Supreme Court Watch: Day 2

SCOTUS News: We had more opinions on Wednesday, but also continue to have other news. First, there is the continuing story of Ginni Thomas' efforts to overturn the 2020 elections, now with more John Eastman. As usual, this continuing onslaught has a general feeling of "this is bad" without fully being clear how much is there, including how much Clarence Thomas (Eastman was his clerk) is involved. For instance:

The emails show that Thomas’s efforts to overturn the election were more extensive than previously known, two of the people said. The three declined to provide details and spoke on the condition of anonymity to discuss sensitive matters.

The talk has been that there was some pushback on the 1/6 Select Committee to do much about Ginni Thomas, seen as something of a sideshow and perhaps not supported by the two Republicans. The article notes that the committee is deciding what to do though such leaks very well might be a sign of some sort.  What exactly (pressure? dissenting voices? a means to send info without doing formally?) it means is unclear. 

The person who went to Kavanaugh's house apparently well prepared to do mischief (apparently seeing the house defended, he said "nah" ... if it was "suicide by cop," he changed his mind, surrendering peacefully) was indicted for attempted murder.  As the article noted:

Montgomery County police found a black tactical chest rig, a Glock 17 pistol with two magazines, ammunition, a knife, pepper spray, zip ties and duct tape inside his backpack when they arrested him. 

Basically, he planned and otherwise did too much to get off the hook at the last minute.  Meanwhile, the House passed the Senate bill to expand security coverage to the family members of justices.  After a quick passage in the Senate (without dissent), it was held up in the House because Democrats wanted coverage for clerks and such as well.  

After all, as Rep. Lieu noted, one was targeted by name as the assumed leaker of the Dobbs opinion.  A few Democrats (including AOC) did not vote for the Senate bill, but most did.  As a summary notes:

This bill grants the Marshal of the Supreme Court and the Supreme Court Police the authority to protect any member of the immediate family of the Chief Justice, any Associate Justice, or any officer of the Supreme Court if the Marshal determines that such protection is necessary.

There has been complaints that the Senate did this so quickly while gun legislation or something was not passed.  Sure.  Okay.  Fine.  But, once your rightful indignation passes, this sort of legislation, of top members of the third branch of government, after people (including Sotomayor) were threatened or there was a serious threat there, is sound legislation. 

A few did add that the legislation does not address the necessary coverage needed to lower federal courts, including after a family member of one was murdered.  Again, that is valid, and if that is why people from her state specifically didn't vote for it, kudos.  It simply is easier to pass a more restricted bill, especially given current events.  

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Opinions: There was also a second opinion day with a slew (six) cases disposed of on Wednesday.  We are down to 18 opinions left, including probably around six really notable ones (abortion, two religion cases, Remain in Mexico, an EPA case, and let's say at least one more).   Meanwhile, jumping ahead, we already have the first arguments of the October 2022 term.  Fun times.  

One law professor on Twitter basically listed the cases as "not ones you care about" and they aren't the hot button issues. Now, those following a law professor on Twitter are more likely to care about some less exciting Supreme Court opinions.  Also, some of the opinions at least were notable in various ways, particularly doctrinal. 

Stolen Seat Guy (Gorsuch) played a notable role in many of these, including separating himself from other conservatives repeatedly.  The first case, for instance, was Barrett v. Gorsuch (Breyer and Sotomayor joining him up to a point) involving a VA regulation.  One might be sympathetic with the petitioner, but the case turned on clear error.  If you do not give discretion to the agency here, you might not like the result in other cases.

[This SCOTUSBlog summary is interesting in discussing the interpretative approach taken determined the results here, including "canons" involved, and so on.  And, such application does not seem consistent.] 

This is one of those cases where it's best for me to simply understand what happened as compared to assuming I can figure who is correct. As to agency discretion, another notable if less flashy case involved a complicated health care matter.  The recap suggests the unanimous Kavanaugh opinion might be a sign "Chevron deference" is being buried by just ignoring it.

Gorsuch's clear sympathy for Native Americans (though on Twitter, a law professor that specialized in Native American law suggested he was wrong in the double jeopardy case, showing perhaps his competing views clashed there) also showed up in a 5-4 opinion involving the discretion given to Indian gaming.  Roberts dissented along with the older conservatives and Kavanaugh, leaving Breyer one of the few chances to assign.  

As noted by the linked commentary, also flagged on legal Twitter, the voting array reflects another big 5-4 Native American dispute, which has a pending follow-up in the post-RBG era.  Barrett joined this opinion and inside baseball suggests it sends a message she will vote with Gorsuch in the upcoming case.  We shall see there, predictions somewhat iffy.

A general theme in this collection of cases was "we are just doing our job, statutory interpretation," though the end result was disputed.  This as Prof. Victoria Nourse noted on Twitter included when the same interpretation methods were used.  She also flagged Gorsuch's usage of purpose.  Text alone will not get you where you want to go, at the very least, if there is any major dispute on the meanings. 

Sotomayor wrote an unanimous opinion clarifying the rules regarding an important international agreement involving at risk children.   

Alito, not writing one of the religion in school opinions quite yet (I thought the prayer case might drop), wrote an opinion "preempting" to some degree (if not as badly as some feared) a California law involving arbitration.  The result was 8-1 (Thomas didn't like the rule applied and doesn't care much about precedent) though Barrett, Kavanaugh, and (if not as much) Roberts would have decided the result on more limited grounds.  

[SCOTUSBlog's summary notes the section all three don't join is basically gratuitous, but it seems like it was added to make the liberals happy.  The interesting vote there is Gorsuch, who concurred without comment.  The first part cites some "limits" to the California law, but Roberts did not find this problematic, unlike the other two who concurred.]

One theme in this set of cases is that Roberts in various ways did not go along.  He wrote a dissent, only concurred in part, and for the conservatives (if not the two latest) wrote a rare concurrence to a DIG. The Court as a whole did not explain why the case was "improvidentially granted," a "because we say so" result that is normal, if wrong, in such cases.

During oral argument, it did seem the justices (etc.) was not really gung ho about supporting the route taken to challenge the "public charge" rule now that the Administration no longer enforced it.  But, some didn't like the way the Biden Administration went about it, feeling the right procedure was not followed.  Roberts sent a message with his concurrence, but again, not for the Court. 

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Conference: Thursday a day for conference.  Monday is a federal holiday, Juneteenth, so orders will drop on Tuesday.  There are 18 opinions, including some big ones, so I think there will be four more opinion days.  Two are scheduled for Tuesday and Thursday.  I don't think we will have six a day since we had basically five a day (with one non-opinion) with a bunch of B sides.

One thing noted on Twitter was some opposition to the policy of dropping opinions in ten minute increments, which makes more sense when they read the opinions from the bench.  I am okay with sticking with the old way, even though it's just automatic release, in part since it gives me a chance to quickly look at the opinion before the next is dropped.  

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Sotomayor At ACS: Liz Cheney during one of the public sessions of the 1/6 Select Committee labeled the Federalist Society a conservative lawyer organization, which probably would annoy them -- we are libertarian too! we are a non-ideological debating society!  We just happen to be appointed by Republican presidents as judges and stuff. 

The American Constitution Society does a lot of generalizing, but on their "About Us" page eventually notes it "nurtures the next generation of progressive lawyers, judges, policy experts, legislators, and academics."  Like the Federalist Society, they have invited ideologically dissenting guests to various panels though recent videos I have seen are basically one-sided.  Eric Segall seems to be a favorite friendly debating partner for FS, which at some point to me normalizes them.  To the degree they did not do enough to push against Trump, that to me is wrong. 

Fix the Court wants liberal and conservative justices to go to their opposite numbers (said so on Twitter).  I think that's a great idea though would not put (like the tweet) the responsibility fully on their side. It is up to the groups to invite them.  I do think the justices can somehow send a message they would be open.  

Still, it is not apparent they actually refused to do so.  I suppose Breyer or Kagan would be open at least.  And, yes, it does look dubious since these are not just debating societies. They are ideological groups, and federal judges should try to remain somewhat neutral appearance-wise. 

Anyway, it is not surprising that Justice Sotomayor was a special guest at their annual convention.  Federal judges have served such a role in the past.  Sotomayor was in part chosen since she is a good public advocate and she strongly believes it is important for her to do so to inform the public.  She has signed on, especially now that Sandra Day O'Connor is no longer able, to the civics campaign too. 

She also generally, though you might not know it from some of her dissents (her majority opinions, like Thomas, can be dry),* puts a positive face.  She seems from my vantage point a general positive person. She loves, for instance, to go into the audience like she's some talk show host. And, she repeatedly hugs people.  

The report of her remarks  (interviewed by a former law clerk) contains various comments where she puts a positive spin on things, including praising Justice Thomas (this is not surprising with his clear rapport with Breyer and reports court personnel love his personal touch).  We already had that mask controversy where a statement was released and she was shocked there was any suggestion Gorsuch (the one person on the bench not wearing a mask, even though he sits next to her, a diabetic) was somehow at fault.  It was just over the top in my view. He was an asshole.

Anyway, she references the "institutional structure" and notes:

“We have to have continuing faith in the court system and our system of government,” she said, adding that she hoped “to regain the public’s confidence that we — as a court, as an institution — have not lost our way.”

Sotomayor isn't going to discuss ongoing disputes, but like I said when talking about the latest Breyer book, there is a problem there.  It is appropriate that a sitting federal judge does not opine completely on ongoing political matters.  So, these avenues require them to balance on a tightrope of sorts, honing to a fine line at times.  Including somewhat vague and general bromides.  Some, like Alito et. al., do bitch some.

[I know "bitch" is a dubious gender laden word here. A word like "whine" probably works just as well.]

I appreciate that Sotomayor by her remarks does not just handwave the current reduction of respect of the courts.  I also realize she is limited in what she can and will say.  (Ginsburg annoyed some by laying it on thick about Kavanaugh being a fine person. Again, it's a fine line.)   

But, the lack of faith is a result of various deep problems with the current Supreme Court.  And, the public voices and actions she vaguely remarks upon should and in my view must put forth serious changes for the confidence to be regained and/or properly held.  Finally, no matter how nice Thomas is (and on some level seems true), he is part of the problem here, including blatantly crossing ethical lines that warrant him resigning.  

I think Sotomayor is a great asset, but at some point, once you are a member of the Supreme Court, you are institutionally self-interested.  Some this is her overall sense of the world, some of it is that she is a justice of the Supreme Court.  I understand but still it's a bit hard to take sometimes.  The happy face (with enough honesty mixed in to get my respect too) these days is not really the vibe I have. 

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*  She is open about it in public remarks, including here:

“There are days I get discouraged,” she said. “There are moments where I am deeply, deeply disappointed. And yes, there have been moments when I’ve stopped and said, ‘Is this worth it anymore?’ And every time when I do that, I lick my wounds for a while, sometimes I cry, and then I say, ‘OK, let’s fight.’”

And, though I'm wary about the personal nature of judicial opinions sometimes, I am glad she is doing it.  I do think -- and there was signs of this way back when too -- opinions in our country are too personal.  But, there is a place for certain strong arguments.  For instance, she is the last strong supporter of separation of church and state left on the Court.  

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Addendum:  A lot of stuff, and not just opinions.  After a bit of time, we have a few edits of opinions.  One was a single typo; the other also mild edits (e.g., basically "it appears" to "in the view of the parties, it appears.").  Also, we have more urls on page where permanent copies of the pages cited are kept.  

And, an interesting old critique of Marbury v. Madison.

Happy the Elephant Decision

 

The attempt to obtain state habeas coverage for "Happy" the Elephant (a dissent flagged familiar Pelham Parkway landmarks, she now residing at the Bronx Zoo) failed in the New York Court of Appeals 5-2. The opinion was under twenty pages. The dissents were over eighty pages together.

It was always a longshot and I'm inclined to agree with the result. I think it sensible to have some separate legal protection for at least some animals. The issue here is the current law and even a dissenter noted Happy is not a "person" as a human is.  The idea was that the law still allows habeas relief to protect her liberty and well being.  It's tricky to split it like that.

I do think the rules probably should come legislatively or perhaps as part of the state constitution. One problem there is if that will happen, but this legislature seems like it might be able to do it.  There are laws in place to protect the well being of animals and third parties in place to protect them. 

[This issue is covered here, to add something, and reasonably pushed back some as limited in practice. Surely.  A key issue here is going to be the strength of the enforcement of limitations, which very well might apply even if you have habeas.  After all, I bet a case can be made that even citing current regulations in place, Happy's confinement might not meet them.  Clearly, that is true in various other cases. It is not enforced properly.]

Years back, I wrote a book about my views of the U.S. Constitution and argues that non-human animals should be treated as "persons" in some sense.  I also suggested maybe a fetus can be treated as some sort of person though it still would not deny the rights of pregnant persons. There is a reference to "persons" being counted in 14A, sec. 2, but corporations are treated as "persons" in some sense. So, that all by itself does not mean some sort of "personhood" can be expanded here. 

And, one major thing there are lines. Why should "domesticated" animals be special?  How special?  Note this from a dissent:

Although not true for all nonhuman animals, there are some with advanced cognitive skills, who display self-determinative behavior, with an awareness of death and a capacity to grieve. These animals are autonomous beings.

It is obvious that Happy is unlike the domesticated animals that now live, at times comfortably, among humans, such as dogs, cats, horses, chickens, and hamsters. 

So, you have some attempt to separate a "wild" animal like Happy (what if they are in a preserve? how regulated is enough before they are not truly "wild"?), but only so far.  And, being honest, you have that qualifier about some domesticated animals ("at times").  What about others?  And, elephants in some fashion lived among humans since ancient times.  Is the judge aware, e.g., of Hannibal and his elephants?  

The authors of a book on animal rights and abortion joined a brief in support of the habeas effort.  I asked, and the person behind Dorf on Law said there will be a response to the opinion.  So, I will check that out and perhaps add an update.  But, I think it would be a stretch to apply the rule to Happy.  A move to have a primate get habeas protection probably would be different for me.  The line between an ape and human is close enough.

I appreciate the effort and again think it makes sense to have some independent legal protection for animals. Years back, Justice Douglas infamously wanted to give "trees standing," but he really was interested in those who benefited from nature.  I did not read his famous dissent as suggesting nature inherently has interests of their own.  

Finally, let's say Happy got his habeas rights.  The opinion had a lesser component attacking the right to liberty covering moving him to a better location.  I think that sounds wrong -- if it was a human, a better location in confinement would matter.  But, Happy is not being held by a circus.  She is held by a zoological park.  It is an uphill battle to have a court override such informed judgment.  I say this agnostic about it here.  

ETA: Here is the Michael Dorf response that I referenced.  

Reference is made that "rights were denied to children, women, and enslaved persons," but where were they completely so barred?  Was there a time in New York where women had no habeas rights at all?  Even slaves are called "persons" in the Constitution and in various antebellum laws, at least technically, you could be arrested for certain harms to a slave.

The development of common law is a matter of reference and he's right that the difference between non-humans and humans only goes so far. But, there are differences, especially regarding precedent.  Also, to me there is a difference between exceptions (developmentally impaired) and the general.  The law recognizes the general in various respects. In GENERAL, an elephant is different in our current legal traditional than humans.  

The essay references the remedy issue and basically agree.  The slippery slope issue is not really addressed, except to note that sort of thing always happens.  But, especially Michael Dorf surely does not think an elephant specifically is different enough from a range of other animals.  The "domestic" v. "wild" split to me is artificial.  I am left nodding here:

Ultimately, the answer to the slippery slope is to persuade enough people—including ordinary citizens, legislators, and judges—that they should not fear sliding down the slope, that at the bottom of the hill they will find justice.

And, parrots?!

NhRP lawyers provided the court the opportunity to draw a line between “genius” animal species like elephants, great apes, dolphins, whales, and parrots, on one hand, and other animals on the other

I did read a book on a study of parrots, and they apparently do have high intelligence, including the ability to learn a lot of words. But, surely, dogs do as well.  The move there was again to note that they have been domesticated.  Dorf suggests this line somewhat here:

My brief with Professors Colb and Tribe emphasized that Happy’s confinement denies her the ability to exercise her capacities as an elephant. 

I think there is some merit to that approach and think they should have had a hearing at least to get a full understanding of the strength of the case.  I question the limits of that idea if a dog is not give habeas rights in various contexts.  If a dog is abused, their abilities to be a dog are limited too.  It is not like Happy can't be an elephant at all in captivity.  

There is always line drawing and slippery slope arguments at some point tend to be more academic wordplay exercises than honest.  Basically, some lines are drawn, based on judgment calls.  On that front, again, I can see a court drawing the line to primates.  Elephants?  Seems a bit arbitrary to me and even if some of the details are bad, I still am wary about a different bottom line.  

I probably would at least concur in part.  

SCOTUS Watch: Day 1 (of 2?)

There were basically six cases decided today, which is around the rate necessary to dispose 29 cases in three weeks.

Death Penalty: The first was a death penalty/competent counsel case that returned after being sent back in 2020 (per curiam, High Federalists dissenting, pre-Barrett). Sotomayor for the liberals had a long dissent from cert. denial.  The case turned on the effort put on for mitigation, a major part of capital cases often being the penalty phase.  In effect, yes, there are lots of homicide convictions, but only a very few so bad to warrant capital punishment.  The arbitrariness here is to me one of the biggest problems with capital punishment as a whole. 

The Court, per curiam, sent the case back in 2020, clearly sending a message it was troublesome, but not firmly concluding the state court was simply wrong.  Coming back, there was again an uphill battle to meet the rules for summary reversal, though why the dissent did not meet it is uncleart.  A case where the state court already was red flagged and a strong dissent is present is a lousy case for a summary denial. 

[Here's a discussion.  As of now, it wrongly flag's "Kennedy" being replaced.  No.  He wasn't around any more in 2020.]

The rest of the order list was no drama. 

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As we waited for the start of the 1/6 Committee hearing, five opinions in "not the top ones" cases dropped in ten minute intervals.  This interval made more sense when they showed up and read summaries from the bench and the press was there.  The committee was due to start at 10 A.M., but was delayed about 45 min., probably because a key witness' wife went into labor, so they had to rejigger some. 

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Native Americans And Double Jeopardy: First, a somewhat quirky double jeopardy case (the Washington Post summary calls the background "pretty bizarre") was handed down by Barrett upholding the prosecution and Gorsuch with a strong dissent, which only partially (in particular, some institutional complaints by an often critic -- at least when certain things are involved -- of the federal administrative state were his alone) joined by Sotomayor and Kagan.

Gorsuch if you remember dissented in the dual sovereigns case, upholding the rule that you can prosecute the same defendant for the same acts if different sovereigns were involved.  (The other dissenter was Ginsburg.)  The rule applies to Native American tribes too though the "sovereignty" there is much more limited than in the case for states.  This was something he raised during oral argument.  

[I was sympathetic to the idea that the dual sovereignty rule was artificial. If you did one act and were prosecuted twice, it seemed like double jeopardy.  But, that was never the rule.  Two "offenses," which is the text, are understood to be involved.  You are acting against two different governments.  And, there are federalism concerns. Maybe so. Anyway, the precedent is granted here though Gorsuch clearly still doesn't like it.]

When this case was argued, I got a sense it was an uphill battle for the defendant, even if it might have raised tricky issues that might be harder  for the government later on.  I saw this from the argument, SCOTUSBlog coverage, and maybe the Strict Scrutiny Podcast coverage.  For instance, it is not like the person was first found not guilt and a second bite of the apple was involved. 

Co-host Leah Litman, usually a strong defendants rights person, leaned toward the majority opinion today on Twitter at first blush.  But, there were some defendant rights voices who thought Gorsuch was correct.  The WP article flags that Gorsuch is the Native American rights guy, but in this case (as Leah Litman flagged) the tribe supported the result.  

The court tries crimes established by the department through regulation — not crimes enacted by Congress. Its members are appointed and can be fired by the secretary of the interior. It’s referred to as a “CFR court” because it is a creature of the Code of Federal Regulations, where all federal regulations are recorded. CFR courts have jurisdiction in places where tribal sovereigns haven’t established their own courts.

(WP summary.)  The court here prosecuted a sex crime and a 140 day sentence was handed down (tribes have limited power to hand down sentences).  Then, the same act was tried in federal court, and a 30 year (!) sentence was handed down.  The length of the sentence is not the issue here though even Roberts during the oral argument wondered what the point of the first trial was.  The government noted for one thing it was quicker as well as given the tribe a chance to make its statement. 

The opinion summarized it the crime this way:

A violation of the tribal code lies at the heart of this case.  Merle Denezpi and V. Y., both members of the Navajo Nation, traveled to Towaoc, Colorado, a town within the Ute Mountain Ute Reservation. While the two were alone at a house belonging to Denezpi’s friend, Denezpi barricaded the door, threatened V. Y., and forced her to have sex with him. After Denezpi fell asleep, V. Y. escaped from the house and reported Denezpi to tribal authorities.

Not trivial, but 30 years?  You often would not get that for murder.  Anyway, the special court (logical for smaller tribes especially) here made the case tricky, looking different than a regular Native American dual sovereignty case (granted as allowed by long precedent).  The court seems basically too much like another form of the federal government.

The majority -- in part arguing that Gorsuch was making argument not made by the defendant -- argued the point here is that the "offense" here was not the same.  The tribe (no matter the nature of the prosecution) code was violated AND federal law was violated.  And, again, it is unclear where you should go if you support Native American sovereignty rights here.  

Gorsuch's vote is not surprising given his past votes, Sotomayor and to a degree Kagan lean liberal, so what about Breyer?  Breyer is more willing to support the prosecution side, especially when -- like here -- there are logical reasons supporting various interests (including precedent apparently) do so.  Me?  I understand the concern of the dissent, but on these facts, well, I admit I am not sure.  The sentence does seem too long.

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Also Rans: Barrett then dealt with a unanimous technical issue and we ended with Thomas doing so (minus Gorsuch who would have held it was improvidentially granted; Sotomayor added a few words) regarding a civil procedure rule case.  The biggest red flag there apparently is that Gorsuch split "anyway" as "an-yway" in his opinion.  The last case also ruined a line of cases with "z" in their names. 

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Non-Citizen Hearings: Sotomayor took a case involving a claim for bond hearings of noncitizens detained and rejected it in a limited opinion.  Breyer (who has long been concerned about this general issue) dissented in part (not really wanting to go as far as she went) and Thomas concurred alone to say he rather they restrict the very right to bring such cases. I figure this was a sort of "reduce the harm" sort of opinion on her part while this is one of the "can't helps" Breyer talks about where he can't go along given his personal position.

The bigger case was handed down by Alito for the conservatives, which blocked a certain class of "aliens" (as he framed it) from bring a claim in federal court.  Sotomayor for the liberals dissented on the ground. Breyer joined only part of her dissent.  Sotomayor/Kagan (but not Breyer perhaps) accepted the government was right on the merits but would have at least let the claim be brought in the first place.  

(Leah Litman, of Strict Scrutiny Podcast who regularly live tweets opinion announcements and the like, summarizes that the opinion holds that  "federal statutes don't allow courts to enter class-wide injunctions against the enforcement of certain immigration law provisions.")  

There was a suggestion the Alito opinion might foreshadow a major limit on jurisdiction involving immigration claims as a whole.  This might benefit President Biden in the "Remain In Mexico" case.  Oh, note that Gorsuch was okay with federal power here. 

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24 opinions left and another opinion day on Wednesday.  At this rate, you can imagine five more opinion days with two days each (with a final clean-up order day) to finish up before the 4th of July.  The issue is that you have some major cases left and it will be a bit different with one of the biggies.

It’s Been 50 Years. I Am Not ‘Napalm Girl’ Anymore

And Also:  I noted in a past entry that I lost AOC; it looks like I'm but one of many though again for me it is oh so close district line wise.  And, now the New York Assembly map was struck down, but the court said it is too late to draw a new one.  The new map will be for the next cycle.  It would have been better to do that for the U.S. House (if possible) and state Senate maps too.  The accelerated process was something of a mess. 

A few years ago, I read The Good Fight by Danielle Steel, attracted to its historical based story of woman living basically through American history's prime events from the 1940s to the 1960s.  It was light reading, her style from what I can tell to use serious topics, but to write in a non-complex fashion that would be approachable to someone with a eighth grade education (minus maybe some references). 

I thought it would be a good way to briefly talk about the events and point to various discussions and books suitable for further reading. I don't think (unfortunately for the person who runs it) that website gets much more hits than here, but you can check it out.  I read Finding Ashley, which was okay (finding a long lost child wasn't enough; there was a #MeToo subplot).  

I also am reading Beautiful, about a fashion model who was the victim of a terrorist bombing. Her mother and boyfriend of the moment (she was much more close to her mom) killed and she was severely injured.  But, unlike other less pretty sorts (I am a tad mean but yeah), it was not like she was maimed (loss of limbs or such).  I'm about 2/3 done and it is easy to read, but so far, it is somewhat thin.  And, it is only about 230 pages.  

Well, maybe there is a reason she has so many books. Quick to write this sort of thing.  One thing covered in The Good Fight (other than her father at the Nuremberg Trials and her grandfather being on the Supreme Court!) was the main character taking care of a young victim of the Vietnam War.  

"Napalm Girl" is perhaps the most famous one and she wrote an eloquent op-ed suitably dated June 6th.  It was nice to hear that the same person who took the famous picture of a nude little girl running after her village was attacked with napalm also helping her get to safety.  

Nick changed my life forever with that remarkable photograph. But he also saved my life. After he took the photo, he put his camera down, wrapped me in a blanket and whisked me off to get medical attention. I am forever thankful.

She also referenced the shootings in Uvalde and notes the importance of looking at, including those who were killed and are suffering now. ("We must face this violence head-on, and the first step is to look at it.")  The green sneakers of one dead girl (basically the only way to identify her, after she was shot with a weapon of war) and little superhero/animated creature coffins come to mind here.  

Some also want us to see the blood on the walls and things like that.  I don't know.  But, pictures do humanize.  And, merely seeing school pictures or the like doesn't do it.  The "napalm girl" was photographed nude, running, and screaming.  That is the hell of war, not just a photo on an obituary.

Photographs, by definition, capture a moment in time. But the surviving people in these photographs, especially the children, must somehow go on. We are not symbols. We are human. We must find work, people to love, communities to embrace, places to learn and to be nurtured.

The op-ed ends on an optimistic, humane note:

That picture will always serve as a reminder of the unspeakable evil of which humanity is capable. Still, I believe that peace, love, hope and forgiveness will always be more powerful than any kind of weapon.

I am somewhat distraught about the ugliness of some of the replies to current evens.  It is not like I soft soap things -- I at this point simply think the Republicans are unfit to rule (nationally and in various states, including Florida and Texas) and the Supreme Court is not to me a legitimately put together institution.  I belabor this some.  I'm sure some on Twitter etc. are tired of it.

But, I don't speak of "SCROTUS" or just speak with visceral disgust and hatred each time some topic arises involving such people.  I also don't assume we are a lost cause as a nation.  I realize that on some level it is a difference in degree many times.  Still, it is just depressing to view things that way.  We are still humans.  

It is so hard sometimes, especially since online people are venting and so on in ways they might not in person.  It still is bad.  We have to retain some humanity and hope, even while be realistic. 

Supreme Court Watch

After the last decision day (with addenda), a minor shadow docket matter with possibly wider implications was addressed.  I could add this to next week's entry, but who knows how big Monday will be.  So, let's just get the odds and ends out of the way. 

The High Federalist trio would have taken it (a selective application of a perhaps sensible sentiment to deal with the matter before the election) and flagged alleged issues with the lower court decisions.  That part is much less defensible.  As a preview noted:

It involves a fight over whether 257 ballots cast in a low-level state judicial race should be tossed out because of a very minor paperwork error. It also involves a fairly obvious violation of a federal law providing that voters should not be disenfranchised due to such errors.

Alito (CYA-ing saying that with full briefing, he might change his mind) in effect said in part that since an "error" was involved, it was not really disenfranchisement.  Anyway, looks to be a sensible move by the rest to avoid deciding a minor ruling that should be left to the lower courts.

===

There was also a conference and afterwards the website told us that Monday and Wednesday would be decision days.  With 29 cases and three weeks left in June (the usual end of the active term until September; they in recent years also have three scheduled order days during the summer that basically dispose of run of the mill stuff and are yawners), that is far from surprising.  

We had four cases (only one sorta important) disposed of in two order days last week.  There probably will at least be one THREE day decision day.  

==

And, to toss it in, though it's separate, we got some financial disclosures.  One lawyer said he would increase the pay of the justices and block outside income.  But, these people are not writing books, guest lecturing, and the like because of money.  They like doing such things.  

And, I don't really begrudge them (if done openly, which in various cases involving speeches, it is not) on principle.  Justices lectured in the 19th Century.  Maybe, large book contracts are somewhat distasteful or if you were a lecturer at some strongly ideological university or something. 

But, I'm not really concerned in general though again Fix the Court or something can show how it should be more aboveboard in various cases. 

===

NPR adds to current articles furthering the "Supreme Court in crisis" theme.   It is written by Nina Totenburg, who is usually worthwhile, but I am somewhat on the same page as this account that is not impressed by the article.  There is a vague character to the whole thing, including suggesting the possibility of a justice (who? a conservative like Thomas or a liberal like Sotomayor?) not taking part in some witch hunt type investigation.  

I guess there is some general flavor to the article that is helpful. Nonetheless, again, it seems so vague and doesn't really add much.  It again is striking to me that we have heard a lot from leaks and some comments basically all from the conservative side.  This article adds to the general silence (except again in some vague and very general way) from the liberal camp.  I wonder if we will learn much more in future accounts. 

First Open Testimony Before January 6 Committee

On Thursday (6/9), the 1/6 Committee did something special. They had an evening (8-10 PM) open hearing (the title comes from CSPAN). It was carefully crafted with video and help from a media expert with experience in television. Or, as a NPR article leads: "A former TV news executive is producing the Jan. 6 hearings." For those who need it, Just Security has crafted a "scorecard" of a few pages to summarize the different aspects to come. 

I surely would find such a scorecard helpful since there are so many details.  Links on this website help to some sense to keep track of things in various cases.  I find this a standard thing.  Something comes up (such as the threat to Kavanaugh's home, which soon led to an indictment spelling out details) and people make general comments. But, specific details are important, and to truly understand them, you often need to research the question.  Few do.  It can be overwhelming.

Testimony from Capitol Police Officer Caroline Edwards, who was abused and injured on that day, made clear that no reasonable person could doubt the crowd’s viciousness and anger. Filmmaker Nick Quested testified that the mob appeared well organized. This was no spontaneous uprising.

I watched the two hours (which had at least one break) and it went by rather fast.  [ETA: That media expert might have helped here, including suggesting the value of a crisp session.  There will be multiple sessions and I assume each will have a theme of some sort. A useful "episode" approach. I am not a usual watcher of committee hearings -- there was a recent one in the House with some good abortion related content -- but a basic part of these things is "the show."  Remember too an important thing: this is a united effort, the two Republican members being on board.]  

Washington Post had various commentaries, including a general summary.  I will quote from more than one article here.  As often is the case, my focus was not completely on the video. For instance, I was making and eating dinner.  I actually missed a couple key moments, including a basic point.  

So, it was good that the chair, Bennie Thompson, in a brief press briefing afterwards underlined the idea the invasion of the Capitol was carefully planned. One of the two witnesses was a documentarian and he noted how Proud Boys was there early, before the attack.  They provided a front guard of sorts, leading the way when the mass of the protests came.   

As noted on Twitter, a core purpose of the filmmaker was to show how the people there themselves admitted a conspiracy.  The other witness both had emotional power and underlined this was not just a trivial matter. 140 police members were hurt.  Talk about slipping on blood hits home this is not just a bunch of protesters, maybe just misguided.

“In actuality, I was none of those things,” she said. “I was an American standing face to face with other Americans asking myself many times, many, many times how we had gotten here.”

One approach was to use Republicans in the video clips, leading with Bill Barr (who screwed over the Mueller Investigation and was the official fix back to the Iran Contra Days) calling the whole "election was stolen" thing "bullshit."  (Office Edwards continued the expletives in a fashion by quoting some chants though spelling things -- "F-U-C-K")  Ivanka Trump, looking uncomfortable, noted she was aware and accepted what he had to stay.  Her hubbie however thought White House Counsel threatening to quit was basically "whining."  

We also had video of the violence of the day (which we also saw during the impeachment trial), which is important for people to remember.  This is not "legitimate political discourse," as Republicans framed the protests in general when they read co-chair of the committee (Liz Cheney, who shined -- we need to respect and honor such moments of principle) out of the party.  As the WP noted:

Republicans sought this week to cast the committee as partisan and illegitimate. Rep. Elise Stefanik (N.Y.), the Republican conference chair, argued on Wednesday that the hearings are designed to distract voters from other issues such as inflation and crime, and called them “a smear campaign” against Trump. As the hearing unfolded, the Twitter account for Republicans on the House Judiciary Committee tweeted images of violence during Black Lives Matters protests in 2020. “All. Old. News,” the Republicans tweeted.

(Fox News was airing Tucker Carlson, without commercials, but Fox Business did air the opening.  I am not sure if they aired the whole opening, but Newsmax did air at least some of the video of the invasion of the Capitol.  The major networks otherwise did air them, which makes sense since it is not only Friday night, but it's the summer recess.)

They could have stepped up. Ten more Republican senators could have convicted Trump in the impeachment trial, removing any chance of him running again.  After all, less than ten voted to challenge the electors on 1/6, as compared to about 2/3 of the House Republicans.  This is not some horse race. You want THESE guys to run the Congress and/or handwave the travesty of it happening?  FUCK YOU. 

In reference to the first witness, one blog that regularly has people wondering what Merrick Garland is doing, had a picture with a caption in part:

Proud Boys members Zachary Rehl, left, and Ethan Nordean, left, walk toward the U.S. Capitol in Washington, in support of President Donald Trump on Jan. 6, 2021. A federal judge on Tuesday, Dec. 28 refused to dismiss an indictment charging four alleged leaders of the far-right Proud Boys, Ethan Nordean, Joseph Biggs, Zachary Rehl and Charles Donohoe, with conspiring to attack the U.S. Capitol to stop Congress from certifying President Joe Biden’s electoral victory.

 I am concerned with the speed and scope of the process, including some of the sentences asked for low level types.  And, the calendar scares you to, since we are going to be in the presidential season before you know it.  But, it is not like they are doing nothing here.  I will believe prosecution of Trump or a few other top people when I see it.  BTW, FU to the Manhattan prosecutor for not bring an indictment against him even for fiscal crimes.  

(One thing that is real troubling to be is the ability of people to stonewall and there not being a practical means of contempt of Congress to address it.  People basically forget the second count in the first impeachment, Trump's broad stonewalling of Congress.  The Supreme Court, contra the tapes case, helped, by delay and giving him more means to delay.)  

I think the whole thing started on the right foot.  We had little bits that were basically news (apparently) such as certain House members (including one person cited by name) asking Trump for a pardon.  I don't know how much really new came out, but this is about bringing the information out to the public, including in a fuller way than we had time with for the impeachment.  Which after all had no witnesses.  

I don't know what this will wrought or how people not already inclined to be impressed (Chris Hayes impressed at the time? okay) took it.  But, I think it is an important thing to do and put out there. Some eat this stuff up, leading some to remind people of John Oliver's "we got him!" .gif about suggesting us to CALM DOWN. 

Some basically are resigned to nothing happening, all the bad guys getting away with it, and so on.  They can point to how people so far are though this Eeyore approach at some point is tiresome and overheated.  Not only do you have to fight and basically do best you can, life isn't all or nothing.  It's a messy process.  And, I think this all helps it all.  

A few online spoke about how watching the video of the attack of the Capitol was hard, including how it really pissed them off.  I appreciate that. It should be tough.  It also reminds, even reading some cynical, seen it all, etc. sorts, that deep down people respect our nation and our republican system of government.  That they are really upset at it being screwed over.  That it does matter.  That might be the core thing about this process.

ETA: Rick Hasen, who was impressed with the opening, has counseled the committee to make sure to address the future. I think they will, especially since that is often the concern of such after action committees.  Also, that was an ongoing theme at this point with both impeachments -- "he can do this again ... fool us once ... etc."   

Kate Shaw has a good piece on the Electoral College's role in all of this, including its openness to abuse.  Can we just get rid of it?

Supreme Court Watch

To put this more directly, for all of the outrage over *qualified* immunity, the demise of Bivens effectively leaves federal law enforcement officers with *absolute* immunity from civil liability for even the most *egregious* constitutional violations.

Why are we okay with that? https://t.co/rbF8fUKlzF

— Steve Vladeck (@steve_vladeck) June 8, 2022

Bivens was a 6-3 ruling, one that Justice Harlan (the conservative on the Warren Court that understood that was complicated) joined. But, soon enough, the Supreme Court started a path of basically limiting it to its facts. This is a problem since as noted back in Marbury v. Madison, rights needs remedies, and Congress is not really ready to apply better ones here.

As noted by Justice Sotomayor today, "a restless and newly constituted Court sees fit to refashion the standard anew to foreclose remedies in yet more cases." The Thomas led Court did not bury Bivens (Gorsuch wanted them to do so), but found yet another exception. Sotomayor for the liberals dissented though they found a reason to reject the First Amendment claim.

Congress can, of course, clarify these things. They can pass a new law changing the abusive use of qualified immunity, where even wrongs that should be damn obvious are deemed immune from liability. As Steve Vladeck noted separately, with the Supreme Court deciding less cases, what is "clearly established law" will continue to be hazy. Result? More qualified immunity results.

The result here -- from the tenor of recent years and the oral argument -- is far from surprising. It is less obvious that the Supreme Court -- with thirty cases left -- would have a separate opinion day to hand down a single one. The case is not trivial, as seen by the page length, but far from special. Oh well. 

===

An Arizona man convicted of murder in the 1984 killing of an 8-year-old girl was put to death Wednesday in the state’s second execution since officials resumed carrying out the death penalty in May following a nearly eight-year hiatus. 

A recent SCOTUS opinion which received some negative attention involving making it harder to defend the innocent came out of Arizona.  But, everyone up for execution is not innocent.  Few are really.  There still are a range of problems and that includes in the two executions out of Arizona.  

Frank Atwood is not a very sympathetic character.  Still, I reject the need of -- after over thirty five years -- execute this guy.  His final hail marys, rejected in three per curiams without comment or dissent, are likely not great arguments under current law.  I am open for some capital defense expert to tell me differently.  This includes the claim made in one recent appellate argument that his current medical condition makes lethal injection particularly painful.  Clearly, this Supreme Court doesn't care about that.  

[There are three orders.  One is a habeas petition challenging how procedure used to determine his crime was death eligible.  The other two are requests for cert. involving the use of lethal injection given his medical condition and a claim evidence of innocence was wrongly denied.  I do not get the sense from the coverage the innocence claim had much merit.]

But, my main complaint here is that no justice explained themselves here.  That is wrong.  A person's life is at stake.  He made multiple claims.  A brief explanation is what he and we deserve.  Anyway, he was executed. 

(So far, this would be the last execution Breyer will be involved with as a justice.  He plans to fill in ala Souter on the lower courts.  Kennedy does not seem to be doing that.  On that front, maybe Breyer should have provided one last statement.)

===

According to a criminal complaint charging Nicholas John Roske with attempted murder of a federal judge, two U.S. Deputy Marshals spotted Roske get out of a cab in front of Kavanaugh’s home at approximately 1:05 a.m. He looked at the marshals and then walked down the street. Not long after, Montgomery County got the call from Roske saying he was suicidal and came to kill Kavanaugh.

Montgomery County Police Department officers were dispatched and arrested Roske without incident while he was still on the phone with 911, according to the affidavit. In his suitcase and backpack were a Glock 17 with two magazines and ammunition, pepper spray, a tactical knife, a hammer, a screwdriver, a crow bar, zip ties and duct tape, along with other gear.

Federal judges and their family members have been threatened and in a few cases murdered. I cited this story on one liberal blog and got a few replies sneering at Kavanaugh or how the Senate will selectively care about the safety of justices and so on.  The increase uptick of domestic terrorist threats are not only going to threaten the Kavanaughs.  So, you know, maybe take this sort of threat to peaceful government seriously.  

Some are mad at the Senate quickly voting to expand protection of justices' families (the bill is held up in the House).  I understand the raw emotional reaction, but what is the idea here?  Should they block protection of the family members of justices until abortion rights pass?  Do we think the security of top officials will be on the same level as the average person? And, yes, it is easier to pass this limited thing than major gun policy! 

The anger is righteous and on some level it probably is not wrong.  We should demand change.  I have already said that.  But, in the process, let us not handwave real threats to the federal courts.  That's just foolish, especially since some MAGA type can go after a liberal justice too.  

The person here appears to have mental health issues as well.  He went to Kavanaugh's home with all that stuff, calls the authorities notifying them he was there (marshals protecting Kavanaugh's home already saw him), and eventually surrendered without incident.  Not exactly how some other case might go down.  But, someone so armed in some other case very well might be much more dangerous.  We should not handwave this.

(In one article I read after writing this, it was suggested that it looks like the person changed his mind when he saw marshals protecting the home.  He seemed to be quite prepared, down to his footwear.  All totaled, this just goes to show that cases in the middle of things have a "to be continued" quality.)

ETA:  I saw something that reminded me about the murderer of a son of a federal judge.  He had material regarding Sotomayor in his possession too, so might have been considering targeting her.  

SCOTUSBlog has some more about the person executed, including means to make the execution less painful for him.  There is a real problem with how lethal injections have gone down in recent years.  A basic problem is that conservatives (even when Kennedy was there) never really gave much concern about the issue. But, that does not erase that it is an issue and/or lower courts and governments can spend more time on it. 

I think his argument was weak, even in respect to the limited argument of some that they in particular have special circumstances that can make the execution a problem.  But, a serious statement on the rules of the game here would be appropriate, including why his case does not work. A single justice at the very least could flag such things.  

Also, there have been some people who emphasized how bad the damages case is.  I don't know, but will respect their judgment. 

Couple Things

Item: DeSantis spokeswoman belatedly registers as agent of foreign politician Christina Pushaw’s disclosure of work for Mikheil Saakashvili came after contact from the Justice Department, her attorney said.

This comes after the "the Justice Department sued Steve Wynn, a developer and Republican megadonor, seeking to compel him to register as an agent of China."  

I saw a few people handwaving the importance of the latter, especially since it was "only" a disclosure rule and no real penalty was at stake.  But, having people's foreign lobby work being on record in not trivial.  Ditto disclosure rules in general.  Any one instance is of limited importance.  The whole united system in place has an important role in keeping track of people, money, and institutions in general. 

#NEW: Last week, the NYS Senate and Assembly passed my bill with @SandyGalef to allow lay individuals to be designated as one-day marriage officiants.

Once signed into law, New York couples will have the opportunity to have a loved one officiate their marriage. pic.twitter.com/wqpJjQsJvD

— Alessandra Biaggi (@SenatorBiaggi) June 7, 2022

I have covered this issue over the years.  New York allows the clergy and ethical society officials to officiate marriages.  

But, the rules in place define the religious institutions that apply in a way that certain judges do not think apply to online minister types. The rules also single out certain ethical societies.  Most continue to use such online ministers, but over the years, that led to in a few cases lawsuits. And, in at least one New York case, the marriage wasn't upheld. 

I think the whole thing is constitutionally deficient on various grounds.  It is vague, breaches religious liberty (both favoring certain religions and burdening free exercise), and violates individual right to marry as they deem fit.  The best thing to do is clean up the whole law, including not favoring certain ethical societies (a problem I have seen no one address) and not trying to determine what religion counts enough. 

This bill -- which I doubt Gov. Hochul has any issue with -- makes a smaller tweak. Using a procedure in place elsewhere, it will allow (the details pending -- it will be administrative regulation thing) a person to be a secular officiant for one time.  I assume if they want to do so again, they can, but they will just have to go through the procedure again.  Not knowing exactly how it will be done makes me unsure exactly. 

Which is fine as far as it goes.  People surely want to preside over marriages and the "I'm a minister now" thing is really often just a practical thing.  That's how the rules in place require it.  This provides a clear way to do so that firmly is legal.  The thing is far from totally academic; there has been litigation over the issue in multiple states. 

I realize making big changes is complicated. Still.  It would have been best just to reform the law in general.  There are certain people who are let's say Universal Life Church ministers.  They do not only want to ordain online to preside over a single wedding.  It is not really reasonable to require them to act differently here.  

Still, as I have said in the past, I do think it appropriate (and this has constitutional connotations -- most probably state constitutional principles too) to allow a person to have a secular option here.  It is a helpful means to provide for the happiness of the public.  Again, the number of cases these ministers pop up in NYT wedding announcements shows they are popular. 

Some years back, I registered (for life apparently) as a marriage officiant in New York City as a Universal Life Minister.  So, I'm somewhat personally involved here.   I don't think this law suddenly makes it so that such ministers do not count.  Again, it's a limited bill, and you surely can imagine an argument a given minister is not secular. 

We Need to Do More Than "Something"

Matthew McConaughey, the actor is from Uvalde, Texas, the most recent mass shooting. As he said in remarks at the  White House press briefing:

And that is there that we met two of the grieving parents, Ryan and Jessica Ramirez. Their 10-year-old daughter, Alithia — she was one of the 19 children that were killed the day before.

He also talked about one of the teachers killed:

Because Irma was one of the teachers who was gunned down in the classroom, Joe, her husband, literally died of heartache the very next day when he had a heart attack. They never got to paint the back of the house, they never got to retire, and they never got to get that food truck together.

He is from the area and went with his wife to talk and do what he can for the families after the shooting.  He is not merely some Hollywood actor (the "grandstanding" question was from a Newsmax reporter, showing again it would be helpful to know who asks questions) though this isn't the first time Matthew has spoken out about things. 

There was some buzz about him running for office.  He also probably is hoped to come off as more relatable as a local and gun owner. I think he did a good job, in heartbreaking terms personalizing the people and asking for something to be done.  National movements include celebrity voices, especially when there is a firm connection to the issue at hand. Like here.

(His mom even taught children at a local school.) 

The usual "I'm not against the Second Amendment" stuff was cited. Yes Loads of gun owners do not oppose the sort of things he cited, which basically [even if some are turned off by a few "both sides" noises mixed in] overlap with what President Biden raised in his recent remarks.  

The House of Representatives has already passed key measures we need.  Expanding background checks to cover nearly all gun sales, including at gun shows and online sales.  Getting rid of the loophole that allows a gun sale to go through after three business days even if the background check has not been completed.

And the House is planning even more action next week.  Safe storage requirements.  The banning of high-cama- — -capacity magazines.  Raising the age to buy an assault weapon to 21.  Federal red-flag law.  Codifying my ban on ghost guns that don’t have serial numbers and can’t be traced.  And tougher laws to prevent gun trafficking and straw purchases.

This time, we have to take the time to do something.  And this time, it’s time for the Senate to do something.

But, as we know, in order to do any- — get anything done in the Senate, we need a minimum of 10 Republican senators.

The House of Representatives (Democrats) passed the stuff.  A majority in the Senate would pass most of that stuff.  Manchin supports background checks and the 21 age.  But, the talk is -- it's still open -- that much of this won't be passed.  The bottom line is that "something" needs to be done.  

A prime likely piece here is red flag laws, which is simply the sort of bare minimum thing that should be done.  The basic idea here is that a process is set up where guns can be temporarily seized if certain specific people have evidence the people involved are a special risk.  And, then they get a chance to challenge it.  It's fine to support that, but it is a limited thing.

A basic thing that is warranted here is to draw a line at 21.  There also should be some extended period before you can buy and obtain certain types of guns of mass destruction.  Such guns generally shouldn't be easily obtained at all.  It is dubious that the average person needs in their possession such weaponry.  

But, at the very least, it should be a long process.  The idea some 18 year old can quickly, on credit apparently, get such guns is ridiculous.  A true honoring of the Second Amendment's "well-regulated" militia warrants careful, trained people here.  Remember Rittenhouse, who is still out there trolling us on the usual suspect national media? 

Again, there is a too flippant view -- as seen in part in free use of them in campaign advertising -- about guns in this country.  The problem here is complex.  Another basic issue is the whole stand your ground sort of law.  Such laws open up a reckless view of gun use in public.  

[Item on Twitter from Wednesday: #SCOTUS spokeswoman confirms that at "approximately 1:50 a.m. today, a man was arrested near Justice Kavanaugh’s residence. The man was armed and made threats against Justice Kavanaugh. He was transported to Montgomery County Police 2nd District."]  

The ultimate problem is that we have too many guns in this country and are too free in their usage.  At some point, that was liable to cause problems, especially in a country with various social problems.  As people note, other countries have problems.  Europe has had a range of complicated social problems in recent decades.  We have a special problem with guns.  

It seems hopeless to address the problem to the breadth it deserves for a range of reasons.  This includes not "both sides do it," but so much of the blame on one side with that making it oh so hard on the other since it's hard for one side (which is not 100% united) to do anything by itself.  

But, that's an old story.  The government as a whole needs to act.  I do not want merely "something" to be done.  "Something" along the edges have been done.  A red flag sort of law is that sort of thing.  Some are like "it's something."  An aspirin might help a bit, but the pain still lingers.

I also fear "something" can be counterproductive.  Something is done and we move on.  Something is done and the problem continues, and the usual suspects say "well we tried something."  Something is done and it provides cover for the usual suspects, who are re-elected, even if they voted against even that little bit. We need to do something more.

Anyway, good job Matthew. 

SCOTUS Watch

Among the talk of leaks and other internal concerns, it has been noted that the Supreme Court has been lagging behind this term. This is not a Court that had to deal with the first year of COVID or has particularly broad docket as a historical matter. There were some notable shadow docket cases and some particularly notable cases (many not handed down).

Perhaps, that explains the lag time some. But, I have not seen any clear clarity on why before this week they have over half of their argued cases to hand down with less than a month left of the usual active term (that technically ends the day before the First Monday in October). Maybe, they need more justices.  Three or so, and you might have nine legitimate ones.

===

Anyway, before last week's Thursday Conference, an order was dropped agreeing with a Solicitor General's request to combine two cases. A briefing schedule was provided.  As a sort of prelude to another term chocked fill with important cases even at this early stage, the cases involve the constitutionality of activities of the Federal Trade Commission and the Security and Exchange Commission.  Such things continue split the justices ideologically.

===

Order List:  A grant involving the "Quiet Title Act" was symbolic of today's no drama Order List. 

===

Opinions:  We are getting less opinions, now at a slower rate, and Mr. Shadow Docket argues it isn't all good even with a bad Court.  At the start of the day, there was thirty-three opinions in argued cases left, which Amy "great SCOTUS resource" Howe helpfully breaks down.  

Three cases, nothing really notable, were handed down. A quirky case that dealt with constitutional rules regarding uniform bankruptcies was dealt with unanimously via Sotomayor.  Non-uniform rule blocked.  The opinion looks minimalist -- "uniform" not taken totally literally, but here it looks like the basic idea was that Congress itself created the problem it allegedly reasonably was addressing.   Brief opinion; some flexibility allowed. 

She dissented with Breyer in an Medicaid case (Gallardo), arguing the conservatives (and Kagan) were wrong to allow the state to go after some money.  This is one of those cases where I'm more concerned about the rule than the result since only experts really will be able to parse it.  Sotomayor might be right (the law tends to have enough flexibility so that you can pick your value choices), but Kagan joining suggests it is not too blatant.

Thomas writing the opinion meant the next opinion was Thomas, Roberts, or per curiam. Thomas for everyone (Barrett didn't take part) interpreted an arbitration case in a worker friendly way (Saxon).  One of various limited cases they are going to decide -- not everyone they hand down is crap.  

===

We will have one or more opinions Wednesday.  To remind, they don't show up, and this is wrong, especially since they can do so remotely (or provide audio/video) if desired.  Plus, past practice shows in person opinion announcements were seen as valuable.  Now, even in the heat of major cases, and when they had in person arguments, they don't show up.

Two Bits: Religious Liberty Law / Privacy & Press Book

Prior to specifying an alcohol or substance use program, the court shall inquire, on the record, whether the defendant has an objection to any religious element of that program. If the defendant objects to a religious element of the program, the court shall identify an alternative equivalent program to which the defendant has no religious objection, and the defendant shall confirm on the record.

As we prepare for primary elections, the New York state legislative term is winding down. I have not over the years kept up with local and state law, even though it affects me and people around me in various ways more than federal law that is more likely to be covered in the material I read regularly. 

So be it. I have already noted that there are concerns there. I work a bit more (including follows on Twitter) to keep abreast of local news.  The Freedom From Religion Foundation flagged the cited legislation.  Like a bill supported by my senator (until the end of the year; I see my current assembly rep is running for her seat ... a seat that no longer will represent me with the new redistricting lines)  involving girl sanitary products at certain schools, this is the sort of limited law that advances basic principles.  

True religious liberty is a valid concern.  And, that giving people of a diverse moral and religious viewpoint an evenhanded treatment.  Often, some religious viewpoints (or the lack thereof) are overlooked. For instance, Alcoholic Anonymous sort programs often are part of sentences involving drug crimes. AA has an appeal to a "higher power," which some people do not support.  It is important to respect this.  

‘Seek and Hide’ Grapples With the Complexity of the Right to Privacy

Amy Gajda, a former journalist and current law professor, would be a useful person to discuss the balance between privacy and some "right to know."  The title is a bit misleading because if focuses on the conflict between privacy and release of information, particularly by journalists.  

It is not a general examination of privacy law.  The book is often written in a somewhat wry way and seems a bit repetitive -- okay, I get it, for much of our history, the courts have broadly recognized some limits to the right to speak and the press in interest of privacy.  This was even done to limit what many now would deem public facts, such as if President Jefferson was involved in pressuring some printer to do something.  

Some speech absolutists selectively cite the evidence here.  A glaring case is Near v. Minnesota, an important Hughes Court (1930s) case involving the limits of prior restraint.  The usual citation of the limits to this basic principle of First Amendment law, the bare minimum of what is involved, is a reference to such things like leaking of troop movements during a war.  

But, the opinion provides more examples than that, including protection of private facts.  And, the sort of facts deemed "private" back then is not just something like a private person's medical condition.  Justice Brandeis, e.g., was upset about the leaks of President Wilson's medical condition after his stroke.  One black journalist was even convicted for libel in the days of President Cleveland for exposing public wrongdoing. 

These accounts should always be read by noting that it is hard to tell the full story in each case with so much covered in summary fashion. For instance, an older book by Rodney A. Smolla from 1992 discusses the issue of the outing of a person who stopped an attempted shooting of President Ford.  His additional information shows that we were not just dealing with some average person who happened to be gay.  He was something of a public figure, even if (not sure) he would not be treated legally as one.  In other words, him being gay was far from secret, if not as well known as before the accounts after the assassination attempt. 

I'm wary about restraint of truthful facts in general, recognizing that is not really the law.*  But, the sorts of things Brandeis co-written famous law review article on privacy was concerned with includes standard gossip and public information (photos included) regularly seen in celebrity coverage.  And, even stuff reported in the courts themselves once might be liable.  

The book notes that even latter day Supreme Court opinions have a lot of dicta about the limits of release of private information. Sometimes, the issue is a matter of where to draw the lines for FOIA requests.  Or, something like the limits of disclosures for campaign finance laws or something.  Lower courts continue to provide some limits, such as obtrusive use of media (a miked up nurse involving an accident victim) or the release of a sex tape.  

There are many lines to draw, especially voluntary guidelines for newspapers and broadcast media.  The Supreme Court not that long ago allowed a "God Hates Fags" protest at a military funeral while suggesting they were deciding matters somewhat narrowly.  Some sort of buffer zone around a public funeral would be allowable.  At some point, harassment can be targeted.  We also have buffer zones at hospitals.

As I get older, I am more sympathetic in certain cases about less than absolute lines.  They seem likely exaggerated.  This book shows that privacy was among the various things used to balance First Amendment interests (you can imagine each right somehow involved here though speech and the press are the main concerns) over our history.  Simplistic answers there are not based merely on text and history.

The book is a helpful examination, including to remind people that some accounts that promote absolutism tell only part of the story.  Brandeis and Holmes, regularly cited as free speech heroes (at least in the 1920s), surely were not absolutists.  A reaffirmation of "it's complicated" yet again, mixed with plenty of interesting story lines.   No pictures though.  Blah to that. 

==

* One later example is the sort of case that bothers me some.  A blogger talked about his sexual exploits with a Miss Vermont, in part to express his opinion her message of purity basically was phony.  He lost in trial court but she dropped the case later on.  

The author then provides various examples to suggest he would have lost on appeal too.  Eh to that on principle.  The examples included pictures, video, information like health records and driver's license information, and a "gotcha" show that worked with police to expose someone at his house who shot himself before they got their chance.  

Much of this to me is more "private" than merely talking about sexual relationships.  Also, Miss Vermont is not a merely private figure.  The sex details were not merely salacious.  It directly went to her "job" and position.  It is akin to outing a priest as gay.  

The blogger also talked about other sexual exploits that very well were more private. This? Again, eh. Maybe, too much detail? The bare bones of the sexual exploit, however, seems to me appropriate, if not deeply important stuff.  I don't know if the line is that fine tuned though.

I disagreed, however, with the firm assurance of Rodney Smolla (though this book notes things have changed in the last thirty years) that public figures have no right to privacy regarding private facts.  Some salacious facts (penis size or something) simply has no real "public interest" when judging a politician's public role, except in very limited cases (see Bill Clinton/1990s).  

But, various accounts will simply have quite personal details and it would be on principle in my view a valid public interest to so.  One tricky thing is use of booking photos, especially since the person is innocent until proven guilty.  I think it generally is wrong at least as an ethical principle for newspapers to print them.  

I would be wary about making that a legal principle.  One other thing cited is some "right to be forgotten," including getting rid of old facts.  This would include removal of old criminal material after a certain date.  Consider some of the things that come out now regarding wrongs from back in the day, including a recent governor's use of blackface in the early 1980s.  OTOH, this need not be totally removing the material as compared to making it harder to get in by normal search methods. 

Lincoln and "The Broken Constitution"

Did Lincoln break the Constitution (as Feldman argues) or vindicate it (as Oakes insists)? The debate will never end, because of course the answer is some of both. The answers historians and lawyers give to the question tell us as much about historians and lawyers as they do about the Civil War Constitution.

John Fabian Witt then calls out Oakes on limited grounds.  

I found Witt's Lincoln's Code very informative though his book American Contagions: Epidemics and the Law from Smallpox to COVID-19 more akin to an expanded lecture. That is, somewhat unsatisfying.  Anyway, I'll take Witt's criticism as basically fair though it doesn't really hurt Oakes' overall argument.  

And, reading both his original review (linked; you can read one article free there) and his reply, I think the argument is overall valid.  Ironically, even the exceptions cited are somewhat doubtful at least.  For instance, Oakes in his original review noted:

No chief executive had ever called up an army of 75,000 to suppress a rebellion without prior congressional authorization.

But, the Militia Act of 1792 specifically so authorizes.  President Washington used it to call up 15,000 to fight the Whiskey Rebellion.  Let me just quote, which is partially tiresome, since the guy should know it:

And if the militia of a state, where such combinations may happen, shall refuse, or be insufficient to suppress the same, it shall be lawful for the President, if the legislature of the United States be not in session, to call forth and employ such numbers of the militia of any other state or states most convenient thereto, as may be necessary, and the use of militia, so to be called forth, may be continued, if necessary, until the expiration of thirty days after the commencement of the ensuing session.

This is what was involved -- Congress was not in session and normal procedures were not adequate to "by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals" to execute the law.  

Then, perhaps to throw the other side a bone, we have various civil liberty issues during the Civil War.  This includes applying old sentiments about seditious speech, which we no longer deem appropriate, but were acceptable to many Framers even in the "quasi-war" with France (Alien and Sedition Acts).  

And, there is the suspension of habeas corpus, which the Constitution specifically allows during rebellion.  The most "blatant" case some cite is the famous Merryman case, but again, Congress wasn't in session.  The specific provision might be in Art. I, but sec. 9 in some clauses says "Congress," some doesn't.  The Habeas Clause does not. 

I covered this in the past and there are extended discussions and books on the general issues.  One thing that is striking to me is that Reverdy Johnson, who supported the (Dred Scott v.) Sandford side and later was against use of military commissions in the assassination trials supported Lincoln on this point.

One more thing.  There is the usual citation of Lincoln's "all laws but one" trope.  But, it is not like that was his only argument.  He used it as one last extreme take.  Lincoln still defended himself on the grounds that with the Congress out of session, he had the power to suspend in an emergency. And, when Congress came back (he called a special session), they supported him.  That check is there too -- once called back, Congress can impeach a POTUS for crossing the line. 

Witt notes Oakes is critical of the 1619 Project, which I simply did not read.  The controversy to me seemed overheated, more upset at criticism of the United States.  Oakes appears (glancing over the thing Witt links) seems to have felt the project was overheated in criticizing stuff not taught.  Again, I did not go into the weeds.  Surely, for instance, that is a matter of where you look.  But, Oakes basic arguments still hold here.

Sean Wilentz provided a previous critical review of the Feldman book here. People in the past have found fault with his analysis of certain things.  And, there is a variety of shades of gray on analyzing the Constitution here in general.  My basic argument, however, is that you do not have to say Lincoln "vindicated" it.  

You can say, contra Feldman, that he acted in broad ways within its terms, especially regarding slavery.  For instance, the Constitution calls slaves "persons."  That matters.  There was a common assumption that the Constitution treats them as "property." That isn't actually what the actual text says.  Even Witt argues that Oakes mistakes antebellum thought without saying said thought is compelled by the text. 

And, a basic principle in Witt's discussion contrasts "a state’s authority to free the slaves of its own nationals in wartime was uncontroversial" contra doing so for the "enemy."  You cannot do the latter, as seen by one "abuse" cited in the Declaration of Independence.  But, under the Union's view, the South WERE "nationals."  There seems to be a prime case of talking past each other in that respect.  

The Constitution of 1787 was a compromise that had to address the needs and realities of the times.  It is not wrong to realize this while also noting what evils were accepted in the process.  Still, it is wrong to ignore the true nature of the compromise.  This includes open language that allowed various approaches, including Lincoln's own.  

The Constitution very well advanced slavery.  How could it not realistically?  But, it is somewhat amazing it "enshrined" (to use Feldman's word) so little. Things were very well assumed, furthered in part by political party coalition compromises mixed with racism that until the mid decades of the 19th Century severely slanted things in favor of slavery.

This is far from compelled any more than let's say a sexist interpretation of the Constitution.  One last thing regarding Feldman's reply that equal protection was not recognized in the original Constitution.  Let me quote the exact text:

The document, obviously, thus contained no guarantee of equal protection anywhere, including the Bill of Rights.

Ah, the use of emphasis to cover up a weak case.  Anywhere?  There are  multiple protections of religious equality, including against test oaths and favoring one religion over another.  There is a bar against titles of nobility.  And, there are repeated references of "the people" and "persons" with various rights without any exceptions.  No special classes of "persons" like "men" or "women" having jury trials or something. 

Antebellum thought well recognized some basic concept of equality, the Declaration of Independence not just some highfalutin moral wish casting.  The basic assumption, surely, was basically that an equality principle applied to white adult males though that is pretty significant in a world where property and other caste was well recognized.  

And, others had some basic rights too.  At the very least, white women could not be enslaved akin to blacks.  There was some bare minimum equality in place.  Look at even the 3/5 Compromise exaggerated as "enshrining" slavery (it doesn't even deign to use the word!), which counted non-slaves one by one.  Even free blacks.  A form of equality.  

One of my basic philosophies is that life is complicated.  History and constitutional analysis shows this on a regular basis. 

LGBTQI+ Pride Month

I, JOSEPH R. BIDEN JR., President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim June 2022 as Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex Pride Month. I call upon the people of the United States to recognize the achievements of the LGBTQI+ community, to celebrate the great diversity of the American people, and to wave their flags of pride high.

Pride Month is timed in honor of the Stonewall riots, which took place at the end of June in 1969.  The full acronym seems to be ever expanding (no "A" for asexual or something?), but the riots provided a taste of the diversity of the movement. For instance, trans people were surely involved, even if today they are treated as an appropriate target in multiple states.  

The riots were a reaction to continual harassment and mistreatment.  The specific spark was yet another police raid to a mob controlled bar.  But, there was a wider meaning to the whole thing.  The bar was one of the few places certain people could openly associate and be themselves.  And, even there, they could not truly be safe from often dehumanizing police attacks.

The Biden Administration (following in the footsteps of the Obama Administration)  has taken special care to emphasize its support of pride. This includes both who they appoint (including a member of the Cabinet and the current press secretary as well as multiple judges) and its policies.  Meanwhile, it took until 2019 for the Trump Administration to announce pride month, and in multiple ways it opposed LGBTQI+ rights. 

There has been some signs in recent years, on a bipartisan basis, that society respects the pride banner.  Individual Republicans and at times as a group in power respect gays and lesbians and trans people in various ways.  Multiple Republican governors in recent days have at least opposed the breadth of anti-trans measures, including by vetoes.  All the same, there is still a clear division between the parties on such issues. 

This month honors the complexity and diversity of sexuality.  History has always shown that humans cannot be put into clean little boxes here.  It might be noted that in some general fashion certain basic classifications are in place across cultures.  This does not mean, to be clear, such "basic" lines are the only valid ones.  But, some very basic lines can be seen. 

But, even there, there tends to be complexities and exceptions.  And, even such little things as hand-holding and other signs of affection being more accepted among men in some cultures reflects the differences.  Gender particularly has various cultural differences.  And, then, we can see specific differences in people themselves, including sexual characteristics.

Complexity can be confusing, complicated, and at times a bit scary (or some "c" word meaning that).  We can admit that and work together to find common ground and respect each other.  And, as we do so, we can respect the accomplishments and abilities of everyone involved.  This can be true even if we do not always accept everything about each other. 

As noted on this week's episode of Gay USA, a weekly LGBT (as noted at its website) news show that I have personally watched for approaching twenty years now, a fitting symbol was put in place recently to honor pride month:

After years of advocacy spanning across two presidential administrations, LGBTQ activists and federal park officials joined together to raise a Rainbow Flag on federal property at Christopher Park on the first day of Pride Month.

(You can see a photo of the long serving co-hosts of Gay USA at that link. One occasional fill-in host is the activist/bird watcher, who became nationally known for an infamous Central Park encounter.)

A rainbow flag, showing all colors, is a fitting symbol for the diversity honored this month.  We have gone far -- in the 1990s, the specter of same sex marriage was so horrible to consider that the federal government singled it out for burdens.  This is so even though the idea was not truly novel even then.  I found a paperback book on weddings published in the early 1970s, which has a few pages of same sex weddings.

We still have a ways to go, again noting how multiple states (including Florida and Texas) are going after trans children, particularly in athletics.  There is reason to fear that this Supreme Court will go backward though it is unclear how far.  We still have gone quite far.  We should remember that, especially when the times leads some to be quite bleak.  

For now, as another Joe, I say let us honor and celebrate LGBTQI+ and the diversity and complexity of us all.  

ETA: This blog post cites a recent state trans bill to "save women's sports" or some such.  It is the sort of thing being tossed out there -- some specter of trans athletes ("trans" many might say) threatening women's sports.  

In practice, you have a few trans students, fewer playing sports, and we are talking single digits regarding any with any real special skills that would matter.  Meanwhile, you have others who have some special athletic ability or some other non-trans related body type that is atypical particularly.

For this "problem," there is a blunderbuss approach that invites abuse.  A few (two in particular) in comments try to small print the whole thing, which is bending over backward for something that doesn't warrant good faith assumptions.  It not really much different than burdensome rules against non-existent problems of "voting fraud." 

Such people are annoyed in part at what they see as overheated rhetoric, which is invited by the people involved. This includes the latest Republican tactic at hearings in Congress to ask people to define "men" and "women" or ask things like "can men have abortions."  I find screeching annoying myself, but you know, at some point it's understandable given the trolls involved.  And, even there, regularly they are right on basic points.