Early Voting

The "first Tuesday after the first Monday" (something to do with the Sabbath, but sort of obsolete now) deal means Election Day is later this year. More time to dwell on what is at stake and how easy it is to believe the result will make things worse. How much? To be determined. People want "change" someone told me. Empty without content.

Early voting began in New York City so I went to get my sticker and free stylus pen. A range of state and federal races, plus the "what is the point, we don't know these people" judges. Wrote in a couple as a protest. And, a few ballot questions.

The state bond measure is large enough to make the vote sensible, I guess. The city ones are worthwhile to get public input. But, many of these things really should be left to our representatives. Heck, I think voting for comptroller is iffy. Attorney general is tricky given the breadth of power and the value of having the people indepedently vote for them.

SCOTUS Watch: Alito/Kagan/Thomas

Two somewhat related "administrative stays" (by Thomas and Kagan), which keeps things in place while the Supreme Court examines the case, were dropped this week. The general assumption by court watchers is that this is a standard thing that does not tell us much at all about the merits. 

Lindsey Graham

The first involves the efforts to require Sen. Lindsey Graham to testify to a special grand jury investigating Trump's attempt to criminally interfere with the vote count in Georgia.  The 11th Circuit, a conservative leaning court, agreed with a middle of the road path that required Graham to testify about certain matters.  Graham was given a somewhat generous amount of room to plead his congressional privilege that has never firmly been shown to even apply to a single senator doing his own investigation.

The general sentiments I have here is twofold. 

(1) Sen. Graham has a duty to testify and it's outrageous he isn't doing so.  The constitutional issues there are somewhat complicated but the 11th Cir. provided a fair middle ground. Anyway, it shouldn't matter.  He should voluntarily do it.  

(2) Thomas should recuse himself from all Trump election disputes given the appearance of impropriety.  As noted by more than one liberal minded law type, him not doing so makes his otherwise bland order here look much worse than it is.  

Steven Vladeck, who I usually agree with, on Twitter was more dubious about it being clear that current ethics requirements hold that he MUST do it since this is not a direct Trump case.  I find that overly fine tune parsing.  Vladeck still as I understand it thinks Thomas should as a matter of good policy not take part.  

Kelli Ward

Kagan's order involves the 1/6 Committee attempting to get phone records.  She put a bit more teeth in it by asking for a reply by Friday afternoon.  Thomas just stayed the lower court without a time limit though briefing by both sides has commenced already.  

Again, the docket page (it would be more useful if the order provided a direct link for people who read it on the website instead of needing to input the docket number on the docket page) has the various materials in these cases for people interested. 

One news article summarizes the issue at hand:

She gave the House committee until Friday to submit a response to an emergency application from Arizona Republican Party chair Kelli Ward, who was among so-called “alternate electors” subpoenaed by the committee.

The “alternate elector” plot from the former president and his allies relied on a bogus legal theory involving a slate of fraudulent certificates from key states that falsely asserted Mr Trump’s electoral college votes.

I'm not sure why this specific thing, among all the requests, resulted in this sort of order at this time.  I'm somewhat of the sentiment that it was timed to come down with Thomas' order to show a sense of rough even handedness.  I might be off there, but sorta looks that way.  

Anyway, as requested, the committee did submit a brief challenging the request for a stay.  

===

Alito Interview 

We have heard from time to time reporting about justices giving speeches or being interviewed.  Alito has repeatedly been part of this coverage. 

The latest is more grudge Alito stuff, including the idea that leaking the Dobbs draft (which still very well might be conservatives; they surely leaked news of behind the scenes developments ... the coverage, including Thomas' own statements, also were rather anti-Roberts) increased a chance of "assassination."  

An unhinged person did show up outside Kavanaugh's house, but he turned himself in before doing anything, perhaps because he saw that the house was guarded.  Federal judges have been threatened in the past, including a family member being killed.  A judge was murdered when Gabby Giffords was attacked.  

Pending congressional legislation aims to help further protect judges.  It is not likely the leak added to this much, and strong opposition is well warranted, including because of the ruling's threat to women's life and health.  

Alito can't really be taken seriously, but it's appreciated that he is talking openly like this.  We even have video on C-SPAN's website and so on.  It would be nice if justices manage to use the Court's speech page, but hey, it is a form of open government.  And, though his concerns about people badmouthing the Court as the actual thing that is illegitimate is bullshit,  he basically is helping the cause here. A sort of Barbara Streisand Effect.

==

Upcoming Affirmative Action Case

There was a conference today and orders will be dropped on Monday. Monday is also the beginning of the November arguments, including the two big college affirmative action cases.  

The cases were originally combined, but Justice Jackson's involving with Harvard led them to be split. So, there will be some overlap, and perhaps some will be satisfied with listening the first case's oral argument with Jackson's involvement. The Harvard case has the additional edge of an argument the policy harms Asian-Americans.

Both cases are still similar.  Both are products of an extended anti-affirmative action advocacy movement. The North Carolina case is skipping a level, in the Roberts Courts tendency in recent years to allow this in ideological cases.  Both are asking the Supreme Court to overrule cases allowing affirmative action (at the very least under current strict but not fatal scrutiny) and making claims it violates federal civil rights law. 

The North Carolina case also makes an argument that affirmative action violates equal protection.  So, one can imagine some frame that a "moderate" path is available that does not totally close off affirmative action (which involves a range of things) but make it real hard to use it in education and maybe other contexts. 

The net thing here is that this is yet another issue where the 6-3 Court will be able to push things toward the conservative side, even further than Justice Kennedy (who allowed affirmative action here in the end) wanted to go.  As a matter of principle, it's how law develops over time. The problem here is twofold: the merits and how this current Court was created.

On racial questions, this is a time old story.

What the Ermine Saw

I'm not much into art, but recognize value. I don't recall knowing about this painting by Mona Lisa guy. But, it has an interesting backstory, including its journeys through the centuries. The author is not a historian or art expert, so be somewhat beware of the details (there are no end notes). Still, I liked the book overall, and it has a lot of good pictures.

The painting itself is interesting. The ermine looks a bit weird (some thought it was a "weird dog") and her one hand looks weird too. Also, apparently the style was to tamp down all the hair. The subject of the picture was probably a teenager when it was painted; maybe 15/16.

Sports Sunday

The Giants and the Jets keep on winning, this time playing possible "trap" games including the flawed but still talented Jags and the defensive rich Broncos (with a back-up QB) with the Jets needing to deal with various injuries. The Giants hung on (a goof out of bounds that gave the Jags another 40 seconds at the end) and the Jets won a low scoring affair.

The old pros at Tampa (Tom Brady) and Packers (Aaron Rodgers) continue to struggle, both this week to bad teams. As I type, the Bears are doing well versus the flawed Pats, showing it now. And, the Yankees offense finally showed up against the Astros, but their pitching was suspect. Yanks knocked off again by the Astros, this time in a sweep. Phils got in. Sure.

Pigs and Stuff

There was a complicated Supreme Court oral argument this month about pigs. California passed a measure that limits sale of pigs (including those raised outside the state) to those raised in somewhat more humane conditions. For those who want to learn about our history with pigs, Lesser Beasts: A Snout-to-Tail History of the Humble Pig was pretty good. It says little about Africa and Asia (if some about China), but covers a lot of history.

The author of that book has a background in history. The background of the author of Once We Ate Animals: The Future of Food is in research not really focused on the history she covers. It shows. Plus, with this title, I assumed it would be a whole lot more about the actual "future" of food. It really just covers a lot of basic ground you would read in a pro-vegan book. Again, at times not that well. I basically agree with this take.

The book includes a couple snapshots of a possible future. One is basically a young character on a tour of a former slaughterhouse. Another is a rather depressing sounding snapshot of life in the not too distant future at home. It again does not really tell us too much about the so-called "future of food." The whole thing comes off as false advertising. It's okay as a whole, but the basic stuff is better told elsewhere.

Benjamin Cole Executed

Cole was found guilty of the brutal murder of his daughter, Brianna Victoria Cole, on December 20, 2002, per the attorney general’s office, when her cries interrupted him while playing a video game.

People who oppose the death penalty might cite easy sounding arguments about concern for innocence or bad lawyering.  

But, I and others do not refute that these are some horrible crimes. The issue remains if executing the people involved is the right approach. Repeatedly, there are reasons that tell us "no," and rarely is it a truly pure case (though they exist) simply about first principles. 

Benjamin Cole was offered life without parole, but rejected the offer. This alone is not proof the whole thing is bad -- some people risk a trial for at least half-way reasonable consideration.  As noted in the article, however, the decision here shows signs his competency was in doubt.  This was more so over time.  It might very well be a matter of some dispute.  I did not do some deep dive here. Executions, however, should at the very least only be applied in the most clearest of all cases.   

Benjamin Cole was executed.  First, there was last minute attempts for a stay of execution and a federal habeas application to the Supreme Court.  The orders in response were dropped yesterday and today.  The usual reference to a "brief" order is cited.  Let us forestall possible confusion. The order did not actually "briefly" explain why the final request based on the competency (and specific process used to determine it) was rejected.  The orders simply said it was denied, noting Gorsuch was recused.

(Oklahoma, who set up multiple execution dates as a sort of "catch up" after delays caused by its own failures, is in the circuit Gorsuch oversees. He probably was involved in Cole's case at some point over the twenty years since Cole was convicted and the death sentence handed down.)  

The Supreme Court is not here merely for error correction. And, it very well might be the case that Benjamin Cole did not meet to requirements in place for the competency claim raised.  This is open to dispute.  It is less so, in my eyes, that it is wrong for the Supreme Court to reject his final requests to stop his execution without a single justice (or whatever some of them should be called) explaining why they went along.

Benjamin Cole, very much likely in some fashion influenced by mental defect, committed a horrible crime.  Executing him twenty years later, or sooner to be clear (though a long delay is itself problematic for penal justification -- see, Justice Breyer's dissents), is bad public policy. I think as a whole, it very well probably is a violation of sound constitutional principles.  As is the Supreme Court not explaining itself.   

November is scheduled to be a busy -- as far as these things go -- execution month involving multiple states. Let see if the Supreme Court, or even a single justice, ONCE manages to substantively explain itself before going along with state authorized deprivation of life.  Liberals disappointing me here too.

The coverage includes the usual references to the horrible nature of the crime and the dangers of Cole himself.  One article notes the death was not some sort of one-off, but Cole was a danger to the child (and mother) for an extended period of time.  Child abuse is a grave wrong. Executing a few parents arbitrarily is not way to go. As is often the case, the tough on crime and justice rhetoric is a misplaced argument here.  

Order List

The Supreme Court dropped a basically no drama Order List today and now will take a bit of break until the last Friday of the month (conference) and then start arguments again on Halloween. 

The Supreme Court asked the solicitor general an opinion on a case involving (to quote Amy Howe) "eligibility for a patent for a method that would allow the Transportation Security Administration to screen airline luggage while at the same time allowing passengers to lock their checked bags."  The case does seem to be of some interest to the federal government though the Supreme Court itself would likely be more concerned about it being used to provide clarity in patents law in general.

Issue: Whether persons born in United States territories are entitled to birthright citizenship under the 14th Amendment’s citizenship clause, including whether the Insular Cases should be overruled. 

The Supreme Court did not take a case that in part asked them to reexamine the infamous Insular Cases, which treated overseas territories differently than the courts handled territories in the past.  The basic problem here was the racist idea that overseas territories should be treated differently because the people were unready to be citizens.  There was also some debate over how to properly regulate territories, especially territories that unlike traditional ones were not destined to be states at some point.  

In a recent case, Justice Gorsuch voiced his opposition to the Insular Cases, noting he was open to a case that would overrule them. The case involved a benefits scheme that treated Puerto Rico differently.  Sotomayor alone dissented, arguing it violated the due process by unreasonably treating residents differently.  She did not deal with the Insular Cases.  

A tricky issue in this case is that both the federal and American Samoa government does not want the Supreme Court to take the case. The latter in particular suggests certain outrage might be misguided on some level.  As the latter government noted in one brief:

As the federal government and the federal courts have recognized, that unique status distinguishes American Samoa from the fifty States and the other territories, and contributes to its ability to maintain its traditional cultural practices.

I am not quite sure how this follows except to the degree that current conservative opposition to race-based policies (though as with Native American cases, as least so far, you can frame them as not race based, but tribal or nation based) would result in problems. 

But, even there, I'm unsure. They still are "persons" under constitutional control. They cannot, for instance, ban freedom of speech or something.  What specifically about them being American "nationals" as compared to "citizens" do here?  Do residents of Guam do not have "traditional cultural practices" too?  I guess the issue is a sort of Pandora's box argument. If you change their status, something might happen.  

They are okay with the situation as is.  If so, is it really the national government's place to say "no"?  What this basically leads to is a question of what exactly is left of the Insular Cases.  The social security benefits case to my understanding was helped by but not fully reliant upon it being Puerto Rico.  And, Sotomayor's dissent shows an ability to protect benefits there without totally overruling the Insular Cases.  

Cases back to the 1970s at least also reaffirm that the old time idea that the precedents must be read to protect fundamental rights. So, unlike in the past, you cannot argue residents are unfit to be a member of a jury or something.  There is also the concern that "no difference" might result in complications when regulating federal zones like GITMO.  So, maybe, this case was not really an ideal case to re-examine the cases.  

The petitioner has repeatedly abused this Court's process, the Clerk is directed not to accept any further petitions in noncriminal matters from petitioner unless the docketing fee required by Rule 38(a) is paid and the petition is submitted in compliance with Rule 33.1. See Martin v. District of Columbia Court of Appeals, 506 U. S. 1 (1992) (per curiam).

This statement is at the end of the orders list and it is one that you sometimes see.  In the original case, Stevens and Blackmun as a matter of equal access to justice would not have blocked future petitions without a filing fee.  I have not see a justice in recent years dispute one of these things, including Sotomayor.  Note the "noncriminal matters" part.

I looked up the petition -- you can do that via the docket page of the website by typing in the number, and many of these are frivolous -- and a brief perusal suggested the petition was at least somewhat legal sounding though it was hard exactly to see what the complaint was (I did not try that hard to delve into it).  

I am inclined to follow Stevens and Blackmun.  What is the test here anyway?  If you are going to block, at least explain why.  One more for the open government file.  BTW, there is a separate rule about "frivolous or malicious" petitions (39.8) where they can deny the benefits of filing as a "pauper." Sometimes cited.

===

Order lists are often just the Supreme Court going about its business, if business important to specific litigants, but they have at least minimum interesting things mixed in.  For instance, as usual, one or more justices did not take part in certain cases.  Why?  Well, we are never told.  Some think we should be, especially if it is a financial conflict.  

I don't think that too important though trying to figure out why might be a fun parlor game. I think it might be helpful. Again, open government is a good policy.

===

See you soon.

Sports Sunday

I referenced watching Brian's Song recently. The movie is in part based on Gale Sayers' first autobiography. Decades later, in 2007, he co-wrote another. The book is down to earth, plain spoken, and in various cases inspirational.  There is a chapter on Brian Piccolo. We also learn he divorced his first wife (seen in the film). 

It is not "deep" or anything, but something an average fan (including a teenager) would be able to read.  He at one note flags the football skills of O.J. Simpson, but says his guilty is between him and God.  I would think it would be a good inspirational book to give to young people, especially with its support of family, hard work, and the promises of success if that is done.  The book also has a section on the importance of taking care of older players, from the era when they made very little money. 

The book shows how after a few years in football, he thrived in the business world (while spending some time in academics. The book uses a good technique of quoting choice comments throughout the book on the margins.  The last section is formation of an All Stars Bears team, which includes detailed discussion of the biographies of the people involved. 

ETA: One thing he discusses a bit is how his business took advantage of benefits for minority firms.  This detail shows how the book has a lot of stuff packed in there.  

There was some hope that the Giants and the Jets would have decent seasons, if at least in one case being something of a rebuilding effort.  The Jets QB started off hurt though back-up boy led them into a rather remarkable late game comeback that involved an onside kick.  

The teams are starting to look for real, especially the 5-1 Giants, who now defeated the Packers and Ravens in back to back games.  The Ravens aren't quite clicking, but that is still impressive. The Packers would seem to be impressive but then the Jets beat them 27-10 today, though it was 3-3 at the Half.  The Jets managed to beat Miami without their QB (or really their back-up), but this was a signature win for them.  

Both teams use their defense to keep games close and find a way to have a chance at the end.  The Giants seem more banged up, but their new head coach and defensive coordinator (and ex-Ravens guy) are showing the league something.  In both cases, it is careful not to be too cocky.  The Jets won once dominantly and the Giants repeatedly play close games.  

But, it starting to get fun.  The Jets would be tied with first if the Bills lost to Kansas City today.   The Bills won though.  I don't think the Jets will win the division or something so really am not chasing that.  I still fear somehow the Pats (on their back-up now but still winning) will jump ahead, so I'll root for each New York team, including the one that actually plays in the state. 

The one baseball game left from the division round was a possible Yankee elimination game, after them blew a lead of more than one run in a playoff game after 167 chances (this is rather remarkable, since it isn't too hard to score two, and it is not like even Mariano was perfect).  Looking at the box score, the Guardians had a lot of hits. But, it took until the ninth to secure a victory. 

I am not watching these games. My thought was still "be nice if they can finish off the upsets and beat the Astros."  The Yanks actually have not been as dominant of a playoff team as some others though they have a reputation as an "evil empire" for some.  I basically want to give others a chance, so do appreciate the Padres (who seem to have reached their potential with all those pick-ups) and Phils (well more since the Braves were knocked off) -- the second and third wild card teams -- advanced.    

Astros would seem to be favored, but it took something to beat Seattle. Seattle had a multiple run lead in the first game until the 9th and held them scoreless until the 18th in the third.  So, it was not that easy of a sweep.  We will see how it goes though the NL championship race is easier since I have no strong feeling against either team really.  

The Padres beat the Mets, but that was the Mets doing for not getting that extra win to avoid them. The Padres played the Mets tough during the regular season too, even without two of the three Mets top starters doing so badly two weekends in a row. Oh well.  See ya next season. I think the Padres have the better shot in the World Series too.  The Phils do have enough pitching and hitting that they won't embarrass themselves.  

As to the Yankees, it's a sweep for New York teams,  The series will go to a final fifth game. 

Race Matters: NYC and Book

I noted recently that people can be rehabilitated or otherwise redeemed even if they spend their life in prison or are executed. 

One thing that came to mind is the book A Lesson Before Dying, a book by Ernest J. Gaines, who also wrote The Autobiography of Miss Jane Pittman, which I read (and watched at least part of a film of) some years back.  The book concerns an unjustly convicted young black man in Louisiana shortly after World War II (Jackie Robinson has broken the color barrier in MLB). In an attempt to get him off, his public defender called him a "hog," not worth executing.  He didn't have the knowledge to be guilty. 

His godmother wants him to die like a man and along with her friend pressures said friend's nephew, a schoolteacher, to help him do so. Grant is the narrator of the book.  He feels obligated to help the children of the area, but feels the hopelessness of racism and hates himself for being too weak-willed to leave.  Grant feels like he is a cog in a racist machine and is not as optimistic as his girlfriend (a separated schoolteacher) that life will change.  Grant's family and the local minister also is upset at his overall lack of faith though he still believes in God.  

In the end, Grant is able to help Jefferson feel self-worth, and he does die with dignity.  The reasonable minded young white deputy, who is willing to treat Grant as basically an equal, tells Grant Jefferson was the strongest person in the execution chamber.  Near the end of the book, we get about ten pages of Jefferson's journal, written in uneducated style, so a bit hard to understand.  Jefferson is a bit of a Jesus figure (the execution is scheduled between noon and three on a Friday, like Jesus himself) in that his actions (like Jackie Robinson) give meaning to many local blacks.  

[On the current baseball front, we have had multiple upsets, now with every National League divisional leader -- and the #1 wild card (Mets) -- being eliminated.  The Astros did advance.  The Yankees are down 2-1, but that is a battle between divisional leaders.  The American League has not been as crazy in the playoffs though we did have two long extra inning games.]

I liked the book as a whole and Grant is a sort of reasonable narrator that you can relate with better than let's say one of the racists or the white deputy (the approach of some stories).  It would be interesting to see more in the mind of the minister and other characters, who we see secondhand through Grant's eyes.  The book does show that there is some ability to obtain a bit of redemption even among so much injustice.  

==

A commission was formed to address racial justice matters in New York City.  I was not aware of this before reading about three city ballot measures that will be on the ballot this election, which arose from the commission's suggestions.  There is a fourth measure which is a state ballot question involving okaying a large bond issuance to further environmental matters.  

I continue to be wary about these ballot measures.  I really have not major insight above and beyond the state legislature and other state bodies about if this bond measure (if one larger than usual) is a good idea or not.  When the question is a much small spending matter or as I recall in one case the validity of using some state parkland for some purpose, it is even less useful to set forth this matter to a public vote.

Maybe, a bond measure this size should get public approval more so than other ballot questions.  I will vote "yes" on it myself probably.  The city measures are somewhat different.  One supports a preamble to the city charter to provide a statement of purpose.  It is a good idea for the public to be aware of this and take part in a vote to support it.   I'm not sure how useful it is, but it is fine to include idealistic aims in public charters. 

One article summarized the purpose of the three ballot measures:

The impetus for the amendments came on the heels of the COVID-19 pandemic that disproportionately harmed people of color as well as the protests against police brutality that rocked the city during the summer of 2020.

These ideas began on March 23, 2021, when then-Mayor Bill de Blasio announced the creation of a Racial Justice Commission and tasked it with two major objectives: Examine structural and institutional racism across the city and recommend amendments that would rectify those issues.

Again, this is a public concern, and the public getting involved in voting on measures that the commission supported makes some degree of sense.  This is so more so because the measures are not merely technical policy issues like the value of a bond measure.  There is more of a reason to have the public at large involved here though you might argue it is true for the bond measure too.  I do see a difference. 

The next proposal regards the formation of a program where a racial equity plan needs to be developed every two years and a specific Office of Racial Equity formed to do so.  I guess this is okay, but it did not really appeal to me.  It seems like another level of bureaucracy.  Is New York City not NOW addressing racial equity on a consistent basis?  I can read through the report, but what exactly does this plan/office deal do to help matters much more?  

The final measure concerns requiring the city to use a "true cost of living" test.  The report argues that the current economic indicators do not adequately provide a true cost taking into consideration all the relevant factors for residents of the city.  I am willing to let this be tried though I'm wary of not providing the city flexibility if it turns out not to work well.  Is a ballot measure as compared to a city council bill the appropriate way?

At the end of the day, I remain wary about ballot proposals, even if the overall goals of racial justice here are obviously important. 

SCOTUS Watch: Trump Denied Again etc.

The Supreme Court denied a request from former President Donald Trump to intervene in Trump v. United States, the dispute over documents with classified markings seized from Trump’s home. There were no recorded dissents from the court’s order.

This is how one account summarized the news when the order dropped. Amy Howe's analysis is as always is a useful place to go. Steve Vladeck (shadow docket guy) previously noted the ask was minor, looking like a way for Trump's lawyer to show him that they were doing something, without making such ridiculous claims to amount to an ethical breach.  

A flag that the justices did not find it compelling was that Thomas (who is assigned that circuit) giving the government a week to answer the request.  The biggest thing here -- other than a sort of symbolic loss  on the say the 1/6 Committee finished up subpoenaing Trump -- really is Thomas' involvement.  One analysis flagged Thomas as anti-Biden. 

His wife's dealings [not covered in the hearing from what I can tell] trying to overturn the election also is a concern.  This is not directly about the election as much as past cases, but it ties together regarding appearance of impropriety.  Thomas does not seem to be having any concerns; he had fun this week during one of the oral arguments.  Maybe, this whole thing will help the push for more ethics reforms for the Supreme Court.

===

The Trump related order got some attention, but there was no real likelihood that the Court wanted to get involved. Again, it seems like it was a mild request regarding an ongoing matter.  On the same day, another minor procedural matter was disposed of, a request referred to the whole Court rejected.  I again think the Supreme Court should simply clarify what they are doing here to help public awareness.  A brief description would do it for me.  It's less important than a death penalty case, but still.

==

After they got their feet wet with oral arguments (notable cases and otherwise), the Supreme Court will release more orders next week. And, then, there will be a bit of a break, before the affirmative action cases.  There will be a possible execution mixed in between.  The new term has now kicked in, the main theme being that Justice Jackson is an enthusiastic/skillful questioner. 

SCOTUS Watch: Order List

Petitioner Andre Thomas was sentenced to death for the murder of his estranged wife, their son, and her daughter from a previous relationship. Thomas is Black, his wife was white, and their son was biracial. Thomas was convicted and sentenced to death by an all-white jury, three of whom expressed firm opposition to interracial marriage and procreation in their written juror questionnaires.

Justice Sotomayor found another case with troubling facts to flag in an Order List, this time bringing with her Kagan and Jackson. The basic facts is likely to lead people to say "what is wrong with the conservatives," though the case turns on the high standard necessary to summarily reverse a lower court. Here for ineffective counsel. Does seem a blatant case.

The role of the Supreme Court as a whole is not meant to be error correction. The lower courts have lots of cases, some of them decided wrongly.  The Supreme Court generally should take cases involving major national questions (such as if a congressional law is declared unconstitutional) or when there is a disagreement on a question among the lower courts.  They do sometimes flag blatant errors like this allegedly is. 

Let's not even go into the "not the immediate issue" point here involving the guy removing his own eyeballs.  This sounds like he would be blind though that is not really crystal clear.  After all, maybe there was a way to put them back in.  There is also a bit involving the state seeming to warn the jurors about how the scary black guy might get one of their family members. The case has racist aspects, in a death penalty case.

The guy seems unhinged, even if (as the state claims) he made himself unhinged by drinking too much cough medicine (seriously). He shouldn't get the death penalty on that ground alone. But, the other matter would have been problematic even in a non-capital case.  It being capital, makes SCOTUS not acting here more so.

===

The other stuff is apparently not too notable, looking at summary reporting from court watchers.  One case earlier flagged by a liberal Supreme Court reporter as a trivial case (on the facts) with problematic implications, if the wider conservative arguments were met, was disposed of as moot.  

The procedural approach disposed of the lower court opinion, which protected voters from their ballots being disposed of because of certain trivial errors.  Sotomayor and Jackson would have avoided doing that.  This is not clear from the bare bones order sometimes hides some stuff out of view.  

===

There were two oral arguments, the first another case where the new questioning (open questioning and then each justice gets a chance specifically) really encouraged a long argument. The first half took over an hour though the second was not that long.  

(I don't agree with the link that California is blocked via Lawrence v. Texas from resting their law on morality, here animal welfare. That case said bare morality could not deny someone a protected liberty.  Scalia's argument aside, it is far from clear ALL morals legislation went by the wayside.) 

The second oral argument involved the right to get DNA testing in a capital case, but it involved a rather technical question. 

Indigenous Peoples’ Day

In the early 20th Century, Italian-Americans were discriminated against, including limits on their immigration to the United States. A new Minnesota Columbus statue was a symbol that Italians were not only true Americans but “white Americans.”

A book on public monuments touched upon how Columbus became a way for Italian-Americans, when they weren't quite "white," to show they were part of the tribe. The tribe being Americans. Pun intended. The matter is alluded to by Biden's proclamation for the Columbus Day holiday.

The appropriate thing in the minds of many -- though my Italian rich area had a Columbus Day parade over the weekend -- is to call the holiday observed today Indigenous Peoples’ Day. Biden covers that too.  Let's not forget Leif Erikson Day, officially yesterday.  The Norse knew how to do things: settle for a while, but die out, while natives continued on.  

Columbus is an understandable tool for Italians in context. "Columbia" and so on was long an American symbol.  Consider our own nation's capital, the District of Columbia.  The original symbol was a woman -- you can't have some Catholic Spaniard (or whatever) symbolize the United States.  Still, he is not exactly a great choice.  There should be better Italians though Columbus gets to be tied to an origin story.  See also, how Romans decided to find a way to adapt Homer's stories as an origin story too.

Anyway, Columbus was a problematic character, as shown by how the Spanish eventually arrested the guy and all.  Not that you can find too many great colonial Spanish characters vis-a-vis the dealings with Native Americans.  And, then, that leads people to consider how this country dealt with Native Americans.  When Mexico was deemed not worthy of governing the American Southwest, let's say they had little chance.

The bottom line for me is that this weekend allows us to consider the full complexity, warts and all, of European settlement in the "New World."  I think we can get a bit sanctimonious here as if there was something "white" about what happened.  I welcome a bit of reading about the Mongol conquests.  Or, how anti-Aztec Natives helped the Spanish in Mexico because the Aztecs weren't great, including use of human sacrifice.

This is not about hand-waving and saying all is well. It is a recognition that over the course of history waves of people migrated throughout the world and thru conquest, disease, and other things with applications to what happened in the Americans, replaced native peoples.  On some level, this goes back to the Cro Magnon replacing Neanderthals.  

We have a duty to remember and understand, especially since many of the descendants of the Native Americans of the past are still with us.  And, in the process, we can have the best up to date celebration of holidays, which can be complex things.  Thanksgiving shows this, including "days of thanksgiving," which historically were also moments of repentance.

Oh. Happy Canadian Thanksgiving. 

Sports Update: New York's Long Day

Starting the new format, three of four of the wild card weekend games were decided 2-0. There were upsets. Seattle came back from a large deficit, after winning the first on starting pitching. The Phils relied on starting pitching and the Cards blowing it in the ninth. It took until the 15th to get the (one) winning run, but the Guardians was the one as expected winner.

Scherzer and hitters didn't show up in Game One, but deGrom and hitters did in Game Two, for the one 1-1 result.  It would be nice if the Mets weren't here, but they are making it exciting (or something; I'm on the exciting and something side).

The Mets did their usual to win that game. Good starting pitching, making the starter work, and having a big inning.  The closer was put in the seventh, but was left in after they got a bigger lead.  The net result was that the Mets still had to sweat, the Padres loading the bases in the 9th. It ended out okay.  

It wasn't even clear that Daniel Jones would even start, after both Giants QBs got hurt last game.  But, he did, though he didn't look too mobile or anything at the beginning. Jones started to become more mobile as the game went along, in a game that was a statement of his toughness as it went along.  A quick reply (FG) by the Packers made in 20-10 at the Half, which looked respectable, but still the Giants were down by 10.

Well, IN LONDON (Tampa and Seattle gets Germany), the Giants held the Packers basically scoreless the rest of the way.  Up 27-20, I figured the Packers would score, and it would turn to the Giants winning maybe 30-27.  But, it took longer and longer for the Packers to score.  It was 3 and 2. 

And, the Giants STOPPED them with a little bit over a minute to play at the Giants 6.  Tossing in a safety [27-22] to take a few more seconds off the clock (I wondered why not a few runs too; they knelt), there was 10 seconds left. A free kick was better than a punt, since it pushed the Packers back further, and they had a five yard penalty too.  Back to his own 35, a few seconds taken on a return, no miracle. The Giants are 4-1!  

 

The London games have been pretty exciting so far.  

Meanwhile, the Jets had Miami, who started the season well, but then their QB got hurt.  Miami has a decent back-up, but he was out early. The Jets didn't take advantage for a while, the score 19-17 (Jets once up 12-0) after the first post-half series.  But, that is as close Miami got, the Jets scoring 21 unanswered in the fourth quarter. So, with the Bills blowing out the Steelers (new QB this year), it was a good day for New York teams.  

The Jets now face ... the Packers.  Not IN LONDON though.

Long day for New York fans.  After two games before 4:30, you had time for an early dinner to prepare for the deciding Mets game. Walker not on the roster originally, came on after Joely got hurt.  He's was your only true lefty reliever though Peterson did pitch one scoreless against the Padres.  Rodriguez has been good at times over the season. On the IL, he would not be able to face the Dodgers, but fist the Mets had to get there. 

They didn't really show up. One hit.   See ya next year. 

RIP Loretta Lynn

Erik Loomis is a college professor, who specializes in labor and environmental history issues. He blogs at the blog I check regularly to read about the latest news and have a chance to give my .02. 

It also has weekly threads for NFL games and other things. Erik Loomis, for instance, has over a 1000 "grave entries" where he visits graves of historical characters as well as weekly music coverage. Music is one of his interests, making Loretta Lynn's death (she was over 90) of note for him.

My mom favored country music as I grew up, so a country music radio station was usually on. I enjoy country music as a whole too. Loretta Lynn is not of special interest to me personally. She's clearly a music pioneer, including among women country music singers. She also had some troubling right wing beliefs, including being a Trumpie. 

Since it's something he cares about, Loomis is suddenly "she's not just a right wing hack" about her. As noted in comments, he is not exactly consistent there, but he is not alone. We can honor her talent as well as flagging how she used her celebrity to promote bad ideas. And, it helps show that people are complex, and bad things are not just promoted pure.

Anyway, including with a song about the birth control pill, Loretta Lynn had quite a life.  I am listening to her music now.  Again, I like her, but she did not influence my cultural sense of things as much as some others. She was also one of those "oh, she is still alive? she is HOW old?" celebrity types.  Likewise, we can add "and Henry Kissinger is still alive" here.

I also checked out the movie version of her first autobiography, Coal Miner's Daughter.  The DVD has some interesting extras, including interviews the director had with Tommy Lee Jones (who plays her husband) and Loretta Lynn herself.  The DVD also has a commentary track with the director and Sissy Spacek (who Lynn herself chose to play her).  I only listened to around twenty or so minutes, but the commentary track seems pretty good.  The director is British and sounds rather posh.  

The movie has received a lot of praise. From what I can tell, it is well made and acted.  I was not overly excited about watching it, but that is not really a good sign.  I have noted that in recent years, movie watching is not really one of my things.  I do not have the patience to watch two hours of a classic biography of this nature or any such thing.  My recent watching of Brian's Song was more painless since it was only a little over an hour long.

Statement from President Biden on Marijuana Reform

A majority of GOP nominees — 299 in all — deny the 2020 election results.

And, continues to be a nail-biter (from what I can tell, some analysts still favor the anti-republicans for the House while saying the Democrats are favored in the Senate -- yeah! impeachments and pointless trials here we come!)/ There is a certain insanity and tired "how are we still in this state with all that came out" thoughts.  Explanations, including institutional aspects that run against democracy, help one's mood only a little. 

The fight continues, including the fighting loyal women in dissent at the Supreme Court.  One "truth telling" grumpy labor/environmental studies professor said dissents don't matter there.  I'm unsure how a labor historian takes that approach to the power of protest.  Anyway, I basically agree with this take regarding Justice Jackson using what might be called "liberal originalism" this week.  I would add that -- some cheers regardless -- it is not like she rested on that alone.  It's a quiver in the bow.  

When President Biden had his speech about democracy, he ended it with a message of what is possible using our democratic system.  This included some things that Republicans joined in with such as an infrastructure bill.  This part annoyed some who wanted him to focus on a "neutral" message of supporting democracy.  I was not really convinced since part of democracy is practical.  You have to show it working.  

President Biden among other things promised to address marijuana reform while not being as far left on the issue as some in the party. This is a theme since Biden is sort of a median bellwether and put himself out there all of this career [I'm reading a book about his relationship with Obama and this theme came up and apparently he followed it back from the 1970s, which is logical for a border state politician.]  But, the median have moved far.

NORML Issues Statement Regarding President’s Plan to Pardon Those with Low-Level Marijuana Convictions

When a marijuana refrom organization praises Biden, you sort of figure it might be a BFD (or at least a pretty big one).  Douglas Berman, a sentencing law expert who has been somewhat negative about Biden (his Trump v. Biden/Obama takes helped me to eventually stop reading his blog, not helped by his snarky and at times simply non-responsive takes of my comments) had this to say:

This is very big news (though not quite massive news), with lots of formal and informal ripples for criminal justice systems and sentencing.  The legal, policy, political and practical consequences of these moves are going to be fascinating (and a bit unpredictable, I suspect).

A follow-up post cited this:

The executive action will benefit 6,500 people with prior federal convictions and thousands of others charged under the District of Columbia's criminal code, according to senior administration officials.  Elaborating on the number of people affected, officials said "there are no individuals currently in federal prison solely for simple possession of marijuana."

The statement showed -- as is typical -- a carefully crafted approach the provided some moderation mixed with significant policy.  A rather unsurprising (if somewhat depressing) caveat is that undocumented immigrants are not covered.  The exact language is "citizens and lawful permanent residents," which makes one wonder about "Dreamers." 

The "ripples" statement is an important theme here and that principle can be seen in various major moves.   One part of the announcement is that he tasked the relevant people to re-examine scheduling of marijuana, which as seen in part by Gonzalez v. Raich (medical marijuana) is a basic way drugs are regulated in this country. And, treating marijuana akin to heroin and the like there is absurd.  

Total reform of the law is of course left to Congress, and from Chuck Schumer on down, big change has a lot of support. And, then there are states, which include New York now, which are starting to legalize marijuana.  I might actually have to use or consume the stuff at some point. Well, I did use hemp products (including milk), so I guess that counts?  It seems weird there to have states legalize and set up bureaucracies when the drug is still illegal under federal law, if not enforced in various ways.

While we are in the middle of a lot of insanity, we continue to try to be sane.  A few years ago, if by 5-4, our Supreme Court recognized the basic sanity of allowing same sex marriage.  This was a result of a nation-wide movement, led in some ways by the Obama Administration (who supported a challenge to DOMA), and there is still a promise that it will be protected by national legislation after the election in November.

So why not marijuana?  It is remarkable on some level (as usual, only so much) that we have not reached some settlement before now. My thought there would be a local option for at least medicinal marijuana. There was a budget provision that removed funding of prosecution of certain marijuana offenses that did not violate local law.  This was a few years back and it's hard to keep track on the status though it seems to be in place still.

One cranky conservative in comments to the Berman post said that Biden should pardon those who were convicted of possessing harder drugs. As a matter of sane policy, criminalization of simple possession is not very sane. But, marijuana still is not meth or heroin.  There is a middle ground there. And, marijuana has various uses such as changing conscious (with religious implications), pleasure, health, and general anti-establishment messaging. 

In my book Joe's Constitution, I explained the many constitutional issues raised by our drug policy.  I also noted something I continue to think we should emphasize, these things are not just a result of the courts.  We set up a three-part system of government here to carry out the ends of the preamble of the Constitution.  I appreciate Biden's role in this. 

[I have a copy of a short article by Justice Tom Clark, from the 1970s, supportive of a liberalized marijuana policy. It includes a suggestion that possession of marijuana is protected by the right to privacy.  There was also a state court opinion back in the day from Alaska saying so.]

As usual, this is all TO BE CONTINUED.

ETA: It looks like the bar of appropriations to the DOJ regarding state laws that allow medicinal marijuana (New York, for instance, allows general use) is still in place.  How far it goes is still unclear. More on the marijuana pardons etc. is covered by a new Dorf on Law piece.

Brian's Song

I saw Brian's Song (or at least part of it) some time back. It was on one of the movie channels and I caught a bit of the film again. It was a well received t.v. movie (1971) and is actually pretty short -- less than 75 minutes. It's a tear jerker, a way for men to cry (heck it's mixed with sports), and the interracial friendship still had some bite then.

I checked it out of the library and the DVD has the leads provide commentary. There is also a featurette with the real Gale Sayles (played by a young Billy Dee Williams, pre-Star Wars, in the film with James Caan playing Brian Piccolo). Something like forty-minutes is sports related, include Sayles dealing with his first injury (a second shortened his career and he went into academia and business), the last thirty or so minutes focusing on Brian's illness.

It's a crisp film. Well acted, with various familiar faces (the wives were in some things), and superior fare for a t.v. movie. The dramatic music was a tad too heavy-handed.

Mets Are Playoff Bound

The Mets ended the season 101-61, tied with the Braves (their last game didn't mean anything, so that final loss is misleading), but a September slip (Marte being out was a big problem, but not the ONLY one) means that is only good for a wild card slot vs. the Padres. Still a bit weird of a name for a sports team.

So it goes. I said I will let it go. I'm not totally there -- get to the next round -- but baseball is about not looking back. The final day of the season was largely about statistics, such as the Giants ending .500. The big Mets news is that Jeff "Squirrel" McNeil won a batting title. It was damn close -- Freeman came one hit from threatening it; the difference boiled down to .001. Freeman has various other batting records. 

But, Jeff did good, after struggling last season. Lindor promised him a car. With his salary, he can buy one for the whole team. Trevor "Swiss army knife" (lot of jobs) Williams was the "bulk" guy in the last game, Givens (who turned out to be a decent pick-up in the end) was the "opener."  The last game was a laugher (9-0 after three) even with the "B" team in.  Well, helped that the Nationals were the competition.  

As for the other teams out there, several regulars (including Cardinals) are back.  Twins and White Sox had disappointed seasons, the Guardians striving ahead after both seemed to maybe have a shot. Orioles did great with 83 wins, a thirty or something win improvement.  The Angels basically had one guy (pitcher/hitter).  A lot of teams were as expected, mediocre or bad.  Marlins showed life late, but not quite enough for the Mets in the final 2-1 loss that sealed the deal for the Braves. 

Seattle, after starting poorly, got in, basically repeating last season's form, along with the Blue Jays helped by an extra slot and the Red Sox doing mediocre.  Ditto Phils and Padres, the Phils firing their manager early, striving up, and then holding on (helped by the Brewers bad play).  Padres spent a lot of money for a wild card slot, but let's see how the future will be.  

I don't know how many upsets you can hope for though some are possible. The Yankees are surely vulnerable and the Guardians have been doing great of late.  A final wild card team winning a best of three is quite possible. You would think the Astros and Dodgers are generally favored though you can't count out the Braves and maybe the Cardinals or some upset.  

For now, it's the Mets playing at most three at home versus the Padres, who are no pushover.  And, you cannot even watch them on SNY/Channel 11. I think it would be a good idea for the playoffs to have some guy recently connected to the team in a three person booth.  Blevins would have been a nice choice.  I assume they will have such people in the studio in some form.  But, in the booth (you can put a person from each team in, rotation-wise) would be a way to get a team specific flavor. 

I think the Mets should be able to win the series. The lost of the division makes it harder -- we aren't like Seattle where just getting here is fantastic. Some fans cite that, but after being in the lead for all season, that is sort of lame.  But, hey, fan as you wish.  And, hope some of the crew that got us here have some magic, including a few newer people who did not quite show up yet in big situations.  LFGM! 

John Henry Ramirez Execution

John Henry Ramirez was driving while drunk and high with two women. He was looking for someone to rob. He found someone (who turned out to be a father of nine) and stabbed him 29 times.

Prosecutors said he got $1.25. Ramirez fled to Mexico, started a family, but was caught and prosecuted three years later. A little over a decade later, sill under 40, Texas was going to execute him.  The cruelty of the murder mixed with him fleeing makes it understandable Ramirez was sentenced to die. He admitted he did it. He seems as far as it goes ready to die.

Local article: "Ramirez, who was 20 at the time of the murder and a former Marine, had no prior criminal record when he encountered 46-year-old Pablo Castro after a three-day drug binge."  You can say he should not be executed for one horrible act.  There is some argument that 21 at least should be the cut-off. So, yes, even without knowing more, there are arguments to be made even here.

On principle, this is one of the death sentences that are harder to oppose, except well, on principle.  Guilt is not at issue. It was a cruel murder. He fled and staid away for three years.  He was in his 20s.  It is one murder, but there are aggravating aspects.  I'm sure there was at least some mitigating things cited.  But, it's basically a matter of the system as a whole being problematic. Also, unlike Alabama, Texas seems to know how to execute people without botching it regularly.  

Ramirez wanted a minister to be allowed to vocally pray and touch him while dying. The Supreme Court, applying a federal law protecting religious exercise in prison, granted it to him 8-1.  I was not sure about the touching part, but as a whole, this is a sound result if possible.  If someone wants a specific religious accommodation for a key event with special religious connotations (including life and death), try to grant it. 

The district attorney of Nueces County, Mark Gonzalez, filed a motion withdrawing his office’s request for a death warrant, citing his “firm belief that the death penalty is unethical.”  The judge determined this was not possible; not in the court's power to do.  The request was final.  

I don't know the procedural rules there, but I can understand that result. It would be more problematic if an elected local prosecutor was not able to not seek a death sentence at the trial.  Checking, the submission by the office apparently was a mistake. That might be more iffy. 

===

There was no last minute appeals. Well, at least, we avoided the gruesome execution day appeals watch.  A long shot attempt to get clemency failed.  And, ultimately, Ramirez was executed.  The immediate coverage does not suggest any issues.  Third from Texas, 11th in U.S., with another execution [Oklahoma] scheduled later this month.

ETA: I saw one person on Twitter noting that Ramirez "just wanted to live and convert people in prison" and that is a way to go.  

There is a fiction book about a "lesson before dying," where someone is executed by the state, but first gets some his manhood. People have found some peace in prison. Ideally, prison (or a hospital for those civilly committed) should include some redemption. The idea that an eventual execution (or life in prison) provides no chance of rehabilitation is wrong. 

Over a million people died from COVID related illness. On some level, eleven people being executed is really trivial.  There is a much bigger picture here. As I have noted before, if prison is worse than death, why should a few get an "out" while most languish there?   What ultimately happened here is that one of many who caused public harm was executed. 

Again, I don't see that as good public policy, and the state executing people will remain for me something notable. I'm sure there are a lot of other stories to be told, but a small number of executions provide a way to focus on a few that get attention. 

Game 161: Mets are Wild Cards

The Mets were 9-7 versus the Braves and had to win one to win the season series. They were swept and the starters and hitters didn't look good at all doing it. They then had a rainout while the Braves lost. Mets won the first game of the DH and went up 7-0 while the Braves was in a close 2-1 game. Marlins loaded bases in the 8th and had some guy named "Jesus" up. They pinch-hit hit and clearly that was a sign. Braves win division.

The Mets clearly had a great season in a variety of ways and things will look better if they get past the first round. But, this was a choke job. It was. Some rather not think of it that way. I do. Mets had first place nearly all the way and collapsed in sight of the finish line. Now, they have an extra round and are one of three wild cards. Losers today. Moving on.

SCOTUS Watch: New Term Begins

There used to be February and August terms. "Congress moved the Court term’s start date from the second Monday in October to the current first Monday."  This means the "2022 term" started today.  First Monday In October was a play (and then okay movie) that foreshadowed the first appointment of a women.  White males are now a minority of the Court. Clearly, it is time to end affirmative action as we know it!

It took a little while (though it was up by around 10 A.M.) for the website to set up the link to the morning orders, needing to set up a new "2022" link.  The order list was a sort of "clean-up" list (nearly 50 pages long) and they have a set of new cases. Most aren't too exciting. They did take a possibly important case about regulating the Internet (Section 230).

[ETA: Here is a "view in" with a comment that the old term officially ended technically this morning.]

A SCOTUSBlog analysis that argues Thomas is the de facto chief, including talking about his national influence such as how many clerks are in important places of power (both locally and on the federal bench). Also, nice memorial for retiring court artist (Art Lien).  Also, lately it seemed to get the morning round-up out a bit earlier, after it often taking a bit too long.

The first argument involved the reach of federal power over wetlands, which has been one area conservatives have used to target federal regulatory power.  Justice Jackson got into the questioning early on.  The argument was scheduled to be an hour.  The challenger had that long.  It went more like 1:40.  

A HEY YOU to C-SPAN here. Brian Lamb was long pushing them to allow  video.  We now have audio.  But, for whatever reason, C-SPAN -- even on the first day of the term/new justice -- doesn't feel it is important enough to air it live on C-SPAN television.  You can check online for it.  On television, they didn't even have a congressional session at 10 A.M. They even aired a (not live) SCOTUS panel.  If the Supreme Court coverage is so important, why not air it? Many are not aware of the website content or might not have access.  Television (with photos to deal with lack of video and maybe a segment before/after) is useful here. FAIL.

Tough questioning for the anti-EPA side but largely from the liberals with the conservatives pushing back seemingly in a more gentle way.  Long term observer suggests SCOTUS might be looking for larger game here.  This bunch likes to ask questions. Arguments often go long. With less cases, they surely have more time for that sort of thing.  

The next case was more dull, but Justice Jackson asked a question early on as well. She had a nice sounding voice. Gorsuch sounds smarmy.  Kavanaugh sounds like a dick.  Alito sounds cranky.  Barrett aims for reasonable.  Kagan is your opinionated friend, who is somewhat nicer about it (at times).  She can bring the snark.  Sotomayor doesn't  tone that down.  Thomas is now rather chatty.  Roberts is your reasonable dad though at times he will get somewhat miffed or doubting sounding.  

To toss it out there, Roberts got a new assistant.   Tomorrow will have another big oral argument about racial redistricting matters.  Prof. Steve Vladeck (Shadow Docket guy/Mets fan living in Texas) noted how lower court districting cases could turn the 2022 elections.  Litigation already affected New York state races pursuant to state court action. 

Sports Update

Today is the end of the 2021 Supreme Court term, the new term starting the first Monday in October. It also has a few notable sports moments. 

The NFL is back in London (or as Joey said when he found out about Monica/Chandler -- IN LONDON!), so everyone can have some Sunday Morning Football. It's Vikings vs. Saints with Andy Dalton (who just seems to have been forever -- he is only in his mid-30s) filling in for the Saints.  And, it turned out to be a decent game, with an exciting back/forth finish.

As you know, long term QB what's his name is now doing stupid sports betting app commercials, his announcer gig not working out.  Jerry Blevins did do great filling in for Keith Hernandez, who is out with an injury. I'm not sure how excited the Brits are about American football, but hey, why not?  I remember back in the day when baseball was in Japan.  Let's have more of that.  Toss in Africa.  Baseball in Latin America would be logical with all the players come from there.  

Mark Sanchez (ah when the Jets was still relevant) was one of the announcers. The Giants under new head coaching started on a nice foot with them going for two late and hanging on (the other team had time to drive to a quite make-able FG) to win. They then was 2-0, but came back to earth versus the Eagles (back-up QB doing well).  This week it was the Bears, which some was hoping would be 4-0 territory before last weekend.

[3-1 is still very good given their recent seasons.]

The Jets had to deal with a back-up QB and would have had a worst time of it if they didn't have a remarkable comeback in Game 2 involving a late score, an onside kick, and another score.  Even then, they were maybe one good throw away from sweating it out with field goals made from real long distances these days.  A half-way good team will have a time to make you sweat even if they have less than thirty seconds these days.  

NY had a good day.  Bills looked bad early, but came back, leaving no time at the end for the Ravens (luckily they didn't muff the chip shot FG). The Giants were down to no QBs, both hurt and the one left setting up wildcats for the final minutes, helped by a muffed punt at the end.  The Jets came back from ten points down and had a win for Zach Wilson's return. 

Some fans are like "hey, they are in the playoffs, and that's great." This is sort of ridiculously low expectations.  They were divisional leaders nearly all season. Division wins aren't chopped liver, especially now that you get a bye.  The Padres are not a total gimmee and then you probably have to play the Dodgers and Braves.  I think division banner, Cards and Dodgers (again probably) with the aces lined up is a lot better.  

The Mets were one ahead coming into the final series versus the Braves. Win one and they would win the season series and a tiebreaker (Mets end with the Nats and the Braves with the Marlins).  They had their three studs lined up to pitch.  deGrom and Scherzer lost and Bassitt was out before the end of the third.  Multiple moments when nobodies had key at bats.  And, other choke jobs.  Some idea a call-up would suddenly click did not work.  Mets had six innings to catch up and did NOTHING.

One insult to injury is that only one of the games was with the usual television announcers. I know this still opens up radio, but still much rather have Gary and Ron here.  FOX and ESPN are rather painful. Some other booths are okay and MLB Network can have some good games there.  But, FOX on Saturday is especially painful.  I did other stuff, including watching Trilogy of Terror.  A somewhat too on the nose title perhaps.

So, the fucking losers are now two games back with no tiebreaker. A pathetic showing this weekend. Totally pathetic.  It's probably home wild card series versus the Padres (if not, Phillies).  The only way to avoid that is for the Marlins to sweep the Braves and the Mets to sweep the Nats.  Good luck with that.

Meanwhile, Seattle got a wild card spot, the Orioles clinched an above .500 record after a simply horrible 2021 season, and the Brewers kept on blowing a chance to at least be even with the Phillies in the wild card by being beaten late by sucky teams. But, they aren't eliminated yet.

In "other playoff teams" action, Seattle is clearly someone to root for, including with Paul Sewald.  One potential exciting team are the Guardians, who also have some Mets presence.  The Blue Jays might show some life and you never can totally count out the Rays.  I really do not care much about the Padres and Phillies or the Brewers for that matter.  And, sure, you have some final hurrah moments for Cardinals.   

As to the Dodgers and Braves, well, I rather them somehow be upset.  On the other hand, if it is not the Mets, really it is not like I like the Cardinals too much better.  If much at all.  I guess my "give someone else a chance" rule would mean the Cardinals should sneak in above the other two. 

And, regarding the Yankees and Astros, again, same.  Let someone else in though the Astros probably are favored since at the end they even found a way to beat the Orioles.  For the games before, the last few will have some influence on positioning.  There is no away games in the first round. 

Karen Black x 3

Svengoolie has a special night with four hours of Sven action. The movie was at 7PM, then there was a special Svengoolie documentary, and then the Sventoonie segment was an hour (the fish from the MeTV toon lead-ins was given a little horror series of his own last season). A note: Svengoolie was better 10-midnight than 8-10 in my view. Better horror hours. But, you can always tape/DVR it, and watch it later.

The long block to introduce Halloween month started with the Karen Black t.v. movie classic, Trilogy of Terror. She plays in all three. The first is decent (and stars her second husband) and it turns out she is the true mastermind. The film ends with a young familiar face. The second is a bit obvious though again two familiar faces, one hardly recognized. The last is the famous possessed doll, which is rather good. Net: above average.

Courtroom Invocations Did Not Violate Establishment Clause

Someone once asked me if I listened to podcasts. There are lots out there. I do listen to a few such as Gay USA, Strict Scrutiny, and Freedom From Religion Foundation offerings.  FFRF also has television programs, which are available on their website as well as 10 A.M. on Sunday (Channel 11) at the moment.  The new season recently began. 

I have noted in the past that my concern is freethinking though long thought that government mixture of church and state was a bad idea. I was somewhat more sympathetic to equal access displays in recent years.  I still find "under God" in the Pledge of Allegiance and the like problematic.

What about invocations before public meetings?  I find them problematic though am willing to put them in perspective. Having a chaplain (usually Christian) open the House or Senate day each day is mixing church and state.  Marsh v. Chambers upheld the practice (including having a long term official chaplain who was one denomination). Town of Galloway v. Greece upheld the idea, now applied to a town meeting, resisting a more limited challenge that not enough was done to make it non-sectarian.

Some places, and FFRF had someone who did them (one place decided to stop all invocations to avoid needing to invite them) on last weekend, sometimes have secular invocations.  These aren't too hard.  Just have the usual welcoming comments and remove the reference to "God" or the like.  One approach used is a moment of silence, including at the beginning of the school day.  If you want to silently pray, do so.  It's your choice.

The most recent battle upheld the use of an invocation of a justice of the peace in Texas.  The district court judge (Reagan nominee) decided the other way and the court of appeals was 2-1.  The district judge and dissent in part noted that Alito in Greece noted that case was not judicial and Alito even ridiculed the dissent for the specter of some judge having an invocation with the parties coerced into staying.    

The justice of the peace, this detail is noted in the majority opinion, ran for office in part in support of a chaplaincy office.  Some family did not have one available when he was performing coroner duties. The suit, however, was not a chaplain service to have people available in such situations. It is about the use of a chaplain to open a judicial setting. 

As the two opinions against the practice note, unlike legislative invocations, this would not even meet the historical practice test the Supreme Court seems to rely on these days.  This is not about a court crier saying "God Save This Honorable Court."  It is not one-off ceremonies opening court sessions for the term or whatever that might include a chaplain or invocation. It is a regular practice with real content, not just a line said by rote.*

As the lawyer noted, clients do not want their attorneys to be showy and make some sort of protest, stepping out of the court while invocations are performed. The invocations are particularly important to the justice of the peace given his election campaign and overall mindset.  Facts in the record.  An invocation at a legislative meeting might be said to be just for the legislators. Justice Kagan noted how Greece crossed the line here.  This case surely does as shown by Alito of all people noting adjudication is different.  Now, it is not.  

I saw a few people note how this is a form of "Christian nationalism." I am wary about using that term since it is a mindset that means more than wanting to start the day with an invocation that is likely most of the time going to be Christian.  The opinion staying the lower court judgment spoke of it as "a brief invocation or words of encouragement," which is misleading too.  It is a religious ceremonial event.

The use of these ceremonies and mixing church and state very well can be used in the promotion of Christian nationalism. "Under God" was added to the Pledge of Allegiance in the 1950s to make sure people knew we weren't a bunch of foreign atheistic communists.  This is not the blatant type that was involved on January Sixth or support serious limits on freedom in the promotion of religious beliefs.  It can add up.

Those who support these ceremonial events are motivated in various ways, however, and unconstitutional (or even bad policy) crossing of the church and state line come in various degrees.  That is all that need to be said here. A governmental agent should not start -- even if they generous make clear that "you really don't have to stay" -- with a religious event.  And, this ruling expands on an already bad policy into new areas.

This is not a disrespect to this specific person. Again, it is not even against the chaplaincy program as a whole to have them available if someone wants one in various contexts involving government activities.  So, you might have a chaplain in prison.  Or, when a police interviews you after a crime or to help deal with an old, perhaps mentally confused person.  That is an individual matter, not a government ceremony involving the public.

The person here thought it appropriate to use his government position to spread his own religious beliefs  with dissenters just people that are generously given exemptions. That is not really how it should work, but too often courts these days have a selective view of "free exercise." 

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* I don't totally handwave that sort of thing, but there are degrees.  One thing that some people can understand the criticism more in references to gods on money.  Not only does everyone have to use the stuff, but they might be a bit uncomfortable about the mixture of god and mammon.