Balkinization Ends Outside Comments

Over the years, various places allowed me to provide my .02 until comments were cut off.

For years, I took part in the "Slate Fray" until that ended. The movie database IMDB eventually cut off comment threads.  Mirror of Justice and Rewire (current name) had comments once upon a time, both ending it since moderation was not deemed worthwhile.  Comments allowed the former in particular to have a few replies from those somewhat critical of its conservative leaning tone.  The Justia/Verdict essays recently also cut off comments, comments tending to be somewhat trollish. 

Balkinization Blog also provided me a platform though in time the named contributor cut off comments, bothered in particular by disputes involving a trollish person in particular.  Sandy Levinson later repeatedly flagged his annoyance at non-germane comments, including replies to two Trumpy contributors. The two remaining contributors who allowed comments now do not, comments if opened only open to blog contributors. This was finally noted officially after it already occurred.  

I understand why this was done -- as noted by JB, readers (most of whom did not comment) were annoying by the comments becoming flame wars.  Biased I might be, but did think some of the regulars had useful comments. The comments from the two Trumpy types were useful to get a sense of that sort of thing, which led to some strong reactions, including from myself.  But, Sandy Levinson's posts alone were rather strong, so is that really that surprising?  Still, it clearly bothered contributors.

The result is still unfortunate in part because repeatedly the contributors warrant a reply. They often have a speak to the choir type tone (less so various guest contributors) with comments well worthy of criticism. It is well recognized that they have the right to self-expression. Still, comments also provide their own value.  (Sometimes, you get a tired putdown regarding "maybe you should cancel your subscription," or just don't read the stuff, but critics of comments can be answered the same way) 

The guests/at times Marty Lederman with long detailed analysis of certain legal disputes provide the best value.  But, without comments, it is not that worthwhile. For now, it's off my blogroll.

Order List: Still Eight Edition

With SCOTUS next having a conference at the end of the month, today's Order List might be the last one with eight.  (ETA: 4-4 to be cont. election ruling, Dems win for now.)

Curiously, it took a border wall and migration policy case, both tied to Trump being in office.  The other granted case involves entering a house without a warrant even in pursuit of someone allegedly committing a misdemeanor, here a noise related vehicle matter though it later led to a drunk driving charge once the officer talked to the person.  

Gorsuch (with Sotomayor and Kagan, who wrote a concurrence in one case he flagged) -- with a photo (rare even in opinions) -- flagged a lower case as wrongly decided if perhaps not cert-worthy.  It involved a 4A issue and has "see Trump nominees are trustworthy!" cred. Thomas did dissent from another denial, tossing a shot at the big Native American opinion Gorsuch wrote last term in the process.

Sports Update

Astros went from 0-3 to the tying guy on base in the 9th in the seventh game.  Rays hung on. Braves went from 2-0, giving up 11 in the first inning but coming back to win big the next game, but then losing three straight (two close). They were even up by 2-0 early.  Blah!  "Fairness" references Astros cheated the Dodgers, so they sort of deserve it.  Remember when their guy broke the leg of a Mets infielder and his replacement made a key misplay in the World Series late, helping the Mets fall?  I'm not bitter!

The Jets continued to embarrass themselves (24-0!) though the Giants benefited from playing Washington, one of the few teams Daniel Jones had some success playing against.  A defensive score put the Giants up but then Washington tied it 20-19 near the end of the game. Went for the win! Lost.  This is the Giants first win though it counts. Plus, Dallas leads the division with two wins, playing later today.  Still kinda lame. 

Do Devil Dolls Vote?

Lionel Barrymore and a very good cast in support makes this Svengoolie entry enjoyable even if his somehow unrecognizable Mrs. Doubtfire disguise is silly.  Touching ending though his picture was plastered in the papers. How did his daughter (played by the actress who played "Jane" in the classic Tarzan series during the 1930s) not recognize him?  

The special effects of the miniatures was especially good for the times though the science of long distance mind control much less fleshed out. The French setting seems mostly an excuse for the Eiffel Tower scenes.  But, overall the story is good with nice pacing and so forth.

Did he imply he would commit suicide when he told her love that where he was going was somewhere no one would find him?  His wife committed suicide, after his wrongful imprisonment.  And, he readily admitted his path to revenge was cruel and inhumane.  

===

Thank You For Voting was a good book on voting, covering a lot of ground, though the "get out the vote" section was a bit too long for book of that size.  I saw the author on C-SPAN and she does seem to be very gung ho on the topic.  I plan to vote in person, early voting, which voting activist types like Rick Hasen suggests is a good idea to relieve the additional burdens of mail in voting.  Plus, think I screwed up my mail-in ballot last time.

Order Day

The Amy Comey Barrett hearings starting on Monday notwithstanding, Monday was a governmental holiday. So, the Order List was released by the Supreme Court on Tuesday. Another constitutional appointment conflict will be reached regarding patent judges. 

Justice Clarence Thomas wrote a statement regarding the denial of review in which he agreed with the Supreme Court’s decision not to take up a case but argued that, “in an appropriate case, we should consider whether the text of this increasingly important statute aligns with the current state of immunity enjoyed by Internet platforms.” 

Tuesday and Wednesday involved a few oral arguments, including an interesting case involving the reach of the Fourth Amendment in a case where the police shot someone but she managed to flee the scene. Was this a constitutional "seizure" for constitutional purposes. As the telephonic arguments were ongoing, you could switch and listen to day long hearings for the latest not quite legitimate Trump nominee to the Supreme Court. A lot of b.s. there, including her repeatedly assuring us she had no agenda.

Meanwhile, on the shadow docket, the Supreme Court with only Sotomayor dissenting (or explaining herself) on the record, stayed an injunction of a plan to end the census count. The new announcement is now that things will end on October 15th. Sotomayor appears to have made a good case that the stay was inappropriate given the strong case is not present to intervene.  She also noted that even if only a small fraction (maybe less than one percent) of field work is to be done (though that is a factual issue), that could be hundreds of thousands of people particularly of minority groups. 

Some were appalled at the move by the Supreme Court here, seeing it as a basically illegitimate move to enable Trump's screwing with the census count which has implications both in congressional apportionment but for allotment of resources.  Again, I think Sotomayor is probably right, but also as noted I am a census enumerator.  The count seemed about done in late September.  I question how horrid it is that now it is being finished mid-October.  But, Sotomayor notes that even a small fraction matters and in 2010 that fraction was seen as warranting additional action.  Plus, overall, why should one not trust this Administration at all?  That is sound policy.

Still, on balance, this very well might not be a horrible result. At least relatively so.  One can only guess what is involved, including the mindset of Breyer and Kagan, since the justices do not deign to explain themselves. For instance, the administrative discretion allowed here can help the Biden Administration.  Rick Hasen of Election Law Blog suggests (again) there might be some horse trading involving one or more other pending cases.  After all, net, what value is supplied if the dissent is a firm 5-3 over one dissenter and in theory others possibly (though this is not how people see it) dissenting quietly?  

So, mixed bag.  The confirmation hearings will continue.   

More Census News:  The election might in the long run make this all moot, but the Supreme Court took Trump's appeal regarding not counting undocumented immigrants for purposes of apportionment. This not only violates the "person" rule of the 14A, but below was found to violate statutory rules.  Unclear what will come of this. 

Judge Amy Coney Barrett Hearings Begin

SCOTUS off today for the holiday but the Senate Judiciary Committee started the ball rolling in stealing another seat.  Dems didn't JUST focus on ACA, but the dangers of overturning it was a major focus with big pictures of people who would be harmed. It was a bit much.  Amy Coney Barrett had an opening statement showing she is full of shit, including how she didn't expect the slot.  Am I allowed to call her the b word? She is the b word. 

Follow the Stars Home

 

I saw this movie a few times and saw it again (skipping a bit) last night since it is available on Hallmark On Demand.  

Various familiar faces, including an award winning actress there only present briefly.  It concerns a young woman (privileged, my you) decides to bring her pregnancy to term after finding out she would be seriously disabled. Meanwhile, a girl (actress all grown up now) with a mom with problems comes on to help her. Plus, a doctor has a long time thing for the mom, who by the way married his brother, who couldn't handle raising a disabled child.

So, a lot is going on.  As the link notes, you also have the woman's mother, who is a librarian, who is a major character here.  The father brought up that the child would have various problems if an abortion did not occur and the asshole has a point.  The mom asks the doctor if the child would suffer and well he doesn't answer, which is an answer.  One can debate the best choice here and focus on just her experience (again privileged, including costs of medical care apparently not a problem ... to be fair, maybe the book covered that ground more), but it isn't an easy choice.    

Anyway, it is well acted and again a lot going on, all handled pretty well.  Pretty deep stuff. I do wonder about the actress, I think I saw that sisters were used, who played the daughter.  Is she disabled or whatever word we should use in real life?  Hard to tell -- either way, the girls used were very good.

Demi Lovato

Demi Lovato -- who had various ups and downs with image and other personal issues -- posted a photo on Instagram happy about her breasts now that she is not so concerned about her weight. She does look good though again with the OD of tattoos (on her arm).  

"But let this be a lesson y’all.. our bodies will do what they are SUPPOSED to when we let go of trying to control what it does for us." 

Nature Movies: Ape Men and Eight Legged Freaks

 

Some time ago, I watched the second film in what most see as "the" Tarzan series (there being many versions), and it was pretty dark. This includes Jane thinking Tarzan was dead because of the doings of an evil heavy. A lot of early 1930s melodrama.

The first movie, which takes a while to get to Tarzan, had that in spades. (It was on TCM.) The whole African support team was killed and her own father -- in an ironic touch -- died finding the elephant graveyard (for its ivory) he and a younger guy was out there looking for.  Jane (Maureen O'Sullivan) is very good here too, including falling in love with Tarzan, and generally being a little sexy minx. Oh, after her putative love interest kills Tarzan's ape pal, Tarzan gets revenge by starting to kill the support team.  

Not to worry though -- only black natives were harmed except for her father, who had to die anyway to justify her staying.  Cheeta seemed to be killed in the climatic scene (rather violent) but don't worry -- he's okay.  The mini-tribal members according to Wikipedia actually was played by white midgets in blackface!  Really.  Plus, the whole thing -- with some help of stock footage -- was filmed in the United States. The racist aspects and some over the top violence (is this really a "kid's" movie?) should not be hand-waved here.  As a "pre-code" film -- the second film also got in trouble for being a bit too sexy including underwater nudity -- I assume it might had laid the violence on more thick. 

But, though we get a bit too much lead-up (if rather well done, especially noting this was the early 1930s), the film as a whole is rather good.  The production quality is an important part of the mix here as well as pretty good pacing and acting.  "Tarzan" ("white man" in ape speak -- his backstory is not explained, including where he got his knife) looks the part, but the real star of this movie again is Jane. Early on, it is shown (and she shows her mettle in a river action scene) she knows how to handle a gun. We get some "save me Tarzan" stuff, but hey, this is the first time for her in the jungle. And, that sort of thing isn't laid on too thick. She comes off as a strong young woman overall. 

The second "nature" movie was Tarantula, the Svengoolie film of the week. This is a prime 1950s monster animal film with scientific mumbo-jumbo and typical idiot characters and even to make fun of acting. John Agar was prime for this sort of stuff, the average white middle America hero from central casting. There were various familiar faces (to toss it in, the father's colleague in the Tarzan film later played Commissioner Gordon in the Batman series), including Clint Eastwood!  

The actual tarantula was not on the scene most of the time -- we get more of the relationship with the young doctor and cute grad student -- but overall it was a fun movie.

===============

To toss it in, the Yanks lost to Tampa in five, starting pitching a problem though their ace did well, including on short rest.  Losing against a team as good as Tampa in five, with the the finale being 2-1, is nothing to be too ashamed about unless you expect to win it all.  The Astros, in largely because of the expanded playoffs and other teams showing an inability to win playoffs (the AL central was particularly a shame there), is the other remaining AL team.  I reckon even some of their fans figure they need at least a year to have people move on from their cheating scandal. 

Tampa winning -- if only so much -- with a threadbare budget is rather amazing.  One writer criticized them releasing a not too expensive catcher, who did well there and is now thriving in Atlanta (the team left with the Dodgers, fairly easily pushing aside the Marlins ... the Padres, two aces down, couldn't handle the Dodgers though were oh so close early on).  

Somewhat fair, but the Rays have a plan and overall are doing pretty good with it. As to the Mets: "Just as egregious was the Mets' decision to flat out release d’Arnaud in May of last year and absorbing his $3.15 million contract without allowing him time to fully work his way back from Tommy John surgery." Has Bill Madden watch the guy on the Mets?  They probably should have found a way to get something more for the guy, but years of mediocrity suggests why they let him go. 

Diary of a Census Enumerator

The actual Enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct.

Trump is trying to screw the census as with many other things. By a vote of 5-4, the Supreme Court held that the attempt to include a question regarding citizenship was deemed illegitimate on agency law grounds. The Constitution -- both Art. I and the Fourteenth Amendment -- speaks of counting, "enumerating," persons. Not citizens. Evidence came out that the attempt to include a citizenship question was tied to a partisan rationale. Trump then shifted to trying to use only citizen information (obtained by other means) to provide the information used to apportion Congress. This is still in the courts. 

The citizenship question attempt failed, in part because the final decision came too late for the Trump Administration to try again, but still probably poisoned the well some. People already are wary about taking part in the census for a range of reasons, from laziness to privacy concerns. The push to include citizenship questions, which particularly has racial implications since certain non-citizens get particular negative attention, did not suddenly disappear as a concern because of a Supreme Court decision. 

Many, not just newcomers, are not too familiar with the overall concept, which for quite some time also included a chance to collect a range of other information. The basic information this time being age, sex (only "male" or "female"), race, ethnicity, family relations (marital and otherwise) and home/rental information (including mortgage). There are also separate more detailed questionnaires. 

Each household traditionally fills out a census questionnaire with the information tied to April 1st. There was a delay this year given the Big V so follow-up (including in person visits by "enumerators") continued over the summer. Thus, the greater sightings of people with census bags and people ringing bells, including looking for information for neighbors ("proxy" attempts). The original plan was to finish at the end of October. The Trump Administration decided to end a month early, but was blocked by court decision. 

The basic purpose of the census is to count the number of people (again, not citizens; even slaves were counted as "persons," if counted three for every fine) to determine congressional representation. The direct tax aspect never really amounted to much. The census also provides information to determine the needs of different areas, thus all those other questions. For instance, knowing how many people are in such and such an area provides a sense of how to apportion not just representatives but goods and services. And, the specifics -- such as how many have kids or are senior citizens -- spells out needs as well. The count is never going to be perfect, but best to try to make it as good as possible to know how to serve the nation.

I have a special concern here since I am a census enumerator, part of the NRFU (non-response follow-up) campaign. I have such a census bag and smartphone to input information obtained from people who did not fill out a census. We are given a daily "case list" of addresses (not names) to obtain census information for with an obligation to look for neighbors that have knowledge instead if the actual "respondents" are not available or for some reason do not want to provide information. A respondent not available or who will not respond for some reason (including a language problem) are due to get a little "notice of visit" slip. We were given a bonus to encourage us to finish by September 30th. 

A basic problem is that many said they filled out a questionnaire online -- too many to all be lying -- and for some reason it doesn't show up. Many simply have no desire to do so again. Also, quite often people are not home -- the day is 9AM-9PM (8 hours maximum, forty hours a week, though a few overtime authorizations) and rather regularly no one was home. And, even next door neighbors refused to admit they knew basic information about the people. A certain type of person might be convincing here but quite honestly that is not quite my superpower. 

After extensive online training, if mostly self-study (too much, I think), it's off to the field. A fun experience is certain apartment buildings where you need to wait to be let in. Training began at the beginning of August with field work starting mid-August. A few weeks of full work was followed up by a few weeks of on average of about twenty-five hours a week. Again, this was partially a reflection of skill-set since others had more ability to get successful visits. 

Nonetheless, I am not sure how much even the best of people would be for many of my stops -- I had something like twenty hits on my block alone and very few people were home. When they were home, they were not very helpful. A few simply refused to engage, such as one who would not even say if a neighboring house was occupied. By the end, people were starting to be rather crude, showing they were tired of us. 

I mainly received a case list of locations in my general area, it seen as not worth their time to send me somewhere during which I'm paid for an hour or whatever of merely travel. It would be particularly useful to speak Spanish (I do not) though a few other languages, particularly Albanian, popped up as well. We get a "language card" to show to people in such cases that provide a basic thumbnail of why we are there. I really had no basic need for that except for a few times at most. 

Overall, one has to not take rejection personally, the process rather depressing to me given net my success rate was low. It seems that at least in my area that the need for the end of October date might be deemed questionable. There was a limited number of cases left as the final days of September arose, from what we were told at least, though surely there were some that were not accomplished. Since we went by old address information, some addresses were vacant or not really addresses at all (such as a supposed separate unit at a private house). I personally have not received cases since the last full week of September though still am on call if necessary. 

Oh, we always wear masks (cloth masks provided along with hand sanitizer), which is okay, if making it harder to communicate at times.  It was at times a tad bit hot in the middle of August -- sweating while you are in the middle of asking questions is a bit tedious -- but turned out not to be that bad. This included only a few days when rain was an issue.  Holding an umbrella while trying to use a smartphone and holding/giving out/filling out paper forms is rather tedious unless it is inside.  And, I had a lot of private houses on my route.  One got into a groove, but again, it was often a project of futility. 

Kudos who did better than me and those who were pleasant when I stopped by. I will update if necessary. 

Court Reform: Devil in the Details

The path to long term reform there is harder to come by though reading in between the lines Biden/Harris not going on the record to confirm or deny their stance is telling.  It is politically sensible for them to do that.  On the merits, the best approach probably is to be agnostic while opposing confirming Amy Coney Barrett before the election.  "Let the people decide" has some merit now. Plus, it is largely a congressional issue.

A conservative path there would to address things along the edges such as a pending House bill that deals with ethics, open courts and other related issues that should have bipartisan support (though ethics calls to mind specific individuals).  A middle path is some sort of term limit measure, putting side the trickiness including the burdens of an amendment and the trickiness of trying to do it without one.  Again, there is chance for bipartisan support, partially since going forward it can limit Democrats.  

There are also other less talked about approaches. At the end of my last entry, I referenced a book from a couple years ago (e.g., it didn't factor in changes in the law regarding excessive fines) by a conservative appointment, Jeffrey Sutton, in support of state constitutional law.  Again, some things he said did not to me compute -- won't micro-target that here -- but the overall idea is something I support.  For instance, it seems to be dubious for the U.S. Supreme Court to worry about narrow questions of criminal procedure in various cases and apply it to the whole country.  Likewise, if a state wants to use a higher test for separation of church and state, it often is not some free speech or other constitutional violation to do so. And, many cases might be avoided if state courts just rely on state constitutional provisions.  

This goes to a general idea -- see, e.g., Professor Eric Segall -- that the Supreme Court does too much. There are various ways to limit their reach conceptually (such as the "Footnote Four" approach).  A more active approach would be to use congressional powers over the federal courts to do this. Congress did that in the 1990s by limiting federal habeas, which has issues in application, but the concept that only clear violations of federal law should be subject to lower court review there has some logic.  

Traditionally, especially before the Reconstruction Congress expanded federal jurisdiction, federal courts had less call to interpret state law.  And, not just because there was no Fourteenth Amendment. Somewhat related here would be something like requiring six justices to overturn national legislation or the like.  Segall's even numbered court idea in a fashion does the same thing since an evenly divided Court -- if it was split ideologically -- would need crossover to overturn things. 

Thinking long term, an approach with staying power can not simply be one-sided that appeals to one political party.  At certain times in our history, staying power was advanced because of long term party control. So, e.g., Jeffersonians and Republicans from the 1860s and beyond. Such unity in a way was seen in my lifetime -- the last fifty years was a conservative tinged period in the courts though it seems silly to say that for some since it wasn't completely so.  But, it wasn't one sided back then either in all ways -- John Marshall still controlled the Court and black rights soon went into a decline.  

How to put this in place is a hard question and ultimately some of it at least will just have to wait for history to play out.  The most likely amendment, however, is a term limit one and that is quite sensible. It might be best to submit again the opening statutory reforms cited above (with some study of the needs of lower courts that might later lead to additional judges) as well as a term limit measure as an opening gambit. It is quite true that the Democrats might have a small window. But, it might feel well to talk about fifteen seat Supreme Court legislation on February 1st or something, less likely to happen.  

Again, there are sound grounds -- both as a matter of norm correction and overall democratic-republican theory -- to significantly change ground here. And, it is not just a matter of court expansion. The details are as usual where the devil comes.

SCOTUS Watch: Abortion Pills, Court Expansion etc.

Of more than 20,000 FDA-approved drugs, mifepristone is the only one that patients must pick up in person in a clinical setting but are permitted to self-administer elsewhere, unsupervised.

So, maybe there was a reason the lower court found it a substantial obstacle to abortion rights to require it during the Big V. The Supreme Court (which will go telephonic for the rest of the year) punted. They sent it back (Alito and Thomas upset, again we have someone quoting Roberts solo concurrence about letting locals deal with medical issues, the specifics ignored, putting aside again it is just one justice who said that) so the district judge could get more facts. Noted it might result in a more narrow order. Do it within forty days. So, see ya in November?

This is a fairly notable thing, but it is again part of the "shadow docket," though we get a few words about what they are doing this time. It isn't put on the Order List page -- not sure how they figure these things out -- just the "Opinions Related to Orders." Meanwhile, Justice Kagan as circuit justice summarily rejected a mail-in ballot related request from Republicans without comment. We might get around seventy full opinions by a Supreme Court for three hundred and thirty million people, but they do some other stuff along the way.

Showing there are other ways to promote religious group, a liberal leaning group put forth a report summarizing its principles. Meanwhile, the Republicans are continuing in the most crappy way possible (members of the Judiciary Committee are even avoiding to get tested) to put someone on the Court promoting a different view. Third time might be the straw for some with those honestly wary about doing so arguing for court expansion. A basic point here, simply ignored by another "reasonable" [half-serious, half-sarcastic] take, is that it is necessary TO reaffirm norms.

Orin Kerr annoys me repeatedly, even if he also is a reasonable sort (he on the record voted for Hillary Clinton) enough to respect, putting aside his specific areas of expertise (Fourth Amendment). So, he calmly reasons things out -- good -- but goes off the rails at some point. I still am annoyed at his latching on to some senator comparing Trump to Stalin for attacking the press, skipping over the rest. He also was confused (he does a Columbo act at times) why dissenting Republicans are supposed to actually vote against their policy priors to reinforce basic norms. Such a mentality makes it seem asking too much to even temporarily stop a few judges to set a few basic boundaries.

it seems to me that the real cause of the claimed "norm breaking" is the gradual devolution, in both parties, to purely partisan Supreme Court votes in the Senate. This wasn't a big problem when Presidential and Senate control were form the same party. Partisan = confirmed.

"Claimed" norm breaking? Both sides do it! He later notes that he undertands the support for court expansion as the Dems "catching up" in the the game of constitutional hardball. Yeah, Orin. See, BOTH SIDES DON'T DO IT. Do they over time to some degree (Miguel Estrada was cited by someone -- some lower court judge held up in part since he was seen as a possible future SCOTUS nominee -- a favorite example) use politics in judicial nomination wars? Surely. Still, even there, one side played hardball more. This is seen by Leahy respecting blue slips while a similar courtesy is not done the other way. This matters. It isn't just that I vote Democratic.

The basic idea seems to be it was just inevitable and Democrats just had the unfortunate fate of being on the wrong side of things. As if, you know, if things were switched, the Democrats would do the same thing in each case. I don't believe it. This is not some appeal to purity. It just is that Democrats in 2016 would have been more wary (Kerr says as much! Dems are NOW being pushed to play catch-up) both given some traditionalists in key positions and if their candidate had as long of a shot as Trump. For good or ill, also, Democrats didn't go all in as much on nominations.

So, I call bullshit. Anyway, it doesn't matter on some level if the result is chance. The Republicans now three fucking times (oh so reasonable, Orin, I understand I'm just being emotional here) screwed in different ways with the nomination process. Talk of "real cause" here is again somewhat besides the point, putting aside that it's b.s. too. As at least one person noted, it isn't merely that Garland was not confirmed. It's HOW. Fortas had a hearing. It didn't go well and then cloture failed.

And, so it goes. Republicans specifically broke the norms -- again are doing so in a particularly crude way now as their dear leader going off the deep end -- and cannot even provide the fig leaf of "well, the public gets to pick." The solution provided is an amendment that locks in the seats at nine (since 1869, so I guess it has gone fairly well, but seems off to set it at that for all time) and have some sort of term limit scheme (details perhaps forthcoming). I think term limits with something to provide a time limit to help avoid confirmation delays is fine as far as it goes.

But, basically the other side gets to keep their ill gotten gains. Which isn't even accepted as ill gotten! Both sides do it! Just being reasonable -- hey, I said it was "lawful" to expand the Court and that I "understand" the sentiment. Just ignoring that something specifically blatant by one side is being done. This is on one hand aggravating, but again it is a problem in purely cerebal fashion too. I understand that in the real world that what might in the long run work very well will be imperfect and less than what seems "fair" to some people. So, you know, getting three or more seats in the end seems dubious. But, ignoring a basic principle here is problematic.

The norm violations or whatever you want to call it -- want to call it just blatant bad acting? Fine -- is also fit into somewhat related issues. So, e.g., it is more painful and so on because a minority gets long term power. The means there is as before not even the basic problem on some level though it is part of the mix. I have seen some specifically concerned about how SCOTUS handles voting rights as a reason to support expansion. And, it is part of a wider picture anyway -- Electoral College etc.

This op-ed mixes a discussion of the pro-democracy etc. value of expansion along with the need to not just let Republicans to get away with what they are doing. He goes off the limb a bit later on. If the Republicans manage to win an election, it isn't really fine if they have a "tit for tat" expansion. A train of abuses etc. is not the same as managing somehow to get back in power. Thus, there is a value in finding a way to avoid that. In past cases, that was really extended party control [Republicans, e.g., controlled the presidency for a while from the 1860s on.] Orin Kerr's amendment keeping things at nine (another person suggested eleven) tries for that. It's hard but maybe some sort of compromise or something will be managed long term. There were precedents.

Relatedly, you get the idea that there might not be enough support to expand the Court until it blocks some major legislation or something. I just do not know how far Biden and the Democrats will go to address things. We have a ways to go there, it being early October. Meanwhile, even people like Sen. Booker (who favors flashy ideological takes) are reportedly talking with Amy Coney-Barrett as if things will just go as normal. Pelosi spoke over all the "quivers" Dems had to use. Uh huh.

And, this makes a good argument that talking about the religious views of nominees is not a constitutional violation but realistically it is done so badly that pragmatically we should largely avoid it. Moving past all that ... Breyer is just so reasonable. And, maybe, just maybe, I'm about done editing this post.

(The above focused on the Supreme Court, but the lower courts also factor in here, especially control of circuit courts. Moscow Mitch has been filling those lower court judges like a drunken sailor or something, after Republican control held up a bunch of Obama nominees. It would be easier to expand lower courts to some degree, especially if there is a workload reason. Lower courts have significant power within their specific spheres. But, they have less than justices, obviously, and thus there is more flexibility there.)

One more thing -- noting by the way that I realize lately this blog had more courts related stuff than other matters -- I am in the middle of Judge Sutton's book honoring using state courts more to develop constitutional law. I wish I could find a book on New York's constitution and how it was applied by its courts. Anyway, it is fairly interesting, and do actually support the overall principle. Not sure about some of the specific arguments about the effects of let's say them arguably going too fast in respect to certain cases etc. But, it's an interesting book.

Bullies Often Are Just Scared Little Boys

We are getting reports of just how unhinged Trump is since being infected along with probably getting a sense of early election returns. His belittling the effects of the Big V (which doesn't even mean he's not hurt by it, since a big part of this is image, including self-image) almost gets lost there. It is deadly though -- just wearing a mask is not "masculine." See also, the Sunday Night Football guys being as childish. Dangerous and sad.

The same dangerous little boy is seen with the response to arrests related to a terrorist (white militia) plan to kidnap Gov. Whitmer (Michigan) with her strong response to the Big V a basic complaint. Trump responded by whining about her not thanking her while criticizing her for the same things that motivated the militia. He tossed in that he was against all violence, but even a child knows the concept of obligatory words over what really matters.

The "bully pulpit" only goes so far without more but it matters and there is "more" mixed in here too. To toss it in, Republicans are aiding and abetting this, Moscow Mitch's recently statement he didn't go to the White House for a while given their lack of Big V safety protocols only underlining the level of wrongdoing.

First Monday In October

And Also: As the day went on, more and more people -- the last count was like thirty, not counting people like housekeeping staff -- was found to be positive for the Big V.  Trump also continued to be so unhinged that reports are that Don Jr. was worried about it. He was released from the hospital and said he felt better than he did for twenty years and not to let the disease run your life.  The whole thing suggests the value of a congressional body per the 25th Amendment to check the health of presidents. Somewhat relatedly, this discussion on what to me is based on the Emoluments Clause specifically on congressional rules for tax records etc. is sound.

===

The opener of the 2020 Supreme Court term was a pretty busy one, including arguments again telephonically. C-SPAN did not have them on television, only providing a feed online.  One of the channels on the t.v. had the South Carolina Senate debate, but one merely had some political discussion of some sort that seemed not as important. Some at C-SPAN, like Brian Lamb, argued televising the Supreme Court is very important. This sense of lesser priority to me is rather disappointing.

First, we had the release of a long order list to generally get through the results of the "long conference" regularly done before the term to deal with pending matters.  Justice Sotomayor had two statements, as is her thing, flagging concerns in criminal justice cases including one involving lethal injection protocol. She finds a way (partially since the votes aren't there) to explain why she goes along with the denial but still provides strong concern about some matter.  The lethal injection case comes out of Ohio, which has postponed executions for some time now. 

The thing that stood out here was the final disposition of a long pending (it was part of a slew of qualified immunity cases that failed cert) case involving Kim Davis. As expected, she lost, but the joker was a long diatribe (putting her out as a martyr of religious liberty) against the constitutional right of same sex marriage by Thomas that was also joined by Alito.  Again, religious opposition to secular marriage was in place for quite some time (divorce etc.), so this isn't some unique matter. The hypocrisy of this has been cited by Jesuit Father James Martin.

It would be interesting to see if there is more to this story -- why was the case held so long? Was there some chance another justice ("justice") would join in or in some form of the opinion?  The lengths taken makes it difficult to see how any other justice would be willing to join even though one or more (Gorsuch and Kavanaugh particularly) might somehow be sympathetic to the concerns for religious liberty.  Note that Gorsuch's Bostick ruling basically left that to another day. The timing could also be strategic to have it in place for the new term.

The nomination of Amy Coney-Barrett -- her hearing even though multiple members of the Senate Judiciary Committee tested positive is next week -- could only encourage an idea that this would be a good time to release the statement.  Anyway, what a pathetic character she is to take part in this while the spectacle of Trump out there threatening the health of others, the "super spreader" nature of her nomination announcement apparently not a concern for her. Can those liberals who said she lacks a character problem please apologize for their fatuousness?

Anyway, mixed in with the orders are probably some things of some interest even if they don't stand out. For instance, it was flagged on Twitter that "SCOTUS just renewed government's ability to target/deport Ravi Ragbir, immigrants' rights activist who had been targeted by ICE for his political advocacy. " Prof. Victoria Nourse, whose writings on a range of issues I have found excellent and is a filibustered Obama nominee that particularly stings in part since she would be key to control of the Seventh Circuit, has a good op-ed criticizing the textualism of Coney-Barrett.

The order came in a lawsuit filed in May by a group of South Carolina voters, the South Carolina Democratic Party and the Democratic National Committee. U.S. District Judge J. Michelle Childs barred the state from enforcing the witness requirement for the state’s June primary and again for the upcoming November election. She concluded that the challengers were “substantially likely” to be able to show that, because of the “unique risks posed by the COVID-19 pandemic,” the witness requirement would violate the challengers’ constitutional right to vote. After the full U.S. Court of Appeals for the 4th Circuit left Childs’ order in place, state election officials (along with Republican leaders of the state’s legislature and the South Carolina Republican Party) came to the Supreme Court last week.

We also had a "shadow docket" decision in which the Supreme Court intervened in a pending matter to make sure people have a bit harder time to vote.  We did not actually get an explanation why this was done, including given "the head of the state’s election commission has said that the witness requirement does not help to deter voter fraud."  Three justices would have gone further (why? again, no comment), there being an exception for those already submitting, including a two day window. Why two days? Again, no comment.  [Rick Hasen has more here.]

Well, Kavanaugh did provide a short explanation, citing two reasons. First, he cited CJ Roberts (one person) that local governments should be given wide discretion to handle public health matters.  The actual case involved there was special rules in place to deal with the Big V, not inaction in such a way that makes an existing law particularly concerning for a fundamental right. The second is the "Purcell" principle, put forth in the shadow docket itself, which was cited as an inclination (not absolute rule) not to change the rules near an election. But, (1) not absolute (2) the original lawsuit was months ago. If anything, this seems to be the change near an election.

As Hasen notes, one can only speculate, but no dissent suggests a sort of "deal" to allow the exception.  Maybe so and personally I think such "horse trading" is not somehow inherently illegitimate when multi-member courts work out what the law should be. My problem would be that you need to actually explain yourself. I would probably still find the result here problematic, but that is separate from the "since we say so" ruling.  In fact, this order was not even put on the normal order page; you have to go to the less well known "opinions related to orders" page to see it.

The state electoral official statement underlines the weakness of the state case here while also showing how "voter fraud" concerns continue to burden voting rights, evidence of that being a problem still lacking. I am unclear how harsh the result here is specifically as to requirement that requires voters to sign absentee-ballot envelopes in the presence of a witness.  This would be in part a matter of how that is enforced.  But, this is part of a wider whole, so no one case will show the results.

Some Iffy Books

Helped surely from reading so much more online, I'm less able to read books that in the past would have been fine. I'm re-reading Housekeeping (also a film) and darn is it hard-going. A little of the flowery text goes a longggg way. The well received World of wonders: in praise of fireflies, whale sharks, and other astonishments has a similar problem.

Also, I checked out (maybe again?) the Beyond Abortion book, and in general didn't care for it. Didn't like the style -- seems like a first draft or something, plus leaving a lot out.

Supreme Court Update (Sports Too)

Most of the three game Wild Card series were done in two, including the Marlins over Cubs and the Twins continuing their run of futility.  The last game, scoreless mid-way as I type, is one of the exceptions (Cards/San Diego).  Meanwhile, to 0-3 teams faced up for Thursday Night Football, the Jets and the third quarterback time Broncos. The Jets got to the QB in the 4th for two defensive aided scores (if one that was dubiously careful) but they blew it in the end. The ability to end the game without a penalty put a bow on things. The head coach for some reason has job security.

===

The big news -- coming after many went to bed though hints were in place earlier -- is that the First Couple has the Big V, after Hope Hicks was reported (not by the Administration) to have it. After that was known, Trump still went and exposed people at a campaign event. Yeah, that is why the "we need to aim high here" stuff isn't totally in place.  He went to Walter Reed today, upping the drama, but who the heck knows.

This has Supremes implications since there was exposure (though there has been reports the nominee already had it) at the announcement event last Saturday. At least two Republican members of the Judiciary Committee (quarantine rules require more time than the scheduled hearings, but can it be done virtually?) have the virus now.  Maybe, it was a "character issue" for the nominee to take part without social distancing and the like.  Meanwhile, SCOTUS released details for telephonic arguments next Monday, the beginning of the 2020 Term.

There was an order regarding a census dispute [meanwhile, for now, a lower court ruling means the count continues for another month]. As one tweet from a court watcher phrased it: the Supreme Court "agrees to fast-track briefing in dispute over whether people living in US illegally must be included in reapportionment of congressional seats. Orders challengers to respond to government's appeal by 10/7."  More important, an order list today granted some more cases, including a potentially important Voting Rights Act case.  Alito is not taking part in one, so that's seven to eight people involved in deciding the matter.

The tainted Court returns on Monday with orders and orals.

Sports Sunday: New York Mostly Loses

The Mets started Saturday's DH still alive in the playoff race (and the other teams broke down as necessary!), but they had to win all three left. They lost all three, leaving them in last place (Nats win the tiebreaker). Brewers got in under .500.

Meanwhile, the Yanks lost 5-0 on Sunday to the fellow playoff Marlins while the Jets and Giants (previously of the "at least they were respectable" class) embarrassed themselves, the latter versus back-ups. Buffalo (with a help of a questionable penalty) avoided losing, after blowing a 25 point lead. Giants do benefit from a division where the other teams have all of 2.5 wins. Baseball playoffs begin today.

Amy Coney Barrett: Spits On SCOTUS (like NG and BK)

Amy Coney clerked for Scalia when I clerked for RBG. I like her, she's brilliant, and I respect her religious beliefs. She's "the Conenator." But doing this now is bullshit. I hope Amy will be a hero and turn down the nomination unless Trump wins. End this awfulness now, please.

— Jay Wexler (@SCOTUSHUMOR) September 26, 2020

Compare this, where (however it bothers you), she is praised but the basic fuckery of taking the nomination under the current situation is bullshit. And, Jay Wexler saying that about a friend, or at all probably, is notable from what I can tell -- he is one of those nice sounding types who don't talk like that blithely. Compare it that is to the winner of the Neal Katyal/Gorsuch 'hey he's a liberal!" Award winner ... Noah Feldman.

This is the woman who said that Obama in 2016 shouldn't have nominated someone (an older white moderate guy Republicans up to and including Chief Justice Roberts likes) someone who would shift the Court.  

[The discussion here -- which takes a modified Josh Marshall/don't get involved approach by from what I can tell saying they can show up to the hearing but not ask questions -- notes the hypocrisy claim is off. Looking at the full video -- noting it is just there -- he has a point. He does eventually suggest she is defending, not just describing, what is happening.  But, she doesn't say it is the only right approach. Again, in that interview. So, I probably kneejerked there some. See my whole remarks.]


Reading her remarks at SCOTUSBlog accepting the nomination from Trump -- the guy who can't say he will accept the result of the election and yet again was the subject of a woman saying she was sexually attacked by him [this really pissed off the Strict Scrutiny Podcast women] -- made me fucking pissed at her.  Immoral hypocritical asshole.

Let me again quote her FRIEND who says as well (as did I! at least, if the choice was her, Kavanaugh or some cookie cutter Federalist Society person) he supported her nomination for the last seat. This after she accepted the nomination (on Twitter too):

It’s so disappointing that Amy Coney is letting herself be so blatantly used for political purposes by a man who assaults women and brags about it, puts children in cages, mocks the disabled, and lies to no end. A seat on the Court isn’t worth cooperating with such depravity.

"Disappointing" is one way to phrase it.  Note that RBG was not buried yet. Obama, probably taking too long but still, waited a month. A week is seen as generous now.  Again, per the SCOTUS website:

A private interment service will be held next week at Arlington National Cemetery.

A few people, including a criminal justice warrior, was upset at people quoting RBG's dying wish that someone else nominated the person to replace her.  (Ted Cruz had "asshole had a point" cred when he opposed a Senate resolution in her honor that tossed in that bit via the Democrats; it shouldn't be there in a non-partisan, non-controversial resolution.)  That is a bit much, especially right after she died. But, this sort of thing is a bit disrespectful, eh?  And, thought Rewire News Group (new name for Rewire) Boom! Lawyer podcast referenced that, who else did?

Josh Marshall says:

Don’t participate. It’s madness.

I don't believe all the Dems won't meet with her etc., but the "Garland treatment" does seem appropriate.  I really didn't think that there was a chance (though people dream about it -- it's akin to talk of impeaching Trump judicial noms left and right) of even a strong attempt to pack the Supreme Court.  Or, however, you want to phrase it. But, this sham travesty, for RBG (the sixth seat to me always was different, including on an emotional level, which is a thing for humans) makes it possible.

I was hopeful -- admit it -- that Scalia's death would result in a 5-4 Court, a change that was due after decades, including six of seven (!) plurality/majority wins.  [One can count the last one.]  Merrick Garland would have been an objectively good choice.  He would not likely to be on there for thirty years into his mid-nineties.  He was someone Republicans said they liked. He was (really) a moderate liberal, on a Court that would turn on them (Breyer, Kagan, Garland, Roberts and Kennedy ... at times ... would be the core of the center).  Went another way.

Enough.  And, sorry if it makes Rick Hasen cry, but this whole thing makes the whole Court illegitimate.  It has to be expanded. As I have noted for years, the federal courts are not merely above the fray independent guardians with judicial review powers. They are filled via a political process, which affects the final product. The process, however, has to be legitimate, including in a constitutional norm way.  "I'm not touching you" while your sister sticks a finger an inch away is not that.

Talking about process, how many kids she has (she's younger than me and has -- by a mixture of ways -- seven damn kids), her religion (Dems are so anti-Catholic their House Speaker and nominee are both Catholic!) etc. is dust in the eyes here. I guess it's time to write some justices again.

ETA: This clip pisses me off.  No "character issue"? She took the nomination, including when last time she said Obama should not do the exact same thing (and as Kate Shaw underlines, the shift is more blatant here than with Garland), enabling Trump here. The election dispute is "not her fault"? She chose the job and would choose to take part if she doesn't recuse.  Can't we bluntly say what the fuck is happening? Call her out Melissa Murray or Leah Litman!  You can do it behind the scenes.

Baseball

I noted my lack of passion for baseball this year and mixed feelings about various new rules. They had COVID issues, but not as many as one might fear. Overall, I watched. The Mets, who are still not officially eliminated from the expanded playoffs (elimination number of 1), had their usual disappointing "should have been better" season. Usual injury woes. New star: David Peterson. Usual high points and "we can do this!" Usual failure.

Compare the Marlins, who besides looking crisp each time the Mets played them, crafted in a sort of garage sale way a playoff team. Teams do manage to work with what they have and not spend 10 million or whatever for fifth starters. Consider Tampa, leaders of the AL East. The new Mets billionaire owner picked Sandy Alderson to run things. Let's see how that goes.

Update: Mixing regular with novel, playoff hopes ended in a seven inning makeup in a game where each ace for the Mets and Nats (lousy season) struggled, the tying run for the Nats came via an inside the park home run when Dom "not really an OF" Smith ran into a wall and messiness/wildness contributed to runs too. 4-3 loss, Degrom gets a No Decision.

SCOTUS Watch: #RIPRBG Edition

The first Monday of October is around ten days away and around now the justices are getting prepared to have a "long conference" to deal with lingering issues. This time a special thing overshadows all, as with her bestie Scalia, particularly because of partisan battles. The last death on the bench that went smoothly was Rehnquist, with Roberts easily slipping in. 

Of course, the thing that dominates the week that overlaps this entry is RBG's death. I have commented about it and won't dwell too much on the issues here.  The events includes lying in state, which one female rabbi noted on Twitter is okay -- Jewish law is flexible enough for her to get the same honors of other great public figures. We can also assume that even if she did respect Jewish traditions, she was liberal enough there to work that in.  (Sighs deeply.)

Obama, for whatever reason, waited like a month to nominate Garland, in part because he wanted to do things right and figured McConnell would likely block the guy anyway.  Trump and the Republicans have a quicker timetable to address, plus control the process as a whole.  So, basically, the idea is to wait until the funeral is over or some such.  As expected, leaked on Friday, Judge Amy "Obama shouldn't pick someone who shifts the Court" (2016) Coney-Barrett was nominated.  She leaves a lot to be desired, if we had to have someone, I rather her than Kavanaugh? Now? It's just bullshit, especially with Trump finding it a problem even to say he would accept the results of the election. 

One liberal Dem did not wait to offer a statutory term limit bill, the rules not applying to current justices, but otherwise (a big caveat) seems workable for argument. The idea the powers that be would actually allow it is much less unclear.  My reading of Art. III also suggests forced retirement (the number is kept at nine withe a nomination in the first and third year, so the most senior has to retire ... a clock is set so the Senate cannot simply filibuster) is of dubious constitutionality.  Some have tried to argue it is not, but unclear again if it is clear enough that it will pass muster. 

The bill does help advance the conversation of a measure that very well might get some sort of bipartisan or cross-ideological support, even if a seemingly longshot amendment is required.  Once an amendment actually is passed Congress, one wonders if there will be some push for more. A major one would be the ERA, which three more states allegedly ratified.  Biden supports some sort of campaign amendment, as I recall. etc.  Will the next few years bring forth major constitutional change?

One thing cited is that the current Supreme Court leans Roman Catholic with six of eight justices (or whatever) either Catholic or conservative Catholic-like Christians.  In that mix are conservatives and Sotomayor, who is a sort of secular lapsed liberal Catholic.  Note how they aren't even diverse in the sense of Catholics.  Meanwhile, Bill Barr received an award from the National Catholic Prayer Breakfast, whose founders included the likes of Rick Santorum and Leonard "Federalist Society" Leo.  This award for his "Christ-like" behavior came in between two executions.

I have not "deep dived" the executions this year as I did one year, but the now seventh federal executions generally each had issues.  Raising my hackles again, we had two no comment orders rejecting final appeals, an execution not deemed worth comment by one justice.  The first relied on the defendant's lead lawyer not being able to show up because of COVID, a theme (including family members of victims or religious assistants) of various case. No justice -- even when they flagged other issues -- commented on that issue.  The personal reason was the ironic fact the family of the murderer also lost a son to a murderer, that one getting prison.

The second relied on dispute over what the federal statutory death penalty rule required, here arising since Texas (!) requires more time between the death order and the execution.  A possible reason would be that the person was only nineteen, some evidence being present that those under 21 at least should not be exercised. Conservatives not liking the 18 line, I can see this being a lost cause. OTOH, the conservatives (RBG and Sotomayor flagged their concern) don't want to deal with this issue either.

I find this rather outrageous -- other than Timothy McVeigh, two people were executed by the feds in the modern era (post-1976) and there has been clear dispute in the lower courts on the rules here. There should be clarity BEFORE you execute (so far; no one else is scheduled, but who knows) seven people. Yes, this one was heinous -- though the justice of executing the guy after twenty years is unclear to me -- but the ones that will get a death sentence often are.  Basic fairness is clarifying a basic procedural matter, even if I'm sure the result will not be pleasing with this Court.

Wonder how Charles L. Black would feel about trusting the courts with his human rights effort today. Over twenty years ago, toward the end of his life, he wrote A New Birth of Freedom, which rests a system of national human rights on the Declaration of Independence, the Ninth Amendment and the Privileges or Immunities Clause.  He is not a fan of substantive due process, including because it encourages people to be wary about an open-ended rights process [unclear if the people who are would care who one does it].  He includes a chapter on the importance of affirmative rights like fighting poverty, noting something like that is more a legislative function.

I re-read the book this week -- perhaps well timed -- and find it fairly well argued (if a bit rambling at times) though the guy was writing in the 1990s. The courts were already somewhat conservative, including the Supreme Court, which you'd think he at least flag as a possible problem.  I think the overall argument is sound on a basic level. Substantive due process assumes an overall "liberty," which the three sources provide a useful source.  He also provides basic ways to reason out things via a common law mention, notes the limits of majoritarianism and defends judicial review. Of special note there is the people and Congress (since the Judiciary Act of 1789) support it. 

I still think it a bit blithe to focus so much on the "pursuit of happiness" as he winds up doing near the end.  I think there is a variety of ways to get there and Douglas' approach in Griswold, substantive due process etc. all provide some value.  And, he notes that rights are not absolute. That should go to the idea of federal judicial review. How to break that down is uncler, but maybe we will hear about it in the years ahead.

Some books

With #AbolishPolice getting more attention given recent protests, The End of Policing by Alex Vitale from a few years back might be getting another look. It does not spell out -- as some do -- the alternatives to our current system of police and punishment.  So, e.g., what do we do not only for relatively easy cases (sure, decriminalize drugs or sex work) but things that everyone generally accepts as criminal (e.g., rape or murder). 

The book provides a general refutation of the idea that police are there to protect us, arguing the modern police department was basically formed to hold down outsiders. It then provides a look at various areas (e.g., drugs, schools, mental health and border security) where police basically worsen the situation.  And, like atheists who find liberal Christians and the like basically part of the problem, "reforms" (e.g., drug courts or diversity in police departments) are seen as of limited value at best.  The "alternatives" tend to focus on taking police out of the picture.

I think the book (a little over two hundred pages) makes some good points, but found it too one-sided.  Such will be the nature of such works, sure, but at some point it bothered me.  I am by nature a hybrid: tend to find things are not easily split by black/white, even if there are some firm lines to draw. So, yes, I think the traditional idea of God is misguided, but also think simply saying the whole thing (or "religion") is bogus is as well.

Anyways, to toss them in, read a few other books to finish off the summer season (RBG dying basically led us into the fall -- what will it wrought?!).  The Indomitable Florence Finch, by a former Democratic politician turned history writer, talks about a Filipino-American who resisted the Japanese during WWII.  It is particularly good since it has a range of focus, including her former boss as he survives a long internment.  The Unexpected Spy by Tracy Walder is about her experience in the CIA (mildly redacted) and FBI (where she suffered sexism), she ultimately ending up being that history teacher she early on dreamed of being. 

Also, not as new, is a book on the French Jewish socialist and prime minister, Leon Blum by Pierre Birnbaum. It's from a collection of short Jewish histories that includes one about Louis Brandeis that I read.  Blum's life spanned from the 1870s until 1950, so he survived among other things imprisonment during WWII, if in better quarters than most Jews.  Book is a bit academic, but was a pretty good summary of someone new to me.

Finally, began the new season with a re-read of a 1969 book that is really a report by The Community of Psychiatry and the Law entitled The Right of Abortion: A Psychiatric View.  I found it in a used book store. It argues that abortion should be the choice of a woman, treated as a medical procedure.  The discussion overall holds up, down to a reference to a then minority viewpoint that IUDs don't actually stop implantation but fertilization itself.  Ditto talk of post-abortion trauma being basically a myth and that the whole issue is ultimately a personal religious choice.

A timely read with RBG's death and the chance that the person to be nominated will have a very different view on the subject. 

More on RBG

As with the death of JPS, Justice Souter's brief comments says it as good or better than the rest: "Ruth Ginsburg was one of the members of the Court who achieved greatness before she became a great justice. I loved her to pieces." I miss that guy. Note the absence as before of Justice O'Connor, who has been in decline for a few years now. Her death will come at some point.

There has been various good obits, including by Irin Carmon (who co-wrote a book about her) and Linda Greenhouse (the long time Court reporter and now biweekly commentator). Linda Greenhouse at one point noted that RBG was considered a judicial restraint liberal on the court of appeals. She was there for over a decade, so that perhaps should get more attention.

On SCOTUS, she was more traditionally liberal, if (except for some key dissents) not likely to write in major cases except for sex equality related ones. This is partially a result of the control of the Court. OTOH, it is also partially her skill-set in procedural matters, which was a particular expertise of hers. One person cited an opinion of hers protecting a woman who couldn't pay the fees required in a parental termination case. This equal protection principle was particularly important because of the interest (parental rights) at issue. Kennedy noted the line of cases mixed due process and equal protection interests, a theme he later used in Lawrence and Obergefell, in the latter in part citing this case.

(One interesting foonote is the citation of Lindsey v. Normet, which is repeated part of a string of cases cited to show that economic and social legislation generally, especially against some claim for benefits like housing or the like, should be weighed using rational basis review. But, here, it is used because the opinion did strike down a portion of the process challenged. So, it was actually not a total loss.)

Biden has drew the line -- the winner of the 2020 elections should be the one who picks her replacement. Reports are that she on her deathbed dictated a statement that she strongly wished the next president to do the deed. I doubt anyone is really surprised except perhaps by her making it known. Biden also made the important comment that the normal process to confirm justices takes longer than the time between now and Election Day, which CNN, e.g., showed in a recent article. RBG was confirmed in fifty days, which might be a talking point. But, that was before the 21st Century and was pretty quick anyway. Plus, not so close to an election etc.

I also saw at least one law professor noting that if a confirmation occurs before Election Day or during the lame duck (assume Trump + a Republican Senate in 2021 might change the equation), that moderates will be pushed into supporting court packing. She might be basically talking about herself since the person strongly opposed it in the past. Lyle Denninson, the SCOTUS reporter vet (he's around 90 now) still opposes it. But, then again, he in reply to one comment noted we were "fine" at the moment, which was just funny even if limited to the state of the Senate.

I thought in 2016 that Scalia died early enough that it was fair, especially given the pick, to confirm a new justice. It is harder to talk about that in late September with current practices (including Gorsuch) taking two months or so to confirm especially. You can talk about "technically" the person elected is still in power, but dying in mid-February (and picking the person -- to me a bit too long -- in March) is rather different than the situation now. But, the precedent was set in 2016. It will just be damn wrong, putting aside who we are dealing with, to shift again.

McConnell, right after her death was announced, did so shift. Somehow the control of the Senate and presidency together matters, not just the right of the people to decide in an election year. It's Calvinball. Lindsey Graham too seems to have shifted. Such an asshole. The gentle ladies of Maine and Alaska might hold. That "might" very well might be too optimistic. But, you need four if the Dems hold. We saw that with Kavanaugh. I thought Amy Coney-Barrett was better than Kavanaugh, and in some role she might be okay on SCOTUS, but don't want her for RBG.

Will the Dems, if they can, expand the Court if she is confirmed in October or December? I just don't know. But, with the ERA, statehood for D.C. (and Puerto Rico?), the end of the filibuster for legislation, etc. up in the air, the 2020s will be rather interesting. If some travesty happens in November, still so. Just in a more dark way. Not that 2020 has not been so very dark. RBG's death, if well timed for her Jewish nature on Rosh Hashanah (those who die on that day are deemed particularly honorable), adds to it all.

SCOTUS Watch: Almost October Edition

Update: Stolen Seat Gorsuch, as noted below, took part in some public event remotely in honor of Constitution Day and honored RBG, who received some honor, but did not personally show up. So, it sounded like things were the same, as she fought cancer (again).

It has now been announced she died. Moscow Mitch via his Calvinball rules says Trump's replacement for her will get a vote. We shall see. Dems need to stand up. It takes a bit of time, maybe over a month really, for the normal process of confirmation to occur. Either way, Dems have to draw a line -- no confirmation before the new presidential term or expansion of the Supreme Court. RBG bet on HRC or outliving Trump. Thought she'd do it.

I guess, noting her great contributions, it reminds us she still with but one person. Some will do a "told ya so" regarding their belief she was selfish for not resigning during the Obama Administration. If that makes you feel better. Anyway, her legacy, contra one comment, cannot simply be voided now. Too much has happened in the last forty plus years. Let's hope the current society she helped form will help address this.

==

I noted recently that this month had a few more non-presidential primaries. One more notable election: it looks like we will have the first trans state senator.

September 17th was Constitution Day, in honor of the day the Constitution was agreed upon at the Constitution Convention. Breyer and Stolen Seat Gorsuch (one person noted on Twitter he now has a beard; another Ted Cruz?) had appearances per SCOTUSBlog.

Breyer left the law students with a piece of advice: Participate in civic life. While waving his pocket Constitution on the screen, he smiled and said, “The people who wrote this thought, if you do not participate, this won’t work.”

Yes. The current participation moment, of which I'm taking part as a census enumerator, is filling out and helping ("proxies" give information for neighbors) with the completion of the census. We also are working toward the November elections. A range of things are involved there. Plus, there are other aspects of civic life. The effects of a single person there can be hard to quantify (see the duty to vote book) but it adds up as a whole. I'm concerned like Breyer with educating and furthering civic enagement.

Not sure when it occurred, but at some point in the last few weeks the Supreme Court updated its website to provide links to webpages that are cited in opinions. They post downloads of the pages to avoid dead links. They also announced, at least for the October sitting, that they will continue telephonic arguments. These arguments were appreciated by many people as promoting openness. On that front, I think more use of the page to post speeches and appearances (such as the Breyer one) would be ideal. Opinion announcements. And, perhaps recognition by Roberts during the argument that something different is going on.

Such things, including personal involvement by state supreme court judges, are seen in courts below. So, doubting this idea that protests (they don't need to release the video live; can edit) and security issues cited by Breyer. Not that this level of thing is necessary, but four women state judges (maybe inspired by Strict Scrutiny Podcast!) actually started a podcast to talk about state courts. Posting a video on the Supreme Court website introduced by a justice wouldn't be a bad idea though; not sure why they can't post a basic "intro" type video there. Like the one they play for tourists.

We are getting closer to the October 2020 term. They will soon have a long conference or whatever to catch up with all the petitions and stuff. The term is actually about two weeks away. Not sure how much time that is in Big V time.

History/Mary Ziegler Books

First off, I like the "legacy" blogger and repeatedly had issues coding in the new style.

I recently added a teaching website [a relative is a high school teacher and labels me "Joe" and "a historian" -- ha ha; well, I do have a BA in History and decades of self-learning ... I think it's fair] to the blogroll since I'm helping with the content -- the word finds and summaries. It is interesting, shall we say, condensing some terms into one line and topics into two pages. Also, some of the world history stuff is fairly new to me. I somehow (almost; hard not to toss in a comment about alleged racism) wrote something fairly neutral on the Trump.

Mary Ziegler wrote three books on abortion with the first probably the best about the decade or so after Roe, where there seemed to be room for some middle ground ("pro-family" as a legitimate label). Her latest seems more repetitive and not even covering some of that ground though a history (the "law" subtitle really covers that ground too) since Roe. The middle book explains how abortion overlap with other issues. I might have looked at it but don't remember it. She ends on a pessimistic note regarding the divide in place.

SCOTUS/Voting News

While various new Trump news dropped (including him telling Bob Woodward in February that Covid is serious and then lying to people about it), he released another list of possible SCOTUS justices. Some think it won't move the needle any more, people already locked in unlike the last time when it was a more potential thing.  Who knows.  As others note, the Dems should pay more attention to the courts.  Why exactly it is avoided so much, even low key things like tweaking ethical rules, is unclear.

There was an order list on 9/11, the last summer order, delayed because of the events.  Same nothing much, this time with a list of attorney disbarments.  This is from some time back, so don't know why it took this long to have her disbarred on the Supreme Court level (was it just a token bar membership for the prestige?), but here is a bit of one's problems:

James Moses, a St. Tammany Parish resident, died in 1977.   Shortly thereafter, the decedent's brother, Joseph Moses, who lived in Ohio, retained respondent to handle the decedent's succession and represent his four minor children.   Joseph Moses was appointed administrator of the decedent's estate and tutor of the four minor children.   Through the following years, respondent handled numerous legal matters connected with this succession and tutorship.   However, between April 6 and June 12, 1984, respondent, without authorization, removed from the succession and/or tutorship accounts a total of $97,000 by writing eight separate checks and depositing them into her personal account.

The lower courts also had two key voting rights opinions. First, a 2-1 ruling (SCOTUS refused to get involved earlier though Sotomayor put forth a wish that the matter would be addressed before the election) held that letting those over 65 vote by mail with reason during COVID is not a violation of the 26th Amendment. To remind:

The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

The two judges decided that the rule here was a special additional benefit, not a denial of a right.  The special situation alone suggests the confused matter here.  It is like if a gate somehow is put up blocking people's ability to vote, but only those of a certain age is given the key.  The net result here is "on account of age" one's right to vote is abridged.  It is a form of hairsplitting to avoid this.  Guess it's nice to have a bit of 26A law though.

Ditto the due process and other problems with the perversion of a ballot measure to enfranchise released felons.  I still remember 2000 in Florida.  More of the fucking same.  We even have Judge William Pryor, who I recall the battle over, writing with Jill Pryor among the dissenters.  It is even more symbolic -- besides Pryor, the whole majority is made up of Trump appointees.  Deprivation of voting rights help elect Republicans (problems with the felony disenfranchisement law was a key factor in 2000 -- over time, history gets repetitive to observers) who put judges on the bench to uphold such efforts even when the people vote to temper the rules.  It is a sort of feedback loop.

There is also problems in Wisconsin, the state supreme court there again by an ideological vote fucking things up.  Is it 2021 yet? Someone, quite validly, on the anniversary of 9/11 noted that COVID is the most compelling moment of history in her lifetime.  In both cases, who runs the show is very important.

Let's never forget that.

Murdering Fascists in the U.S.? Don't Do it

Prof. Erik Loomis provides some good material, including his grave and labor segments, often mixing in some nuance. Also, push comes to shove, he realizes the need to support imperfect people in the real world. But, he also likes to talk like a tough guy, including tossing around "fascist" and the like. Fine.

Still, this talk of some "moral" right for this guy to murder people is immoral in my view. The critics might be easy targets but he sorta helped. His death sounds dubious though his own sister seemed to suggest at one point it might be suicide by cop. Oh. John Brown was an unhinged fanatic. I'm wary of the idea that some ICE agent should be labeled in dehumanizing terms. But, this crosses a line. This is not the same thing as questionable use of violence at some labor protest. Loomis is primping too much to see that.

Election/Supremes News

And Also: Sarah Posner's book  Unholy: Why White Evangelicals Worship at the Altar of Donald Trump notes evangelical support of Trump is partially a matter of him supporting them (in return for loyalty), but it's more than that.  Of special note, he is seen a strong man type who unapologetically attacks their enemies. 

His success also proves his bona fides as God's tool.  Also, she explains how for decades a racist, nationalist, anti-democratic (small "d") as well as strongly conservative wing of the right existed.  This also included support of foreign leaders such as Putin while being against basic liberal American values.  Trump is not new here, but is a George Wallace figure sought by some for years.  He also has shades of being a televangelist himself.  It is a good though dreary book but at some point it got a bit repetitive.

====

The final state primaries (non-presidential) are this month, starting this week with Massachusetts.  (New Hampshire, Rhode Island and Delaware are later in the month. I'm not aware of any big races in those states that received national attention,)  But, to flashback there, that state was a rarity in that more than 10% of the Republican voters chose someone other than Trump.  In the end, that one Weld delegate was not heard from.

The notable thing for the state primary is that Ed Markey won the Senate Democratic Primary over Joseph Kennedy "other than being young and a Kennedy, no real reason to vote for me" III.  Markey was the progressive choice, including his support with AOC of the Green Deal. On the Republican side, Shiva Ayyadurai got forty percent of the vote as the conspiracy Trump candidate.  Also, one race underlines the value of instant run-off voting, the winner obtaining under 25% of the vote.

In Supremes news, RBG presided over a wedding. Also, after the Supreme Court struck down his latest trial, prosecutors decided six was enough. Curt Flowers is a free man.  Only took over twenty years. But, mostly, their summer break continued.

Donald Trump's Racism is America's Racism

Prof. Sandy Levinson comes off as a friendly sort though on his blog has had a more jeremiad tone that strongly lashes out against what he sees as glaring issues.  I think he lays it on a bit thick, but blogs at times are there to vent.  For instance, Reality Check (Rewire) used to have comments and some of them to me was a bit much. I understood the need to have a safe space, so to speak, to strongly state one's views all the same. 

Anyway, is one thread a Trumpy (BB) that shows a bit more nuance (bit of a trap, really, given how locked in he is all the same) than another (BP) basically refused to recognize our systematic racism. Even historically. Hey some older black athlete praised Trump. Must mean his racism is open to reasonable debate.  Compare this that provides some examples and argues Trump's racism is America's racism.  After all, he needed help.

One thing this piece does is share the blame. Trump is a particularly virulent form of something that taints this country.  As with other bad things, there are degrees. So, if something is bad (let's say a virus, which racism is in a fashion), it can be weak (like a vaccine) or strong. So, how bad Trump matters even if his alternative (and his party is corrupted here -- both sides aren't the same here, sorry) would be bad too.

The piece also suggests that it goes beyond how far the Republican Party itself has gone. On some level, it is broader than that. Even those who are not Republicans don't oppose him enough since on some level he is not completely foreign to our society. So, let's say, certain Democrats went to his wedding(s). Or, he is not seen as so totally improper (my example would be like if a cat ran for POTUS -- we wouldn't have horse race coverage here, so to speak, would we? it would simply be "hey, a cat can't be POTUS ... come on now!"). In so doing, society normalizes him.

And, part of this is that we are still a racist country, who even if we don't like it, accept racism is part of life in some fashion. And, then something really horrible happens, we are upset, but then let it keep on going w/o completely changing things to stop it from happening in the future.