SCOTUS Watch: Kennedy Retires

And Also: Meanwhile, a pro forma ruling rejecting a last minute death penalty appeal (means of execution); he was later executed. One of those on principle cases. [Edit] This SCOTUSBlog summary of the clean-up order should replace my previous comments, including notice of a grant of a case to examine the "dual sovereignty" double jeopardy rule. A few notables.

The official end of the term seemed to mean another year before any justice would voluntarily retire though people were careful to note that there was still a chance a retirement would come down the next few days etc.  The only thing that was expected was a catchall order (that might have some interesting statements from justices on various sues) and later on there will be three scheduled summer order days. Time for justices to plan their summer travel schedule and that special Senate summer session to be spent filling the lower courts and other Trump nominations.  If only, right?

As noted by Richard Hasen over at Slate, Kennedy seemed in the mood to retire, including never joining the liberals in a 5-4 ruling this term (Roberts wrote the key ruling there, the Carpenter cell phone data case even if Gorsuch seems to have joined with him in spirit).  An aside there: Hasen joined with others back when Gorsuch was appointing opposing a filibuster, arguing that if you waited until now, that one or two Republicans might join with Democrats. But, they still could on the up/down vote, plus the case was stronger there given Garland. Meanwhile, there were grounds to go all out to fight the norm breach and support their base. Hasen however promoted the b.s. idea the Democrats got on benefit for it. Tweeted his article on point repeatedly.

Kennedy's last opinion for the Court was the Wayfair tax case of some significance though one where only one liberal joined his decision, Robert joining the others in dissent. His last personal opinions were concurrences appealing to governmental self-restraint (Muslim ban) and arguing requiring basic disclosures in crisis pregnancy centers and advertising was some grave threat to liberty. Toss in him yet again not dealing with partisan gerrymandering and avoiding deciding the basic issues in the same sex marriage bakery dispute, and you have someone in his 30th year ready to retire. Anyway, after we thought the justices were done, Kennedy released his retirement announcement (official end of July) and his colleagues their kudos. Charming.

I viewed Kennedy basically as a matter of the likely alternative -- the Reagan justice allotment was (roughly) a Nixonite, a Federalist Society type (who grew into a FOX viewer), pragmatic conservative and Kennedy. The guy we got instead of Bork.  On that level, he did some good though we can cite all his low points too.* Didn't expect much, so you know, okay. Felt somewhat more positive about him than some here. But, oh boy, did he end badly. This term, Roberts if anything stepped into the reasonable conservative role (as far as that is possible) a few times.  Masterpiece Cakeshop as the one time Kennedy sort of stepped in, and it was a special case given his gay rights concerns, and a mixed bag too.

Kennedy retiring in 2015 would have been looked upon somewhat kindly. But, now? He's a Trumpite or a Republican, same difference. Not joining a single 5-4 liberal ruling this term fits the character of them now.  Chris Hayes said it best there. Even the means he used (the standard there is to do so in open court, so to speak) -- as if he was embarrassed or too tired to care -- to retire was pathetic.  Mind you, things will be worse with his replacement.

Hard to expect his former clerk to be truly honest here, but don't buy this approach, especially given Kennedy himself viewed his role as a public duty.  No, he doesn't have carte blanche morally to retire whenever he feels like it.  Understand the negative take here, but don't really think the "he argued gay rights badly" approach holds up that well. Was the privacy approach, unenumerated rights after all involved, in Griswold and Roe wrong? RBG using equal protection alone, which Kennedy did mix in, wouldn't sudden strike down conservative opposition. Ultimately, results are what counts here.  Other points stronger.

What the future will hold is unclear, including abortion rights. The level of horror and despair is understandable, but what will happen in the end? Who knows. For instance, I think same sex marriage is here to stay, Roberts joining more than one opinion that in effect said as much.  The Texas law that Kennedy thought too much is the type of thing Roberts et. al. would support; less so some ban that doesn't allow abortion at eight weeks or something.  But, who knows, and there are various loopholes that we can imagine will now be allowed, trans rights in particularity dubious.

Around ten cases turned on Gorsuch, only one supporting a liberal result (dealing with immigration defendant rights), so crime paid there. The thing to do is for Democrats not to allow a vote until after the new Senate seats. Let the people decide! The fear is that the Democrats won't win the Senate and maybe this will even help rally the conservative troops. The basic thing is not to legitimize the pick here, especially if (as generally happened) the seat is a conservative seat that shifts things. Hard to imagine the person will be as much as a tool as Gorsuch, but Alito is no prize either.

So, we are waiting on who the nominee is to replace someone who might be around until c. 2050.  Mixture of anger and depression, especially as the usual suspects, including lead troll Mitch McConnell, is looking on gleefully.  It was insane to confirm Gorsuch as the Russian Investigation went on. It still is and the evidence is if anything more blatant. The Gorsuch Seat is not legitimate.  This seat is not either at the end of the day. Fruit of the poisonous tree and all that. Let those who can do what they can, the fight one for the future, Republicans not giving quarter even in losing battles. In the end, they won though.

Compromise now is both ideally and pragmatically equally a dubious proposition though the usual conservative Democratic suspects in tough red state races very well will.

ETA: It has been discussed in the past that  Trump's kids have some connections (including Ivanka) with Kennedy, but Kennedy's son being involved in Trump banking business in the 2000s is less known. Not secret or anything, but less known. Him retiring also is bringing back and leading to a fleshing out of such connections and attempts like picking Kennedy clerks to lower courts and the like. 

This isn't conspiratorial stuff but it's notable. Still, various people on Twitter, liberal minds like Rick Hasen, the primary strongly liberal guy at Slate Jurisprudence and others are simply appalled some are suspicious.  Hasen, e.g., leads with how he's old and tired. Suddenly aged the last couple years, huh?  It's quite understandable a conservative wants to be replaced by one, especially one who doesn't trust Democrats probably, but the whole story is worth talking about. And, yes, see Citizens United, these financial connections are going to make people suspicious. 

There seems to be some degree of overcorrection. The same with one person appalled at talk of court packing. Who knows that that will bring? It's at this point just talk, something at most to threaten if yet another conservative troll type is put on the Court while Trump is under investigation. But, saw some liberal leaning law professor appalled at "anything goes" talk because Republicans are "evil' or something. Calm down. Person even said she agreed Garland's seat was stolen. Okay. Well, at some point, painful hardball tactics will at least be brought up!

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* It is not simply that he "liked teh gays" or something. See, e.g., his opinions on the death penalty (though in the lethal injection cases he silently drew a line at a broad attack). And, as the swing vote, he even put limits on things like his concern about use of race consciousness. Bush v. Gore and Citizens United would be two low points as would announcing the joint dissent in the PPACA Cases. His sanctimony and purple prose annoys but the former at least seemed to be honestly earned.

SCOTUS Watch: Waterworld

Only retirements announced were staff, but we did have two more 5-4 rulings. First, public unions (Alito v. Kagan) which some might think can be mild in result but thinking on principle it will have staying power. Kagan, not known for hyperbole, will not "sugarcoat" this selective concern for the rights of public employees. The last opinion was a state water dispute, Breyer v. Thomas, but Kagan joined the three top conservatives this time. Orders tomorrow.

Meanwhile: Horrible Mets season (though they actually won last night) alert: Sandy Alderson takes leave for (cancer) health reasons and figures on merit it should be permanent.

Update: He did retire. Will comment tomorrow.

Alexandria Ocasio-Cortez

I often vote for the challenger largely as a protest vote but this is a challenger year. In the year of three NYC primaries in my case (state/federal and one to fill a vacancy), today was federal Election Day. A long term incumbent was threatened, someone who was talked as the future House Speaker. Like his predecessor, seemed to focus on Queens, not my area of the Bronx. He lost to an under 30 Latina from the Bronx. Go get em!

Update: Can't forget about Mitt "Trump supports me now but hey I'm independent!" Romney winning the Utah Republican Senate Primary. Oh, at his concession party, Crowley (while playing the guitar) sung "Born to Run" in Ocasio-Cortez's honor. Classy.

SCOTUS: Korematsu Overruled But Spirit Lives On

Ugh. Justice Breyer dissented from the bench twice today and Sotomayor joined him on the second. 5-4 in both cases, travel ban (Roberts; Breyer/Kagan on more limited grounds but if necessary agreed with basics of the stronger dissent) and crisis pregnancy disclosures (Thomas v. Breyer). Korematsu was explicitly overruled, but by upholding the travel ban, its spirit lives (animus handwaved) on.  We are left to being glad past court action watered down the ban and the test applied by the majority could have been worse.

There was a compelling need for that CA law too. The results are especially bad on principle -- Trump is emboldened and treating anti-abortion differently for 1A purposes continues. Unlike during the Bush years, Kennedy in a separate concurrence relies on Republican good judgment. He's a stand-up comedian now. Also, he is appalled at the California disclosure law, while not caring about numerous slanted anti-choice laws much harsher.  People have noted that he had not joined one 5-4 liberal decision this term and is showing signs of being ready to retire. 

BTW, there is a sort of "to be continued" nature in both cases. The lower court has a chance, e.g., to uphold the California law on remand. Not likely, but maybe in part; then the state can tweak the law. This being Democrat controlled California. The travel ban case might also come back, especially as applied. But, "Trump wins" matters here a f-ing lot. And, the Supreme Court failed today. Now it is for us. And, further litigation!

SCOTUS: Another Punt & Two 5-4s (#StolenSeat)

Quick summary with more cases to come. Orders: Arlene Flowers sent back (without comment), which could have been done right away. Sotomayor (with RBG) statement in a death penalty case. Various technical grants. Alito v. Sotomayor on Texas voting rights case. Thomas v. Breyer (dissent from bench) on anti-trust regarding credit cards. Both 5-4.

Of Plumber's Nieces and Amish Daughters

I read this after reading a NY Review of Books article about the director of the movie version. It is by the writer of the children book series The Rescuers but she also wrote many adult novels too. It is somewhat low key but has a tongue in cheek and is overall fun while having a diverse cast. Nice read with so much **** happening. Meanwhile, The Night They Raided Minsky's was good too, especially as a loving recreation of the world of 1920s burlesque.

SCOTUS Watch: Cell Phone Records

A bit more on yesterday.  First, some on the flags that Chevron deference is in trouble.  Net, I agree with the analysis that generally liberals will lose more, especially since they tend to be more supportive of regulation with exceptions likely to raise constitutional implications that can be handled in another fashion (vs. economic regulation).  It just might be the case that a constitutional amendment is needed to clearly protect the administrative state.  Anyhow, the case where Kennedy flagged his concerns also had Sotomayor use "non-citizen," having noted in the past she rejects "illegal alien." 

SCOTUSBlog Summary:

(1) Police need a warrant to get location information from cellphone tower sites (opinion in Carpenter here)
(2) A defendant who consents to sequential trials for multiple, overlapping offenses loses double jeopardy protection (opinion in Currier here)
(3) Simultaneous service by judges on two military courts does not violate the dual-officeholder ban (opinion in Ortiz here)
(4) Damages for overseas infringement of a domestic patent include lost profits for overseas contracts the patentholder would have obtained if the infringement hadn't occurred (opinion in WesternGeco here).

The big news (if expected) today -- the calm before the storm for liberals apparently -- was that Chief Justice Roberts expanded upon a cell phone privacy case that received broad support to cover cell phone location records and this time had 5-4 split.  I wondered why a case argued in November was taking so long.  The fact each dissent was about twenty pages might explain it.  The day after joining three, Roberts in a rare case wrote an opinion only joined with liberals, Justice Kennedy more concerned about privacy rights outside of the criminal context.

The potential reach of this opinion is broad, Roberts accepting that the Fourth Amendment protects "privacy" as well as property. This is notable in part because he joined Scalia's property approach in the U.S. v. Jones GPS case, while Alito took the privacy approach  with three liberals while Sotomayor joined both approaches.  Alito's approach in effect allowed him to use a sort of balancing test and finds ways to differentiate here.  Roberts also underlines something I noted in the past -- even in public areas, the Supreme Court left open the potential of problems for 24/7 surveillance. Cell phone tracking these days can provide pinpoint tracking of location here, which can result in determination of a lot of personal data.

The split is somewhat less complete as it might appear because at least some of the dissenters recognize broad Fourth Amendment protections. Justice Gorsuch, e.g., uses his property approach to question the "third party" doctrine (see Kennedy link) which leads to potential agreement with Sotomayor's GPS concurrence.  Alito would in certain cases recognize a violation of the right to privacy though past cases (such as involving dogs on front steps)  suggests not to rely on him too much.  Orin Kerr has more.

One other important principle, which also was expressed in yesterday's tax case involving e-commerce etc., was how changing developments shifted the proper application of basic principles over time. This is basic so-called "living constitutionalism" which should really be called "law" since that is how things are normally applied over time.  And, Alito's concern about private bodies invading privacy is fine; regulations properly address that and when the state action is involved, the Fourth Amendment kicks in.

"Interestingly enough, Currier is the fifth time Justice Gorsuch has written a majority opinion in a 5-4 decision this term. (That's five out of seven majority decisions he's written this term.)" Other than that, not sure how important the double jeopardy case is, especially since Kennedy didn't join its broadest reach. A reminder about the importance of the stolen seat and Gorsuch's rather active role in his first full year. 

Another strange bedfellows is in the patent case, Thomas writing (he is a common go to for boring issues) but Gorsuch and Breyer (who wrote a book on the courts and the world) in dissent.  It seems like the Supreme Court has handled a reasonable number of patent cases lately.  This is one of those cases that very well might be quite significant if somewhat technical (including for the consumer), but it's a patent case. Like,IDK. The military courts case also appears of some importance by length alone (Kagan -- forty pages, Thomas concurring -- ten pages, Alito/Thomas -- thirty pages). Second big appointments case for Kagan.

SCOTUSBlog has more. Six more cases, probably over two days, next week. Multiple big ones with one or more likely to go badly.

SCOTUS Watch: Tax Day

Also: Two more seasons of Jane The Virgin are finally coming to my library system, but also saw I Am Not Your Perfect Mexican Daughter pop up in a search. It's overall a good book (think it might have been best a bit shorter) about a Mexican teen (like the author, with undocumented parents) whose sister dies in an accident; she has various growing pains and mental health issues.

SCOTUSBlog summaries today's opinions:

1. States can charge out-of-state retailers sales tax, at least in some circumstances, even if they don’t have a store or warehouse in the state, clearing the way to allow sales taxes on internet purchases (opinion in South Dakota here)
2. Administrative law judges at SEC are “officers” of the US for purposes of Constitution’s appointments clause; ruling means that their appointments have been unconstitutional (opinion in Lucia here)
3. DHS notice ordering noncitizen to appear for deportation proceedings but without specifying date or time does not stop clock for purposes of length of time spent in US & therefore eligibility to avoid being deported (opinion in Pereira here);
4. Railroad employee’s exercise of stock options is not “compensation” subject to railroad retirement taxes (opinion in Wisconsin Central here).

The most direct effect for the average person, if one Congress can change if it wants (it not doing so for years notable), would be the Internet tax ruling.  Justice Kennedy wrote the opinion which logically changes the law on the question though CJ Roberts dissent makes some good points [including Congress' ability to address the matter and the complications involved] with three liberals going along. Not a usual match-up.  I guess when you have a dissent, already something likely to be a bit loose and have two of the best writers on board, the fact it was easy reading is not surprising. This includes some amusing examples on the complications of online retailers applies the nuances of local tax laws such as Twix v. Snickers.

Kagan wrote the second opinion, which might have wider implications, if ones that she might not always go along with. Breyer joined on in part, not wanting to reach the constitutional merits and to apply it narrowly. Sotomayor and Ginsburg in dissent. Generally, I lean toward the sentiments of the last three, if possible, inclined to make these political questions as much as possible. When recess appointments were up, e.g., I was inclined to avoid the issue entirely though Breyer's limited opinion had merit. Anyway, this is bound to be a "to be continued" matter.

Sotomayor wrote the third, one of many opinions where the Supreme Court in recent years at least somewhat softened the edges of immigration law. Justice Kennedy had a concurrence that excited some people since he flagged an interest to at least temper "Chevron deference," which a few justices would use to strongly open up agency judgments to court review. He probably wouldn't go as far as others might go, but does this mean he wants to stick around to help decide? Alito dissented alone.

Gorsuch wrote the fourth notable perhaps for being a 5-4 decision, the fourth (by SCOTUS reporter Kimberly Robinson's count) he wrote. This is rather curious for someone in his first full year on the Court.  I don't think they all were strictly liberal/conservative, though more than one was, as was this one.  It included usual Gorsuch annoying word style. Ultimately, I really won't pretend to know who is right here, but it showed that statutory language is open to reasonable debate. This is one of those cases where an answer is determined, if one not compelled by any means, and that is probably more important than it necessary being the "right one." For support of the dissent's version see here.

More tomorrow and SCOTUS has more opinion analysis.

Kids Taken From Their Parents & Withdrawal from UN Human Rights Council

ETA: As I wrote this, there was talk of some executive order (though we were assured this couldn't be done and no policy change was in place anyway -- who are we at war with again, Winston?) in the works or something.  One was released that seems to have some effects though how much is unclear.  One problem would be its intent to change rules that only allow short term detention of children. And, what about the over 2,300 (2300!) children already separated?  People have cited loopholes in the text. Again, fine print and good faith of the parties.

The latest Trump cruelty, involving children as young as babies (Rachel Maddow broke down reporting them being in "tender age" detention centers), involves separating children from undocumented immigrants.

As Chris Hayes, who also took this very personally with a new child and all (and because he has human empathy), tweeted, it is a form of ransom. Pass my preferred immigration policy or else.  This is an optional but possible approach given long term policy, which doesn't justify the usual Trump "it's the Democrats fault" b.s.  It does show the problem with such policies and institutions writ large; there is always a chance at some point a bad actor will arise or a tragedy and so forth.  It's a loaded gun in the dresser drawer.

Every Democrat in the Senate signed on to a bill to specifically deal with this tactic, but thus far, concerned blather aside, no Republican co-sponsors are on board. Darn thing even respects local discretion over child care policy, so federalism types should be happy (I know, I know).  There is talk that there is pressure in the Administration -- given the blowback on this matter has been huge though unfortunately recent poll numbers suggest not enough -- of changing the "zero tolerance" approach.  I would suggest looking at the fine print and remembering this was a self-inflicted wound.

And, the loaded gun is still there. It is fine to think long term though with this asshole and his enablers in power, I question what sort of legislative solution is possible.  The issue is bigger than this one matter and we can go the "Obama was bad" route some (ignoring the DACA and Dreamers stuff etc., expecting him to do more, as will occur when the sane regain power). But, like with torture and waterboarding in particular, lines should be drawn regardless. This thing is just too big. There will always be a lot of executive discretion. But, certain lines should be there.

Plus, can we cut the bullshit about how "the left" or something are exaggerating?  At some point, the level of the problem needs to be recognized and the realization "both sides" aren't the problem on a basic level. We had this with a previous statement involving "animals" that people assured us only covered MS-13 gang members.  Now, in gambling in Casablanca level news, we have this:

"Democrats are the problem," he wrote. "They don't care about crime and want illegal immigrants, no matter how bad they may be, to pour into and infest our Country, like MS-13. They can't win on their terrible policies, so they view them as potential voters!" he wrote.

People at the time put Trump's "animals" comment in a wider context, even just going by the immediate context of the remark. But, you even had people like Kevin Drum of Mother Jones (who back in the Bush Era, the things I recall, at one point noted he wasn't too worried ... the Democrats would get back in power, and things would go back to normal) saying we shouldn't die on that hill. Dog whistles this blatant are easy to catch.

But in 2009, President Barack Obama decided to rejoin the international body, out of a desire to reform it. “With others, we will engage in the work of improving the U.N. human rights system,” then-Secretary of State Hillary Clinton said in a statement. “We believe every nation must live by and help shape global rules that ensure people enjoy the right to live freely and participate fully in their societies.”

Meanwhile, at Administration decided to withdraw from the UN Human Rights Council.  One thing that stands out to me in that article is how much emphasis is put on Israel (this isn't just on the US side, mind you). It is not a great idea that an institution that represents the world (around two hundred countries) to put so much emphasis on one of them. Anyway, I'm with the previous Administration on this issue.  Plus, the good faith of this bunch is lacking. Withdrawal does have a certain truth in advertising. 

[Some reference of international law also arose in the context of the first matter, including treaties we didn't join and have.]

On a completely different front, I am seriously impressed by this effort spent to review Cinderella's Hot Night. I prefer some of the Adam & Eve efforts airing late night these days (including use of natural noise during sex scenes) but that film does have a sense a fun to it. And, yes, it is a sort of Hallmark Channel movie mixed with soft porn. Saw two reviews reference that.

Juneteenth

This is the holiday celebrated to honor June 19, 1865, the day slaves in Texas were told they were free under the Emancipation Proclamation. State courts later held the EP only came into effect when the U.S. gained control over Confederate territory. Slavery totally ended at the end of the year with the ratification of the 13A. It also has a wider message regarding ending slavery/racism as a whole with special traditions in certain areas.

SCOTUS Does Not Go For It On Fourth Down

And Also: Chris Hayes and wife Kate Shaw talk law and Trump. They are so cute & talented.

First off, let's speak of the baseball gods' gift to the Mets yesterday in what looked to be yet another loss, helped by an insurance run by the "know how to play the game the right way" Diamondbacks.  Down Reyes, who showed a bit of life of late, but not that much. He decides to bunt. Good idea since he isn't hitting. The bunt went foul ... oh wait. It didn't.  The catcher, a position that saved pitchers' bacon repeatedly in this season, flubbed and picked it up before it rolled foul. A tough if catchable fly ball later and it's two on for a guy who actually is hitting. Home run.  The pitcher now spent, he gave up another HR to a guy who isn't hitting. It's so fated that even a flub by the Mets rookie 1B didn't ruin things.

Okay. So, back to the previous scheduled Orders/Decision Day. First orders. A few interesting tidbits including no decision yet on the Arlene Flowers same sex marriage case.  Sotomayor (as she "thrice" did before) has a solo dissent in a death penalty case.  Without dissent, they don't take a case involving voting rights in Puerto Rico (unjust but probably blocked by the constitutional system in place). SG opinion asked for a case involving a state law against forced feeding ducks/geese (pre-emption issues).  Also, they will decide if the Excessive Fines Clause is incorporated, a question those who thought about it probably thought happened already.

Other orders, including cases taken for argument, don't appear that interesting.*  A summary disposition involved applying Sessions v. Dimaya, the case involving the vagueness of a criminal immigration law. And, the first opinions today involved sentencing. Sotomayor started with a 7-2 (Thomas and Alito) case while an interesting split of Breyer v. Kennedy (with Kagan and Sotomayor, Gorsuch not taking part) splitting on what was a necessary record.  The most notable thing about the case (for other than those who are experts on this sort of thing) for many is that Rod Rosenstein argued for the government.

[This analysis suggests Kennedy's dissent is naive.]

Overall minor tweaking with a "hey we don't divide in predictable ways all the times" example. A return player was involved in our first punt, which basically left his claim of retaliation because of his beliefs (fwiw, I wasn't overall impressed) open even if there otherwise was grounds for an arrest. Only Thomas was upset at this.  The big decision (or non-decision) today involving political gerrymandering. As was predicted by some court watchers, Roberts wrote the opinion, holding there was no standing. The liberals went along but via Kagan wrote a strong concurrence on what is at stake.  Thomas/Gorsuch would have closed off future relief.

If another justice was willing to sign on the standing argument, it is fairly likely that the liberals would have voted differently. Jurisdiction line drawing has some content but often is a matter of pragmatics.  We can see a silver lining here in that people are able to live to fight another day. We can even see some logic in being wary about the federal courts getting involved and needing to draw vague lines such as the mathematical argument made in this case. But, we could have complained about the "one person, one vote" cases too. And, only in hindsight was Brown v. Bd. an "easy call," one that led to decades of litigation that eventually was no longer unanimous. A line in the sand is warranted here.

But, Kennedy was not willing to draw one ... yet.  More Thursday.

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* One that might be is a second go around involving drones, moose and regulation of national parks in Alaska.

TV Movies

Some good movies on today. Early on, an airing of the 2003 The Pentagon Papers [emphasis on Daniel Ellsberg though his second wife here was a good supporting character], sensibly on Decades Channel. Two Hallmark movies -- All for Love with Sara Rue (old) and Love at First Dance (new) were good too. Good lead with a touch of Kristin Chenoweth in her. Good role for the actresses and another "wedding not to be" plot.

Flag Day

According to evidence given at trial, the events which led to the conviction were these. Appellant testified that, during the afternoon of June 6, 1966, he was listening to the radio in his Brooklyn apartment. He heard a news report that civil rights leader James Meredith had been shot by a sniper in Mississippi. Saying to himself, "They didn't protect him," appellant, himself a Negro, took from his drawer a neatly folded, 48-star American flag which he formerly had displayed on national holidays. Appellant left his apartment and carried the still-folded flag to the nearby intersection of St. James Place and Lafayette Avenue. Appellant stood on the northeast corner of the intersection, lit the flag with a match, and dropped the flag on the pavement when it began to burn.

I noticed this bit in the Oyez.com summary of Street v. N.Y.: "Then, keeping the flag properly folded, he set it on fire with a match."  Also, the official rules include the way to dispose of a worn flag: “the flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning.”  One might argue that when it is assumed killing civil rights leaders is the patriotic thing to do, the flag might be in bad condition, symbolically speaking. Anyway, Mr. Street in a 5-4 decision written by Justice Harlan* got off because it was deemed that words he used could have tainted the prosecution.

Flag Day (of course, it is Trump's birthday, since, yeah) generally is a good day to judge how best to promote patriotism. The wearing of flag pins or saying the pledge (with or without "under God") is of limited value here though patriotism is often of a showy sort. But, as with Jesus with prayer, defenders of patriotism might support a more private or at the very least less flashy style. This includes patriotic action, which is not just a matter of serving in the military or the like, but honoring our ideals.

This would include dissent as shown by the Barnette case with its honoring of the right to do so. [75th anniversary this year and yes it was handed down on Flag Day.]  As suggested by the author of the previous link, including his latest book, the case was also a major expression of the power and duty of the Supreme Court to protect rights, at times from majority will.  In practice, as noted by Hamilton's "neither purse or sword" line on down, judicial review is of limited power but clearly has force. And, the courts are part of government -- a bit of humility is a good thing there.

Some probably think Flag Day a tad gauche, especially given the tendency of people to wrap themselves in it. At least, we are talking about an American flag here -- the Confederate flag still has its supporters. But, symbols are fine, especially if used with caution. Honoring our flag, our nation, all fifty states, with colors for hardiness (red), purity (white) and justice (blue).  A voluntary pledge, especially in a public school system set up to promote civics, seems appropriate.  I would leave out the God stuff.

If I had a full flag (have a mini one somewhere) though, these days I might hang it at half-mast.** 

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* The Brethren  noted that Harlan later respected the rights of symbolic speech directly by arguing that a conviction of a violation of New York's flag desecration [via flag sculptures, including in the shape of penises] statute was in contravention of his right of free speech under the First Amendment to the Constitution of the United States.

Douglas did not take part and the conviction was actually upheld by a 4-4 vote, Justice Black again finding symbolic speech not protected. It is a tad absurd (even if the sculptures were put in the window of a NYC gallery) that this sort of thing -- not even flag burning -- was not deemed protected.  If Black wanted to say burning a flag (manner) or even armbands in schools / jackets in courtrooms (place) is not covered, wrong, but somewhat reasonable. If art is not protected expression, come on.

** The one flag (to my knowledge) the immediate family has is in honor of my father's military service, provided at his death some years back. RIP and Happy Father's Day. 

SCOTUS Watch

A few more days left of the term, so a Thursday opinion day added ... to deal with two cases. First a RBG civil procedure special:

Roberts announces that Justice Ruth Bader Ginsburg has the first opinion, in Animal Science Products Inc. v. Hebei Welcome Pharmaceutical Co. Ltd. Ginsburg writes for a unanimous court that a federal court determining foreign law under the Federal Rules of Civil Procedure should accord “respectful consideration” to a foreign government’s submission, but is not bound to give “conclusive effect” to the foreign government’s statements.

This means the revival of the respondent’s U.S. antitrust suit against Chinese companies for allegedly price-fixing their Vitamin C exports.

No separate opinions or dissents. The political opinion had a fairly expected if limited approach:

Not every Supreme Court decision about elections is a disaster, and the ruling in Minnesota Voters Alliance v. Mansky striking down Minnesota’s very broad ban on wearing political apparel in polling places is a pretty good one. Although the court struck down a law [Rick Hasen] thought it should have upheld, the opinion shows a more realistic and functional understanding of the political process than the court has shown in campaign finance cases. It gives states ample room to assure that people can vote at polling places free of political pressure and intimidation.

It was a Chief Roberts minimalism special with two liberals dissenting in a short opinion wishing the state court got a chance to clarify the statute.  But, it wasn't with much passion, since as Rick Hasen noted, the opinion left open the chance for broad regulation at a polling place. A polling place not being a public forum as such, the government can limit what is said there, including with political apparel. It just has to be clear about it.

Next set should come next Monday unless an order pops up.

AJ Applegate

I referenced this porn actress in a previous post, seeing her repeatedly in late night Showtime films. I have seen her in a few more -- she clearly is an Adam & Eve films favorite. Given how things are going, she has been quoted in the news and not just Maxim pieces.

And Also: The sort of stuff on Showtime is not obscene but Mets play is with the 11-1 start turning out to be a mirage. The offense is offensive (pen not much less so) and leaving dead-weight like Reyes on the roster apparently for nostalgia reasons (is it to help rookie Rosario? he's but part of the problem now) adds insult to the many injuries. Cespedes, the 29M "but 2015!" albatross, is yet again injured. Me? I very seriously would get rid of him. Real change.

Gratuitous Bush v. Gore Toss-In Alert

Adam Winkler's We The Corporation book has this tiresome trope:

A majority of justices, seven of the nine, held the recount violated the Constitution's equal protection clause because each county used its own, potentially divergent, standards to count votes.

Bush v. Gore never dies.  Where are these "seven" who "held" this? Where? The per curiam does claim:

Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy. See post, at 6 (Souter, J., dissenting); post, at 2, 15 (Breyer, J., dissenting). The only disagreement is as to the remedy.

Telling. Souter?

Justice Souter, with whom Justice Breyer joins and with whom Justice Stevens and Justice Ginsburg join with regard to all but Part C, dissenting.

Not, "dissenting in part."  Souter does say that the equal protection argument (unlike two others) is "a meritorious argument for relief." The different types of voting results here specifically (though cf. Stevens and RBG) are notably "wholly arbitrary." But, again, he "dissented." So, I'm unsure how he "held" anything. Likewise, given his druthers, he wouldn't have taken the case at all.* Basically, only dealt with the issue because the majority forced the issue: "But because the course of state proceedings has been interrupted [by five justices], time is short, and the issue is before us, I think it sensible for the Court to address it."

Put that aside. If Souter "held" something, he expressed things in a somewhat curious fashion.  What about Breyer?  Curiously:

Justice Stevens, with whom Justice Ginsburg and Justice Breyer join, dissenting.

Now, maybe, Breyer's position is somewhat hard to parse given he joined this opinion, wrote his own and joined Souter's own. Nonetheless, again, he joined -- not "in part" -- Stevens' dissent. Why we basically never hear about a "6-3" split in Bush v. Gore is unclear to me.  If Breyer only joined (like Stevens/RBG did in respect to Souter's) part of the opinion, fine. But, he did not. So, even this portion doesn't solve things:

Even assuming that aspects of the remedial scheme might ultimately be found to violate the Equal Protection Clause, I could not subscribe to the majority’s disposition of the case.

Again, RBG's dissent (sic) shows how to split the baby:

Justice Ginsburg, with whom Justice Stevens joins, and with whom Justice Souter and Justice Breyer join as to Part I, dissenting.

Breyer didn't join all of RBG's opinion. It's somewhat curious that the last portion didn't get his vote, but as she noted: "I agree with Justice Stevens that petitioners have not presented a substantial equal protection claim" Stevens explains why a remedy isn't demanded and only then "assumes" it might be, still not joining the per curiam. Again, it is curious that Breyer "held" something here for which Stevens "dissented."  He could have, as is carefully done in any given case, only concurred to a portion of the dissent.

Justice Breyer, with whom Justice Stevens and Justice Ginsburg join except as to Part I—A—1, and with whom Justice Souter joins as to Part I, dissenting.

He did not. Even if Souter and Breyer would grant that a remedy is necessary, neither joined the per curiam. They did not "hold" anything. If they did, they should have -- as each of the dissenters did in relevant part regarding joining a dissenting opinion -- noted their partial agreement upfront. The standard form is "concurring in judgment in part" or the like.

If you disagree with my parsing, fine, but it's a gratuitous toss-in. 

---

* As all four dissenters agreed, in the words of Breyer:

The Court was wrong to take this case. It was wrong to grant a stay. It should now vacate that stay and permit the Florida Supreme Court to decide whether the recount should resume.

To belabor the point, Breyer's language as to the need for the remedy is weaker than Souter's. He only takes a fraction of the equal protection claim seriously, noting that part "does implicate principles of fundamental fairness" but hedges on just what is necessary taking everything into consideration ("may well have counseled").  Held? Uh.

SCOTUS Watch: Voting Rights [and other matters]

And Also: I tossed in some other legal matters in the content of this post but also added to the side panel a timely book (including given D Day just passed) regarding Sophie Scholl and the White Rose movement.  I saw a German film years ago on her as well and liked it. An article on Svengoolie and marketing was good too. 

Today was an orders/opinion day and there will be another one on Thursday -- there are around twenty more cases to handle in the next few weeks. Nothing really of note among the orders from what I can tell though a few curious tidbits such as "SEALED APPELLANT V. SEALED APPELLEE" that was granted/vacated per a recently decided case. Also, the opinion of the Solicitor General was asked in some cases with human rights implications.  The Arlene Flowers marriage case is open.

I have been reading Adam Winkler's (he also wrote a good book on the history of gun regulation) book We the Corporations: How American Businesses Won Their Civil Rights. A lot of material, so it has to be skimmed, and we get most of the focus on Supreme Court action.  It's best not to see this in a one note fashion, particularly when we are talking about media and non-profit corporations. To me a specific concern is that corporations being a form of legal "person" is not the same thing as them being "We the People" or exactly like natural persons. 

One notable bit is that often it is a good thing to treat corporations as "persons," since that can mean the government treats it differently, since it is a special sort of "artificial person." The other approach is to ignore the corporate form and look behind it to the persons who make up it or speech it promotes.  Consider the Bellotti case, e.g., where the special nature of the corporation (including the problem of split shareholder consent, which was a major concern in an early 20th Century matter cited in the book) is flagged by the dissent (White with Brennan/Marshall; Rehnquist separately).  White's dissent is worthy of emphasis.

Back to today.  Four cases decided. One was evenly decided after a conflict from the 1980s involving Kennedy was flagged.  RBG (with Sotomayor, as is her wont at times, differing some) handled a civil procedure matter. Kagan, with Gorsuch dissenting alone (tossing in a cite from the 13th Century), handled a case that accepted a divorce procedure that was challenged on Contract Clause grounds.  And, the big news -- the Supreme Court by a predictable 5-4 vote (accounts flagged the challenge was in trouble) upheld the Ohio policy in a voter registration dispute applying two national laws regarding the proper means to update registration rolls.

The statutory argument was deemed "close" by Rick Hasen and basically it is a matter of tiebreakers. He calls the result "unfortunate," which is at times c'est la vie, but in this case the liberal dissenters (Sotomayor highlighting the discriminatory impact) appear to have a workable argument. Meanwhile, Alito provided a "strong" conservative reply, which is basically his job.  Me, I think a good rule of thumb is when it's between Alito v. Breyer and Trump v. Obama, the latter is a good call.

Anyway, this appears to be a thumb of the scale (not Shelby level bad) voter suppression result, if one where the battle is still on. Especially later this year (NY federal primary is the end of this month) and 2020.

===

One more thing. There was an interesting article in the NYT regarding nitrogen gas as a means of execution, which is the latest thing.  A few, including Justice Sotomayor in Glossip, flagged the firing squad, but this is promoted as the latest in best practices as to death executions. It is more comprehensive than an op-ed against its usage (the person supports oral drugs) though he was cited.  Note this passage:

Veterinary experts generally do not recommend nitrogen or other inert gases for euthanizing mammals. Responses to the gas vary according to species, and in its 2013 guidelines, the American Veterinary Medical Association said, “Current evidence indicates this method is unacceptable because animals may experience distressing side effects before loss of consciousness.”

The op-ed was cited separately and the guidelines linked and the quotation was not there. Some form of the article, or at least the quote, can be found by doing a search a few places. So, the matter interested me, and I sent a message to both of the authors of the piece via the NYT online link provided. Denise Grady nicely replied (I asked another blog related author a question and she too replied* -- the Internet is charming at times):

The quote came from  the World Society for the Protection of Animals, not the veterinary association.  My error.  I had information from both and mixed them up.

The citation has not been changed yet though. Oh well. I sent another line and the same person said it will be corrected. [Update: It has been.] I sent a note regarding a couple typos in a SCOTUSBlog article and they were fixed right way.  No judgments -- I'm a typo machine.

---

* As I mentioned in a comment here, the person even sent an attachment of the article, which I might otherwise not have obtained.

Note it is part of an ongoing series of posts there and at Concurring Opinions involving the amendment process, arising from putative recent ratifications (and rescission, there in the past) of the ERA.  The question split the people in some curious ways, but the bottom line for me is that I think too much time passed for us to ratify, which very well might be a thing to worry about since counting recent votes would mean we are but one away!

The issue of rescission is to me less clear-cut though precedent and Article V text (speaks of ratification alone; that is, one way) is telling. Also, if there are any blanks, the Necessary and Proper Clause gives Congress the upper hand there.

SCOTUS Watch: Have Your Cake and Eat It Too Edition

And Also: I added Their Finest to the side panel, having read the book after watching the film.  Liked both. Other than reduction to fit into a film, such as two appealing "normal types" supporting characters, both basically follow the same plot. Most of the changes in the film are if anything improvements, toning down a few things, except maybe the film adding a reveal of the writer catching her boyfriend having sex (a standard overused trope) instead of merely being with another woman at an art event. 

Supreme Court sweeps month starts with two big decisions that have a "to be continued" aspect in both instances.

The order list was too long to be totally forgettable and a long Sotomayor solo dissent special in a capital case only partially explained why.  Two criminal justice opinions were also handed down, one unanimous, one 6-3 (Roberts, Alito and Thomas dissenting). Sotomayor concurred in that one too in part to break a 4-1-4 tie on one point. This avoided them needing to decide clarification of the so called "Marks rule" involving finding the lowest common denominator in such cases.  That's a sound use of judicial judgment to decide questions in a way that avoids confusion and respects precedent.

A pending case involving blocking undocumented teens in federal custody from having an abortion has been pending for months for unclear reasons. The matter was finally decided: the positive lower court opinion is vacated since events mooted it as the case was pending. This is not great and maybe sends negative signals about the future.  But, a pending challenge should still be in place. The Administration was not granted its request for sanctions because of alleged mishandling though it was hinted the claim wasn't totally bogus.  One can see how the justices -- maybe from both ends -- carefully negotiated the terms of this fairly bland order.

The first opinion dealt with a bankruptcy law case, the only notable thing for the general public (or those who care) that three justices didn't join a section discussing the House Report. More legislative history disputes.  We eventually (most senior justices go last) got the Masterpiece Cakeshop case with the rather surprising 7-2 (or 6-1-2, Thomas not joining the majority opinion though Gorsuch joined both and tossed in one of his own) judgment for the baker.  Kennedy argued that the specific application of the civil rights law here was done in a religiously discriminatory manner.

To add to the cake metaphors, there is a "have your cake and eat it too" quality to this opinion that leaves open hard questions for future cases.* Justice Kagan (with Breyer) concurred separately to basically say that even the couple involved has a right to the cake, but Colorado handled things differently. Her long footnote challenging Gorsuch's analysis flags future debates, such as a florist case now pending Supreme Court conference review.  Some might find the result inane on some level, but opinions with comments like "gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth" aren't all that bad.

I agree with the dissent (and this discussion; see also, the link at the bottom, as to its application to the travel ban ruling) on the application of the principles to this specific case.  There is reason to fear, see also Hobby Lobby, religious liberty cases will be applied in a way that do not properly respect other interests.  Justice Kennedy concurred separately there in part to underline that birth control access is a compelling interest but that there was a way to balance the concerns. In practice, there are complications there, and it simply is impossible to thread the needle equally all the time given the range of religious beliefs and regulations in this country.

Finally, Kennedy's concerns here seem more emotional than relevant. RBG (with Sotomayor) dissented briefly though, perhaps because their differences were less important than their agreement on bottom line important points.  To be continued.

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* As noted in one link, some summaries of the opinion make out as if more was decided than actually was.  I'm not sure how weak Kennedy's approach is, think on better facts, there would be a stronger free exercise claim. Net, the baker won, but not sure how happy he should be.

SCOTUS Watch

ETA: I should include a picture of my bandaged finger in honor of the latest Mets injury woes -- two starters have sore fingers now. 

It is almost time for yet another sweeps month, the result of a flawed system where important cases (justices are loathe to differentiate there but this is true and is shown by their selective use of same day audio) are stacked up at the end of the term.

We are in that sense in the calm before the storm though a few notable cases have been decided this month. Likewise, a somewhat notable (how much is unclear) non-grant on Monday in an abortion case.  An election case was declared moot in that Order List, but Rick Hasen over at Election Law Blog did not seem to think that generally notable.  And, here is an essay regarding the tribal case that was punted.  As noted there, I think this concern for the reach of immunity is somewhat limited.

SCOTUS had opinions on three cases. One case was disposed of as improvidently granted [DIG].  The Roberts Court has picked its spots  and repeatedly finds a way to narrowly decide things and avoid issues. Another case dealt with a criminal restitution statute (though not your usual benefactor -- a major corporation was involved) via a brief (about seven pages minus head notes) unanimous Breyer opinion.  The reach is unclear but that commentary suggests it might be of some note in that area.

The final case was pretty easy (8-1) but basically is application of a principle to a sort of outer limit.  Police looked under a tarp at a motorcycle in someone's driveway.  The driveway is the "curtilage" -- a border around the home (specifically protected by the Fourth Amendment and given special respect in other areas too -- obscenity and handguns come to mind) protected as well.  The matter earlier came up when dealing with drug sniffing dogs taken to a person's front door.  Other than Alito's "this seems stupid" dissenting approach (comparing a 18th Century law dealing with ships and wharves is also an example of misuse of two things not quite the same), the result here applying current law is simple.

At some point, yes, you can draw lines. But, this is not like a case cited in the opinion about a vehicle that has just driven into the driveway or something (and "exigent circumstances" remains, even if a suspect flees into a house -- unlike in a movie where crossing a district line stops the pursuit, there isn't quite a magic line).  Formalism can at some point miss the forests for the tree, but a basic line was drawn here that made sense. As noted, the well off can afford garages and the like. Alito talks about distance. But, one's home is a short distance from the street too.

The value of such "easy cases" (in a fashion) is that it allows a supermajority of the Court to basically reaffirm basic principles. The privacy of the home in this case. Justice Thomas had a separate opinion to question the exclusionary rule (see former prosecutor Justice Clark in Mapp v. Ohio on why we have it) though went along with the majority because the matter was not at issue here. Not to worry: he will go along with the conservatives to water it down without removing it.  I guess we need another fairly easy case to reaffirm the point of the rule.

Meanwhile, in the lower courts, "In God We Trust" is safe for now. The analysis very well might be right that given Hobby Lobby, the argument is close. This might underline the problem with an excessive application of RFRA or (if that is a given) the law itself.  I personally think the motto violates the Establishment Clause and the Free Exercise argument is fairly weak.  But, under current law, my argument is itself weak. Judge Reinhardt was on stronger ground there regarding the much more narrow argument as to minors and public school led Pledge of Allegiance usage.

Memorial Day

Peace.

NFL New Anthem Policy

"You have to stand proudly for the national anthem or you shouldn't be playing, you shouldn't be there," Trump said in an interview that aired Thursday on Fox News. "Maybe you shouldn't be in the country. You have to stand proudly for the national anthem, and the NFL owners did the right thing if that's what they've done."

An interview brought out the aiding and abetting of sexual harassment that is (with real bite) attacked by the #MeToo movement. A older actress is in effect gang up on and not allowed to speak her piece and she is the one that feels it necessary to "move on" from her well deserved feelings of an actor who mistreated her.  The guys come off badly. But, the person in the White House comes out so much worse. And, that's just one issue.

I find a need to pound on this issue since the presidency being taken over, especially in the way it was, by this asshole matters so much. But, let's focus on this new anthem policy.  A player can stay off the field, but if he does not, the new  policy subjects teams to a fine if a player or any other team personnel do not show respect for the anthem. Charming. But, the protest IS respecting "for which it stands," to reference the Pledge Allegiance.  Protest is a basic part of who we are. And, the protest is to fight injustice, what we are not supposed to be.  Too hard to understand?

The teams (with one abstention) all agreed with the new policy but the NY Jets chairman publicly supported the right of players to protest. That's promising, giving one a reason to watch the team; maybe they will be able to put up credible talent this time around.  The NY Daily News also added to their prime front covers (they had some great back covers too) coming against the new policy.  This isn't too hard since against protest is sort of our thing as a nation, though people tend to look askance at it as you know sort of unpleasant.  As are the things being protested.

A word on Colin Kaepernick. As I note in comments here, it is pretty darn obvious that mere talent isn't the reason he was denied a job. Listing the mediocre talent that gets jobs while he is out of work is a parlor game. He did have struggles, so he wasn't a slam-dunk talent. But, the mindset is that he wasn't worth the "baggage" he would have brung. There is a calculus involved where strong critics like the person linked there still watches games while a certain nationalist/racist/low risk sort of fan or advertiser would be willing to not watch/pay if he was there. Plus, yes, some of the owners are conservatives who are inclined not to like him anyway.

This doesn't justify what was done to him, but going on and on (as that blog at times did) as if people are not aware of what was going on doesn't put the full story right out in the open. It is surely the case that some don't want to admit it, akin the story of the king with no clothes on. But, it is not like only talent is involved in player moves. We see this with the "Me Too" movement, to combine things together. The rules are not handled in the best way; this isn't the same thing as it being wrong that domestic violence will get you a suspension from baseball or football.

Anyway, the new policy seems to be seen as a sort of compromise, since people are not forced to take part in the national anthem. People have rightly noted that they might be a bit deluded to think that, especially such an across the board rule for all teams. It's an asinine anti-American policy.

ETA: Poll regarding policy:

White: 52% support; 32% oppose
Black: 29% support; 48% oppose
Hispanic: 49% support; 19% oppose

The Hispanic numbers are a bit surprising but otherwise fairly expected. Useful to know about strength of opposition here.

Mystery of Life Passage Is Not Judicial B.S.

SCOTUS Update: Monday was order day (nothing special really) and fake justice day -- both opinions were by Gorsuch, one a 5-4 further expansion of conservative arbitration law with various comments by me and a more traditional "punt"/minor case.

At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

Reference is made to this passage from Planned Parenthood v. Casey (abortion) in a discussion of "judicial bullshit," and other than penumbras and emanations, it probably in certain quarters is a top target.  Without going into the various intricacies of the discussion there, including a comment that suggests "b.s." is not necessarily a negative thing (okay), I push back on that argument at least to some degree. First:

The liar still cares about the truth. The bullshitter is unburdened by such concerns. Bullshit-related phrases like bull session or talking shit also suggest a casual, careless attitude toward veracity -- a sense that the truth is totally besides the point. Bullshit distracts with exaggeration, omission, obfuscation, stock phrases, pretentious jargon, faux-folksiness, feigned ignorance, and sloganeering homilies.

-- Laura Penny, Your Call Is Important To Us: The Truth About Bullshit

The last part does bring to mind criticisms of Justice Kennedy, who probably wrote that passage.  And, he does favor rhetorical flourishes that is open to such criticism. But, so what?  Any number of justices are as well, as shown by Rick Hasen's recent book on Scalia. My bottom line here would be to determine how bad a certain reference is, is it truly an empty comment.  I would take a generous approach that tries to get to what is being said.  Rhetoric flourishes or whatever deal with complex matters that is only determined by actual cases (see, e.g., Stevens' concurrence to Casey on application of doctrinal tests, which always are inexact things).  The reference does not fail in that respect.

Consider a range of things covered in substantive due process cases. There is the traditional test from the 1930s: "implicit in the concept of ordered liberty" such that "neither liberty nor justice would exist if [they] were sacrificed." Palko v. Connecticut.  Or, this from the flag salute case:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Both have received pushback and Justice Black, e.g., supported simply incorporating the Bill of Rights, instead of some "ordered liberty." But, he managed to find a way to exempt armbands for school children and find fault with the exclusionary rule while accepting the "one person, one vote" rule that is if anything less tied to actual text (and history/precedent).  And, what is "one's right to life, liberty, and property"?  The potential power that passage gives to courts is open-ended.  So, maybe this too is judicial b.s. After all, I really didn't read article. I don't think it is.

Doctrine as well as basic speech uses inexact terms, like "ordered liberty" or whatever, to provide a rough summary of complicated matters that wind up being decided by balancing various things. As Justice Harlan noted in his dissent in Poe v. Ullman (see also, his concurrence in Griswold):

Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that, through the course of this Court's decisions, it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society.

He continues but you might get the idea. Again, is this a form of "judicial b.s."?  Someone might say so, but it also is basically true. Of course, trying to determine what this means in action is a major debate and is complicated. A person can break down each sentence and find problems.  It is something of a parlor game akin to using one's own words against you because the other person is saying something with a caveat or views things differently.  Life is complicated and a starting premise helps.

Is the heart of liberty, "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life"?  The passage does not stand alone. It is preceded by a reference to "the private realm of family life" as well "personal choices a person may make in a lifetime, choices central to personal dignity and autonomy" protected by a stream of cases. Then Judge Stevens summarized it this way:

These cases do not deal with the individual's interest in protection from unwarranted public attention, comment, or exploitation. They deal, rather, with the individual's right to make certain unusually important decisions that will affect his own, or his family's, destiny. The Court has referred to such decisions as implicating "basic values," as being "fundamental," and as being dignified by history and tradition. The character of the Court's language in these cases brings to mind the origins of the American heritage of freedom -- the abiding interest in individual liberty that makes certain state intrusions on the citizen's right to decide how he will live his own life intolerable. Guided by history, our tradition of respect for the dignity of individual choice in matters of conscience and the restraints implicit in the federal system, federal judges have accepted the responsibility for recognition and protection of these rights in appropriate cases.

-- Fitzgerald v. Porter Memorial Hospital

In Meyer v. Nebraska, reaffirmed in Pierce v. Society of Sisters, the Supreme Court compared our idea of liberty to the regimentation of Sparta in Ancient Greece. Basically, "liberty" entails not being a "creature of the state," but one's own person.  One's concept of existence and their place in the universe is their own. This is a basic right of conscience and elsewhere (the opinion is not one passage) abortion is seen in that fashion. And, the range of views on "life" in the abortion debate shows this has special relevance here. They are for the individual to formulate, not the state to pick and choose, putting their thumb on the scales.*

The "requirements of a free society" in respect to privacy was discussed by Justice Douglas in Poe v. Ullman and looking at the underlining philosophy there helps to see why it is seen as so important to us. There is an overall truth there even if again you can debate particulars. The passage reflects that truth even though I do think that the justices might not have over the years done enough to flesh things out.  After the passage, we have this:

These considerations begin our analysis of the woman's interest in terminating her pregnancy, but cannot end it, for this reason: though the abortion decision may originate within the zone of conscience and belief, it is more than a philosophic exercise. Abortion is a unique act. It is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedure; for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one's beliefs, for the life or potential life that is aborted. Though abortion is conduct, it does not follow that the State is entitled to proscribe it in all instances. That is because the liberty of the woman is at stake in a sense unique to the human condition, and so, unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.

I included the long passage, which I do not grant is true in every aspect, to show the complexities go beyond the passage.  There are a range of things involved here. There is not just some sort of "judicial b.s." passage that is some sort of rhetoric flourish that covers up the complexities of the matter. The woman here in particular has a "liberty" to equally control her life, create her own personhood. And, there are a range of complications, including health and the developing human inside of her.

They are covered.  There is a lot of "b.s" raised when discussing the subject, some found in the U.S. Reports, but not that passage.

===

* I am not alone in thinking this, but it is somewhat of a minority view to consider this basically a religious freedom matter, aside from when conservatives want to do so to deny funds or something. This is unfortunate since it allows one side to wrongly seize ground there.

The "meaning of life" here is a sort of "universal truth," which is sometimes used to help define "religion." 

Landmark Cases: Bakke/Affirmative Action

[Per the Civil Rights Act of 1964,] we must decide, first, whether a complaint alleging that white employees charged with misappropriating property from their employer were dismissed from employment, while a black employee similarly charged was not dismissed, states a claim under Title VII.

-- Justice Thurgood Marshall in McDonald v. Santa Fe Trail Transp. Co. (1976)

Yes, it did. But, the constitutionality of affirmative action programs that in some fashion gives a "plus" based on race (or some other criteria, such as sex, which also currently receives heightened scrutiny)  is not quite the same question.  Nor, the application of a federally funded college affirmative action program or even the standing to make such a claim.  That is the issue at hand as Landmark Cases, Season 2, came to a close.*

My philosophy is generally "it is complicated," but I do have a sentiment toward basic rules.  So, it is understandable that some people use a one size fits all approach in this area though it doesn't really hold up to scrutiny. For instance, some like to reference Justice Harlan's Plessy dissent regarding the maxim that "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." But, Harlan accepted public school segregation and additional punishment for interracial fornication. His rhetoric was not to be taken totally literally. And, especially regarding public benefits, the originalist argument leaves something to be desired. Perhaps, this is why people like Scalia (see Rick Hasen's latest book) and Thomas use rhetoric more than history to back up there positions. 

The ruling here was split three basic ways (4-1-4) with Justice Stevens uniting the four dissenters in arguing that statutorily the affirmative action policy was invalid. A decade later, in Johnson v. Transportation Agency, he submitted to precedent there and accepted the law held otherwise.  But, Stevens -- though he left open some room for use of race based classifications in such areas, was rather strong about his concerns in the past, including references to Nazi Germany. It wasn't just a matter of fit. White joined with the liberals but separately argued that Bakke didn't have a cause of action to raise the statutory case though the majority rested on constitutional principle.

The decision of the case turned on Justice Powell and his position in effect also was later recognized (up to and including Fisher) as the law of the matter. Powell argued that the federal law at issue should be understood to bar the sort of "discrimination" that is unconstitutional, not something more. Furthermore, it is acceptable to use race as a factor in student selection as a matter of academic freedom (diversity) but a set number of seats is too blunt of an approach.  Societal discrimination is too open-ended of a state interest and there is not enough evidence that the policy was necessary for some sort of role model or to provide doctors to certain communities.  I see his position as a reasonable compromise approach but never really understood why social discrimination wasn't enough given the evidence we have. See also, Justice Marshall's separate opinion.**

We have never approved a classification that aids persons perceived as members of relatively victimized groups at the expense of other innocent individuals in the absence of judicial, legislative, or administrative findings of constitutional or statutory violations.

The opinions from the left appealed to various other situations where some benefit is selectively provided to specific racial or other groups (sex, vets, athletes, etc.; note many of these are not given the level of concern as race, so there is a key different, if only up to a point -- mere academic competence alone isn't the test here).  Powell argued they were different in various ways. I won't examine the issue here, but find the differences somewhat questionable though they are not all alike to be sure.  Note the special exception given that has a specific judicial cast; see also, two justices [Stewart/Rehnquist] from the conservative side in a later case.  Does the fifth section of the Fourteenth Amendment, at least, not suggest Congress has a special role here?  And, various things historically provided limited benefits to certain groups over others without "constitutional or statutory violations" being required. The matter has been dealt more strictly in the current era, but many conservatives dissented to such scrutiny.

Brennan provided the main partial dissent from the liberal side, reaffirming that race repeatedly was used to advance equality.  He cited cases like Yick Wo, a past case in this series, to note that stigma is a particular concern when determining invidious discrimination. Justice Stevens later reaffirmed this idea that race based affirmative action programs are not the same thing as Jim Crow laws (a door in the face is not the same as a welcome mat).  The set aside of a certain number of seats to him was not of constitutional significance.  Justice Blackmun basically said the same general things in his Blackmun sort of stream of conscious ways, adding the line that is best remembered that the way to address racism is to take account of race:

I suspect that it would be impossible to arrange an affirmative action program in a racially neutral way and have it successful. To ask that this be so is to demand the impossible. In order to get beyond racism, we must first take account of race. There is no other way.

Justice Kennedy in recent years in particular has been concerned with too blunt usage of race in government programs while leaving open the legitimacy of some usage. This has led to people wondering when he would find -- ala Goldilocks and the Three Bears -- a policy that is "just right" in his view.  The second Fisher v. Texas case was such as case apparently, Kennedy accepting that if the evidence was strong enough and race was only used as a partial factor that it would be legitimate. Again, I understand the logic of this up to a point but at some point as well it results in phony business like "ten percent plans" that work in large part because of racially discriminated school districts.  A set number of seats does seem blatant, but what about some sort of range?  Policy requires some sort of benchmarks.


The Oyez.com page provides a remarkable hour long opinion announcement with Powell, Stevens, Brennan, Blackmun and (out of order) Marshall providing a summary of their opinions.  One thing the opinions argue is that alternatives are not enough. Some do argue that class based systems might be better. And, like Sandy Levinson argues in his book Wrestling with Diversity, we do need to look beyond race here. But, like Blackmun highlights, race in particular is a problem.  We see this now with the concern given to the opioid epidemic, a more white disease than the crack epidemic. A general approach to drugs is appropriate but to ignore the race aspects is a fraudulent policy.  Same here.

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* I skipped it because Randy Barnett isn't exactly an ideal guest (have issues with Neal Katyal, but more so Barnett as applied to his expertise above and beyond any number of people on this issue).  Hope they survived without citing one of my tweets.

** In the Stevens' dissent referenced above, involving a later case, he respected Marshall's eloquent discussion, but in effect said that any relief to blacks (called "Negroes" then) could not be done by the sort of rough affirmative action or "set aside" system in place in those cases.  Given Stevens' reference to Nazi racial classification regimes, it is somewhat hard to determine how we would find the suitable class here though, perhaps per some sort of "reparations" regime or something. 

Disobedience

Very good movie especially the two Rachels. Rachel McAdams had a sexual awakening in The Notebook and she has that sort of moment (both in a fashion is a matter of her feeling "finally!" if in different ways) here. Very raw film in various ways, including the actresses lack of makeup. The director was also behind A Fantastic Woman; this one is also fantastic but not just the lead[s]. Film doesn't demonize the conservative religious believers either.

SCOTUS Watch: Betting Edition

Oral arguments are over and we are getting to crunch time regarding Supreme Court opinions though they seem to be a bit behind schedule. A handful of opinions were handed down yesterday with the most notable involving sports betting. Others are somewhat interesting (e.g., privacy of those who borrow rental cars), but ultimately are narrow in scope.

As seen on the SCOTUSBlog case page, federalism precedent does not compel the suggestion that the law is unconstitutional. But, it seemed obvious to the majority (Kagan went along; three justices thought the law could be saved by cutting off the "bad" part). Net, sports betting is opened though in theory Congress could pass a new law advancing the same end. The result seems ideal to some liberals since it might restrain Trump actions but in the future it might hurt when sane people are in power. So watch out there.

Harry and Meghan

Vanessa Rumbles, previous producer of The Stephanie Miller Show, tweeted that she enjoyed the Lifetime movie. I overall liked it too, especially the Meghan Merkle [who showed her spunk and media savvy at 11] performance. She also had a blog. The Queen approved ... of the marriage. It is a nice, feel good story. Real life yet. The Hallmark version would have a non-actress marrying a prince; at least, one non-celebrity.

And Also: Finally found a good DVD, Their Finest, which tells the story of a British Ministry of Information film team making a morale-boosting film about the Dunkirk evacuation during the Battle of Britain and the London Blitz. Gemma Arterton is the lead and she's great.

Happy Mother's Day!

"On Blue Slips, Republicans' Hypocrisy Is Showing"

Prof. Jost's remarks here, including regarding selectively caring about the issue away from the Senate too provide a good summary. ACS Blog has had defenses of the procedure while other progressives basically say Dems let Republicans play them. Given all the moving parts involved, don't know how harsh I'd be there. Me, I think it makes sense to divide the advice/consent function so that home senators have special responsibility. But, that requires good faith and limits. Republicans don't have/respect it/them. They are a rot on the two party system these days and basically make it not possible to have good things.

Review Time

I saw the Liftetime (stereotype of that sort of film present) The Truth About Jane (teenage lesbian) film years back (released 2000) and seeing part of it again, yeah, it's a tad heavy-handed. I read Walking Naked years back and read two more books by the author. Finding Grace deals with a college student caring for a brain damaged woman. Overall liked it better than Alex as Well (trans teen) but both have some charms. Think the problems of a newbie caring for Grace was skipped over too much. Also, re-read Beyond Belief. Gnosticism ultimately is best seen as a sort of metaphor regarding personal insight but it still is confusing. And, works like Gospel of Truth really need detailed notes. A sort of code key.

ETA: I liked the remake; the original The Blob was pretty fun overall too.