.

[The argument that due process, the Fifth Amendment, is an amendment to the pardon power seems off to me -- I think due process was generally accepted to exist anyhow. Plus, the importance of court process to enforce rights goes to the inherent power to contempt arising from Art. III alone.  Plus, various crimes are in place to protect constitutional rights. Why is court process here uniquely important?  Finally, it is unclear to me that other means -- such as civil contempt -- cannot be used. Plus, yes, there already is an exception for impeachment. Why assume more?]

He pardoned the guy though. Republicans need to do more than talk when he does things like this.  They have to do actions to underline that a certain level of dick-ness will have real consequences.  A Lawfare blog analysis noted: "Notably missing from the White House statement was the reason Mr. Trump gave at his political rally in Phoenix. He indicated then that Arpaio was “convicted for doing his job.” You basically got this in the press release released as well, if you did a minimal amount of reading between the lines regarding the praise of how he "continued his life's work of protecting the public from the scourges of crime and illegal immigration." Yup. Extra level of pissed off.

I shall repeat: I don't think the guy was going to be put in jail for six months, particularly now that he's out of office. So, the pardon was a full-fledged "I approve this message."  F rule of law. The pardon as a raw matter of power is allowed -- the argument above that it is not allowed is you know not likely to be made (e.g., the judge can just sentence him anyway, arguing that the pardon is illegitimate).  He will retain the pardon.  And, though I don't necessary think it's a statement of guilt [even here Trump in effect is saying he was a victim of injustice; in another case, that might actually be true], the contempt isn't taken off the books. It can be raised in a civil suit.

The fact that the pardon is not unconstitutional is not in itself conclusive. Government officials repeatedly have the power to do something without it being the right thing to do. A horrible war comes to mind. And, the reason why this is horrible has constitutional implications: it disrespects court judgments, furthers racism and even the slipshod way it was given (without going through normal processes, even waiting for the sentence) is problematic. Courts have every right now to not give him the benefit of the doubt regarding respecting court orders. Plus, it can still be an abuse of office. A pardon that arises from a bribe can be grounds for impeachment for the bribery. Like speech being used for criminal acts, this is sort of "pardon plus."

Trump is the poison that keeps on giving. This was after he finally got around to putting in place the trans ban in the military.  The courts will now get involved, but like DADT, Congress has every right to step in. After all, even conservatives like Sen. Hatch opposed the move, right?

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*  As noted in the last link related to this story, the prosecution was carried out by the Justice Department.  But, the court asked the U.S. attorney office to file criminal charges.  The court has civil powers of contempt, but has to rely on the executive for criminal charges. So, that what was meant.

The article, which I saw while writing this, discusses how Trump wanted to stop the prosecution in mid-stream, but Sessions said it would be in bad form.  But, Trump was going to pardon if he was convicted -- so heads you win, tails justice loses.  Trump's individual involvement in an ongoing prosecution to help a pal underlines his disrespect of the rule of law. 

And More: One thing that comes up is the assumption a pardon is an admission of guilt.   I don't think so -- the current law is that a pardon is a choice that it is necessary for the public good, not merely an act of grace. Still, his conviction for now was not tossed. This often happens, but a hearing has been scheduled to determine if it should be here. 

SCOTUS Watch

Among the usual pro forma orders third set of scheduled summer orders, a minor case was granted. Another order put off deciding a travel ban standing question. And, without comment, a third allowed an execution to go forth in Florida. Procedural concerns and regarding another tweak on drugs used. Timing: first white man in state history to be executed for killing a black victim. McCleskey v. Kemp, anyone?

The Three Lucys

A NYPL list led me to this touching children's book inspired by real events of the July War in Lebanon. Lucy the Fat, Lucy the Skinny, and Lucy Lucy are involved.

Woman in the Dunes

Can't handle such long movies these days, but from the scenes I saw, this is an excellent movie. It is sort of Sisyphean metaphor of our existence. The lead actress [with many roles during her long career] is particular very good, including portraying her character's desperation, passions and so on. A film for our times, including a scene where the man notes the selling of inferior sand can lead to dams etc. collapsing. "That's someone else's problem."

Charlottesville

Glenn Greenwald had a good run early on when he went after the Bush Administration (eventually) over at Salon, but eventually got tiresome, especially his inability to take criticism. But, he did and at times does provide value, including a lot of links to material that is helpful for others to use in their more short form analysis and comments. He does this as well when defending the ACLU after the problems in Charlottesville.

I know this is not the first thing that comes to mind here, including after Trump had to go all "both sides do it" when first talking about the protest and deaths arising from it (two police officers in copter and a woman rammed into by a car, others injured too).  Still, it's something that is out there, including in multiple threads about the events on this blog. There has in the past been protests that led to violence, including to fight racism.  There is room for debate around the edges here regarding time/place/manner and a special need to have the right sort of police presence, which in this case was argued to be selectively soft on violent protesters.

The overall idea from my understanding is that the protesters wanted to stage their racist show in a park [critics of "free speech zones" repeatedly speak of the need to protest where there is the most emotional salience tied to the thing protesting, such as in front of an abortion clinic or outside a convention] where a Lee statue was being removed. The city wanted it in another park, which it argued provided a better place for crowd control and the like.  This also might have made it harder for a car to ram into a bunch of people.  A judge agreed with the protesters [the ACLU worked with the conservative Rutherford Institute here; I think the latter would have won anyway, without the value of the ACLU presence].

I would need to examine the facts to really tell if a compelling argument was present that the different in locations was worth the First Amendment penalty of not having the protest in the original location.  I might be wrong, but am inclined to think the nature of the protesters and so forth had potential for problems either way.  It is simply a danger we need to accept on a certain level or again various other protests that led to disorder would have been blocked too.  Still, I'm open to the idea that the size of the crowd etc. warranted another location. As to them being armed, local law apparently allowed that, but it would to me likely be appropriate -- especially in a "sensitive place" like a crowded park -- to not allow.

The monuments should go. Some of them simply should be trashed; others transmitted to museums, battlefields, and cemeteries. The heroism and losses of Confederate soldiers should be commemorated, but not in everyday public spaces where the monuments are flashpoints in poisonous racial contention, with white nationalists often mustering in their defense.

There is also the issue of taking down Confederate statues, which was the subject of an eloquent speech by the mayor of New Orleans.  I'm not gung ho about self-help here, though it isn't top on my concerns, you know, property rights and concern others will decide to take down stuff I like etc.  The statue there honored Confederate soldiers, which is better in a fashion than a Lee statue, but honoring fighting for treason in front of a courthouse seems a tad off.  I do think there is a place for statues and other displays with the proper context.  The displays in place are selective honoring of racism and defense of slavery.  "Southern heritage" is not about five years, is it?  But, simply destroying them all might not be necessary.

[The link is from National Review, which had it right at times. I'm actually not totally on board with tossing out Roger Taney, who was after all a Chief Justice of the U.S.  Perhaps, his one opinion -- actually not a unique expression of his views on slavery -- damns him.  And, giving a honor of dominating an area as compared to one of many representations of Maryland history etc. is a problem.  Still, perhaps, he is someone who with the proper context might warrant a statue though the context might not please some of his supporters, at least past ones.]

The Unite Right rally was somewhat counterproductive for the participants though they did have an enabler in Trump. A range of Republicans, including very conservative ones, spoke out against them.  Their message of hate was strongly denounced.  I appreciate such criticism though the Republicans enabled them all the same, including by supporting Trump.  The march again showed the value of promotion of truth in collision with error (the metaphor has dark implications here).

Finally, the crash is being investigated by the Justice Department and the details are not all clear.  I'm inclined in these situations, unless there is a problem, to let local authorities punish the wrongdoer. I understand that a national interest against inequality and national freedoms are at stake too. And, here, the person from my understanding came from out of town.  

Building a Bridge

The author is a Jesuit priest who was on the Colbert Report (don't think he was on the current one; too bad) and wrote books on humor and advising an alternative play on the trial of Judas Iscariot among others. The subtitle of this book is "How the Catholic Church and the LGBT Community Can Enter into a Relationship of Respect, Compassion, and Sensitivity." It is in effect a speech/essay to a unity group (it's a two way effort) plus some bible story lessons (and a prayer for someone struggling). Nice effort though an uphill battle as long as the Church is not fully loyal to its no "unjust discrimination" doctrine.

Book and Film Review

Read the quick reading Guest of Honor: Booker T. Washington, Theodore Roosevelt, and the White House Dinner That Shocked a Nation, which is largely lead-up, coming from both ends. Author is an amateur historian of the era, so it isn't as deep as some might like, but is overall a good read for the average reader. Also, watched the rape exploitation film Lipstick (well most of it), particularly notable for Mariel Hemingway's supporting performance. It is professionally made etc. and knows how to play with your emotions.

August

More blah. Some are on vacation this month. I'm not. So, it's just hot and unpleasant.

ETA: Oh, got around to seeing Breakfast with Scot again. Enjoyable film with some serious stuff going on, including dealing with being different and being okay about it.

Trading Deadline

Yanks trade for two good starters; Mets trade Duda and Reed for prospects. Haves, have nots. Small scale, the Mets seem to have received a good return and long term, Addison Reed was a great pick-up, especially since he was good longer than Salas. Rookie Rosario is coming up tomorrow and Smith is due soon. More moves likely via waivers though wish more old news moved on already. Playing for the future; even picked up a reliever to replace Reed that will be here next season. Goal, not easy, will be .500.

ETA: First waiver deal -- Jay Bruce for his salary, low level pitching prospect and fan disappointment/abuse.

Saving ACA

After a West Coast Mets game was over, I was watching C-SPAN waiting for the vote for "skinny repeal" of ACA, which turned out to be a drawn out process that ended with McCain voting with Collins and Murkowski (two consistent "noes") against it. Many were upset at McCain for coming back after his cancer prognosis and voting to continuing the process. The whole thing was screwed up but the end result is appreciated. And, there 48 Democrats and three Republicans did the right thing. Lots of battles to come. But, whew. And, as a whole, Republicans still are horrible. Individual Republicans doing things like this are appreciated.

ETA: CJ Roberts was key to saving ACA so this gives me a chance to note the updated SCOTUS website. Sorta underwhelmed. SCOTUSBlog eventually talked about it, but in underwhelming fashion. Uh. They already had Internet links cited, access to transcripts, audio and other case information.

Trump vs. Trans in the Military

I recently read a small book with four case studies entitled Beyond Trans: Does Gender Matter? that was interesting though probably could have been longer to deal with the somewhat absolutist position. Today, on the anniversary of desegregation in the military, Trump tweeted trans "in any capacity" cannot serve in the military. The cost reason offered is specious. It's a blatant wedge issue move. This after over twenty House Republicans joined the effort to vote down a ban on the Pentagon paying for gender transition.

Ohio Death Watch

Ohio is somewhat curiously a major death penalty battlefield these days. Sotomayor continued her dissenting effort to enforce some oversight (here the district court held a trial was warranted over drugs and it was upheld before an en banc court overturned) with RBG joined her ("RBG and Sotomayor, dissenting" again). Justice Breyer was surely sympathetic, but left it to her statement, while focusing on other death penalty things himself.

ETA: Ronald Phillips (child rape/murder at 19) was executed. The mother's case is tragic too. The other executions (double robbery/murder and drug influenced murder) are pending.

TV Update

Story of a Girl was Kyra Sedwick's first directorial effort and had some familiar faces (her daughter, "t.v. husband" and actual husband had supporting roles). It involved a teenage girl affected by a viral sex video. Overall, very good, including the supporting roles. Grantchester had a good episode too. "Leonard" showed some toughness again. One episode in season left?! Meanwhile, late night baseball this week, and trading deadline watch.

Update: Started to read the Grantchester series and wasn't that interested. So, not sure how loyal the later episodes are though saw a reference they aren't in some fashion. The t.v. movie is mostly loyal to the YA book though a few interesting tweaks such as her choosing to post the video online. (The book was written in 2007 and doesn't use any phone/net/video referenes though even in 2007, there was some potential there.)

Trump Judges

Looking at poll data, a major factor for Trump voters (30% or something) was judicial nominations. McConnell, after another failure on screwing health care, pointed to Gorsuch. There also has already been some other nominations, many well praised by resistance lawyer types, but consistently conservative. All are tainted by the nominator. The first confirmed is someone we heard little about though fits the bill, in the less known but often controversial 6th Circuit. The second was John Bush, a tool that was prime Trumpite bait. The fact not a single Republican voted against them reminds us the state of the party. The courts, including the Supreme Court, will be tainted for a long time with these people. Kill me now.

Pardons

[H]e shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

There are reports (denied though it both is proper to cover all the bases and his comments imply he has been briefed about the matter) the Trump Administration is examining pardons of family members etc.  This could interfere with the Mueller investigation since that is tied to prosecution (showing that Congress still has a role here) though be hard to totally stop it. There are even reports of the suggestion of a self-pardon.  Meanwhile, the ability to indict a sitting president is itself not a total non-factor. This led me to investigate the issue some.

[I provided links that argue both sides of the no indictment of a president during their term and find the argument for a complete bar weak. This is particularly the case if the punishment does not involve detention or such imprisonment is put off to after they leave office. Realistically, if it ever was used, it would likely be used in blatant cases.  Or, maybe for minor cases where punishment would not interfere.  This includes any warrant for arrest -- if the president refuses the warrant, who's going to force him?  But, yes, we shall see if something pops up eventually.

The Constitution has limited explicit immunity but I can understand some implicit arguments being put in place. But, a total bar, especially with a vice president being available to serve if the president is unable, is needlessly extreme.  This leaves concern for state prosecutions raising some sort of federalism concern, which is being argued in Trump's state civil litigation.  But, if he actually murdered someone on Fifth Avenue?  Why shouldn't he be subject to NY murder laws? Citations to the Supremacy Clause only are question begging as to what the Constitution actually requires there.] 

The last link notes that there is some problems for Trump if uses the pardon power, particularly because there is no immunity if there is no liability per the Fifth Amendment.  The pardon power only applies to federal crimes, but not too many of the people (though Trump himself is not included here) probably don't have much to worry from state prosecution. The link also notes (as do others) that state investigation is an alternative route here as might be private lawsuits.  Also, a pardon might be done via a bribe etc., and grounds for impeachment or even criminal action.  The pardon itself won't be negated, but like "speech plus," something might be actionable.  Finally, a pardon might violate some other constitutional limit, like only pardoning Catholics. The link argues the pardons would hold but the president might be targeted for the constitutional violation.  Maybe so but if someone told me establishment of religion was inherently void, I would not find that an unreasonable argument either. The 1A came later. 

This brings us to the differences between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance a confession of it. The former has no such imputation or confession.

This was cited by a law professor, a 1915 Supreme Court opinion (Burdick v. U.S.)  in which someone actually refused a pardon to avoid needing to testify.  I find that statement as overboard. Consider, e.g., an amnesty after a rebellion of some sort [Federalist No. 74 cited such a case "to "restore the tranquillity of the commonwealth"] to avoid the trouble of having specific hearings of innocence and guilt.  I'm not sure that we should impute guilt in each case.  Finally, in the 1920s, Biddle v. Perovich sets forth another view:

A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.

My reading of this is that a pardon, minus a conditional pardon where the person has to do something (e.g., a drug treatment program), is not something a person can refuse.  It is not a "private act of grace" [cf. Chief Justice's framing in United States v. Wilson, where someone refused a pardon for strategic reasons -- Burdick discusses the background.] This is not to say that a pardon does not generally imply guilt.  But, if it is done before prosecution, perhaps for reasons like President Ford to move on as a nation, or maybe in fear that a future prosecution will be unjust, why should guilt necessarily be inferred?  One article cited said:

While a pardon is widely understood to lessen the social stigma that attaches to a conviction, all else equal, pardoning authorities assume that the applicant was guilty as charged and properly convicted, at least in the absence of an exceptional showing of innocence or miscarriage of justice.

And, I think this in a useful qualifier. The matter of self-pardons was addressed in a link above, but the basic idea is two-fold. One, "pardon" implies that someone is being pardoned, it is not a solo action. Two, there is the overall principle that someone should not be the judge of their own case. This might not be some absolute rule, but there doesn't appear to be a reason for it to apply here, especially with the first aspect.  There does not seem to have been any understanding, nor should we have one (since original understanding to me is of limited note) of that being possible. It might not be deemed likely this would come up but at some point a president might be prosecuted and a pardon could interfere. 

The limit involves impeachment. It's somewhat interesting since at first blush I wondered how it would come up.  Isn't the point of impeachment merely to remove people from office and perhaps ban them from future ones?  But, such a burden very well might be of the type possibly a pardon would erase, since they also erase other barriers such as not voting. Also, it was suggested by Joseph Story that it would be used the President to help cronies who were impeached that they themselves conspired with in some fashion.  Finally, the Constitution also says:

the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.

So, once impeachment begins, the pardon power cannot be used to interfere, which basically so far only arose in the case of federal judges. (Andrew Johnson wasn't going to be prosecuted, leaving one other case.) And, even there, the general trend was that they were impeached after being prosecuted (one exception that comes to mind involved a judge during the Civil War).  But, if impeached first (since it is a congressional power, it would be curious if it was reliant on executive prosecution anyhow), the president would seem not to have the power to pardon the person.  And, it is quite possible that even if that president didn't want to prosecute, the next one might wish to do so.*

[If the president does pardon a federal official open to impeachment, it would seem to me that the Congress still has the power to impeach. Again, impeachment is a political act tied to the office, not a criminal prosecution.  That extra provision interestingly suggests removal by impeachment "shall" mean the person is liable, limiting the pardon power, a criminal matter too.  The pardon holds, since it was done before a case of impeachment arose, but it still wouldn't negate the impeachment power. OTOH, any criminal liability would be waived if covered by the pardon.]

The concern in recent years was that presidents have been too lax in use of the pardon power.  There were a few cases where it was felt that the power was used dubiously (e.g., George Bush with certain Iran-Contra personnel, Clinton with Marc Rich and Bush with Libby).  That sort of thing is going to happen.  Some states put more restraints on executive pardon power, and it might very well be a good idea to have some limits. OTOH, again, the general problem is that there is not a good enough process in place to use pardons and reprieves in a more effective fashion. Still, even a drug prohibition opponent would question an across the board pardon of every single non-violent marijuana offense.

That sort of thing did arise when one or more governors blocked the death penalty, but it is part of the balance involved.  One can argue that the requirement to faithfully execute the laws guards against total abuse of the pardon power.  As noted above, certain crooked pardons can be targeted as well.  Trump does potentially have broad discretion for cause trouble here, though prosecutions are not really of immediate concern. It is more bringing out all that happened and provide some real consequences. It is quite possible that someone will be subject to prosecution here, but not holding my breath that Trump Jr. or the like actually will be.

Finally, I mentioned impeachment. That too has been rarely used, but it provides an overall principle of limited government.  It also provides a lesser power to investigate as does other things.  Congress, e.g., has an interest in safeguarding federal elections and determining possible ways to do so will be assisted by investigation. Meanwhile, Mueller is investigating which is a primary driver of the reports we led off with.

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*  One thing I saw was that the provision leaves open prosecution without double jeopardy being a concern.  The provision came before the explicit bar was in place, but it was a generally understood limit. Plus, even now, someone removed by impeachment cannot claim that's all that is allowed.

Pardons/Impeachment/Spicer Resigns etc. etc.

So reports (of course denied though there is nothing really wrong with being fully informed) of research on pardons and impeachment (Arthur Goldberg, in part raising something blocked by Nixon v. U.S.) talk continues toward our major constitutional live action dialogue. It is all amazing, horrifying and various other things. It is also so easy to be caught in it, mesmerized by ongoing events. This year for me personally leaves a lot to be desired and this isn't really helping. Anyway, a bit of poetry. The one about "Diane" is touching.

Repeal/Replace of ACA Blocked

For now, it appears that the attempt to repeal/replace (or just repeal) ACA has failed in the Senate. Certain Republican senators opposed it as too mild but some as too harsh. Strong opposition mattered. A good victory to help continue fighting. Meanwhile, I'm sorry about John McCain, but also about others who have to deal with cancer. Especially those who are worried about costs. McCain helped how in that respect? And, it is not uniquely "horrible" some older person having cancer. A child? Yes. A bit tired of the level of responses there.

ETA: He suffered in Vietnam. Sure did. Do we hear about other survivors dealing with cancer like this? His service in the Senate has been tainted, especially lately. Sorry.

Summer Orders (1)

Less than two pages; rehearings denied & one attorney discipline notice. Much more important is possible pending clarification of travel ban order. SCOTUSBlog again refused to notice them but did see at least one legal twitter mention.

ETA: And, we got it. Family relationship part of district judge order holds. Broader refugee aspect of that order stayed at least until 9CA decides. Oral argument separately set for second week of October. No overall clarification. Gorsuch three wanted more.

Grantchester

With John Oliver on break and not being a fan of thrones, this is the one Sunday evening watch left at the moment. Too much drama this season -- three of the characters having relationship difficulties involving conflicts between "right" and "wrong" couplings apparently not enough, this one had the landlady's miscreant husband pop up. Is there one happy family in the area? Overkill hurts since the show remains enjoyable overall. The new archdeacon character also provides good bite though the show stacks the deck against him.

The L Word

I don't have Netflix (need to get a free month again!) and for some reason NYPL doesn't have the second season (the third is now over!) of Jane The Virgin. So, started on this, though had some DVD scratch issues. First few episodes are pretty good (yes, up and running on the explicit scenes) though Jenny already is a bit insufferable. Like Dana (I saw what happens. Unhappy face.) and Alice particularly. Alice was to be on an unaired spin-off that dealt with the "who killed Jenny" sixth season question. Talk of a reboot.

ETA: Yes, Jenny is tiresome, but the creator apparently based it some on herself. Explains why we see more of her at times than characters I personally rather see. Jennifer Beals, otoh, has some powerful moments. And, she does hot very good too. Season finale has some strong emotional moments, more than one heartbreaking. Some slow moments, but good show so far overall with some sweet and funny moments. Many familiar faces.

Partisan Gerrymandering

Charles Fried, a conservative on the right side of some things (privacy outside of abortion, PPACA outside Medicaid expansion etc.), targets partisan gerrymandering. Structural issues is a big picture thing that the Resistance has to address long term.

SCOTUS Takes Break from Break

With RBG/Sotomayor dissenting, SCOTUS stayed the injunction to a state law regarding pressure on pregnant women to obtain treatment as a child welfare measure. A lower court struck it down and it is being appealed. As usual, neither group of justices explained their reasons. Summer order schedule should be here soon. ETA: Summer Order Lists dates.

And Also: For some reason, including after I specifically emailed them, SCOTUSBlog in the past didn't want to list the scheduled order lists on their calendar. The blog does more now to specifically summarize orders but has not separately addressed either thing.

Virginia executes William Morva using controversial three-drug mixture

When you think "worse of the worst," a man who killed a hospital security guard and a sheriff’s deputy after escaping from custody might count. But, there were concerns about his mental health, so much that a victim's daughter opposed the execution. I respect that the governor weighed public duties with private beliefs against the death penalty. No orders on this case over at the SCOTUS website. Secret compounding pharmacy used.

Our Declaration: A Reading of the Declaration of Independence in Defense of Equality

Re-read this book, which I already discussed a few years back, and again found it rewarding. Got a bit tedious at certain points where it seemed she was rambling some. But, has some good insights, including basically a way to apply it for atheists (focus on "nature" over "nature's God"). Central argument was how the document promoted equality, including each person's equal role in the collective "people" involved here to govern (basic to human rights existing itself), determine wrongs that warranted change and so forth.

TV Watch

Don't watch much t.v. these days and felt Veep had a very disappointing season. Better Call Saul was somewhat mixed but more enjoyable though continuing its go it slow style. Sunday now has two mysteries -- Grantchester (good start, one eh episode after first three) and a Prime Suspect prequel (two episodes at once; first pair good). Caught two episodes of The "L" Word, repeats regularly on Showtime. One episode good. Last Week Tonight had a good episode before its short break, including a parody of a Harding movie (show bought five wax dummies of presidents, one used here). And, there are the Mets games.

ETA: Second episode of Prime Suspect bored me / turned it off.