A few more thoughts on the previous subject ...

Liberal originalists

I referenced in my last entry the idea a decent amount of people think the courts will save us and similar alleged wish casting. I noted that I think that is largely a strawman. 

One liberal law professor who harps on his belief that insurrection litigation is bad overall and a bad strategy for Democrats specifically cites this old post. The reference to "enthusiastic liberals" aside, the strongest backers here have often been conservatives. The hopeful Gerard Magliocca cited in the piece, for instance, is a conservative.  

Sensible liberals do not think like "Fox Mulder" that belief in history will set us free. History, however, is part of the story. Likewise, we are stuck with it to the degree that the current Supreme Court relies so much on "history and tradition."

The path to take here is not to simply cite the history behind a constitutional provision as if this will magically supply the answer. The history is mixed, in flux, and precedent et. al. also matters when deciding the law. 

But, it's part of the story. The opinions yesterday barely cite it in fragmentary ways. The briefing and more provide a lot of fodder to provide a more complete account. And, that is just about the infamous "Griffin's Case."  

Enforcement 

Prof. Dorf is (as usual) a good place to go to get a sane response to the ruling. As he notes, confirming my take, the Fourteenth Amendment as a whole does not just limit the states. And, unlike the Strict Scrutiny Podcast (Melissa Murray, e.g., in a tweet basically blandly said the liberals didn't want to go there), he criticized the liberals. 

The liberals didn't want to "nullify" the amendment, but their reasoning blocking a major way it can be enforced is weak. The rather brief opinion is also vague about how they would leave open enforcement. Consider this statement:

It forecloses judicial enforcement of that provision, such as might occur when a party is prosecuted by an insurrectionist and raises a defense on that score.

When would this arise? In context, it would apply to a federal prosecutor, since the per curiam leaves open exclusion of state officials. Is this a reference to Griffin's Case itself, which involved a judge alleged to be disqualified?  

It does underline that this case is not just about Trump. The ban on "offices" can apply to many people. 

A final thing is that there is a lot of confusion about how the fifth section of the Fourteenth Amendment enforces the amendment. An enforcement clause is in multiple amendments, including the ban on slavery. The case is about "section three."  What about section one? Does birthright citizenship only count with federal enforcement? 

The average person doesn't closely read the Constitution. This case and the overall debate over can be a learning opportunity. Ditto the idea the alternative will be a mess of patchwork laws. That is the case now! Do they want to change that? Great! 

Strong "Dissent"

The liberals appear to me (as Strict Scrutiny Podcast agrees) to dissent while framing it as a concurrence. Sotomayor particularly might be happy to have a way to be mad while going along with the (bad) bottom-line result. It taints the majority. 

As noted, Mark Joseph Stern appears to have found it once was a partial dissent. We won't know why the word "dissent" was removed. It's like agreeing a girl cannot go to the movies, not because the movie is non-Christian, but because she's sick. You concur with the result. 

I think concurrence in judgment is an accurate take of the result as written. It agrees with the result while disagreeing with the reasoning. Did the per curiam originally say something more? If not, how would this be a dissent at all?

No Syllabus 

Another thing that some might miss, but people who are concerned about details would find notable, is the lack of a syllabus. Opinions, including per curiams, have summaries at the top that are supplied by the reporter. This was the case with Bush v. Gore and per curiams last term. 

Was the Supreme Court so much in a rush -- as shown by the Sunday announcement -- that there was not enough time for the final opinion to have a syllabus? Will one be added? 

It isn't binding law any more than opinion announcements, which were not present here either. But, it's helpful. 

[ETA: Steve Vladeck notes on Twitter that it is normal for the syllabus to be added later for per curiams. He is not clear why.]

Final Thoughts (Maybe, For Now) 

I think it appropriate to ban people who were involved in an insurrection or rebellion from public office. This is especially true if there is a way to remove the disability as time passes or if they show some degree of rehabilitation or regret. 

The lawsuit and discussion provide continuing sunlight into these things. Likewise, they help us understand big questions like the role of history, the courts, and the political branches. We see how the Supreme Court can be hypocritical and so on. We are allowed to call them on it, even if the results are predictable. Thomas being involved is wrong.

I don't think as one person claimed this whole thing was a "fiasco." The whole thing is a sideshow. It is more important, for instance, that the Supreme Court is slow-walking the immunity case. It is still possible that behind the scenes, the two cases were somehow connected.  

For now, we can move on, including to Super Tuesday, budget items, and the State of the Union. And, we have a Trump criminal trial at the end of the month. As of now.

SCOTUS Watch: Insurrection Enabling Edition

Orders   

As expected, the Order List was no drama. Gorsuch recused without saying why. Only Kagan and Jackson explain themselves. I'm unsure of the last time Sotomayor had an opportunity. Maybe, she will follow their lead. 

Thomas (with Alito) dissented regarding a college speech dispute which the justices determined moot. Jackson (following a policy she flagged earlier) dissented from the procedural approach used. Amy Howe has more. 

A lot is going on this week (Nikki Haley winning yesterday's D.C. primary fits the busy week in D.C.). This is true in a fashion in the lower courts. Two major ongoing matters are trans-related lower court opinions and the Fifth Circuit making a mess of things. 

The other orders dealt with the Fifth Circuit.  The Fifth Circuit let a Texas law come into effect (which it will soon if not stopped) involving Texas pretending it can run national border policy. Justice Alito held things up temporarily by granting an administrative stay. He will look it over. 

Trump v. Anderson 

The Supreme Court is out for a mini-break until next week (3/15). On Sunday, it suddenly noted there was possibly going to be an opinion today.  This is usually done on the Friday before at the latest.  Likewise, the justices (at least since they started to do so after the COVID break) nearly always (don't know the last time they did not, putting aside the COVID period) announce from the bench. They specifically said they would not.  

People were correct to predict the case was going to be the Colorado insurrection case that kept Trump off the ballot. Two other states were in the process of following.  The Colorado primary is tomorrow though the results are not final and voting has already begun. The justices were around last week so could have announced it in person.

The oral argument alone reaffirmed the assumption that there was no chance the justices were going to uphold the Colorado Supreme Court. In passing, I think the main advocate defending the ruling was not firm enough. He had a hopeless case, to be blunt, so you had to let it all out. Did not.

The question was how and how many. The main opinion (an unsigned per curiam) basically was a combination of the two likely arguments. A specific state could not on its own keep a president (they stretched it to federal officials generally) off the ballot. That alternative is a mess. That was up to Congress. And, they had to specifically enforce it. That's the no self-executing argument. 

Barrett would have simply said the states could not enforce the third section of the Fourteenth Amendment against presidential candidates. She would say no more. So, nothing about other candidates (consider state legislatures used to select senators) or how the federal government should enforce. 

The liberals/Democratic appointees (some court watchers want us to emphasize this) went further. They accepted that states could not enforce it regarding presidents. They also appealed to federalism and the mess of different states on their own doing this.  That's dubious.

The Reconstruction Amendments “were specifically designed as an expansion of federal power and an intrusion on state sovereignty.” [citation] Section 3 marked the first time the Constitution placed substantive limits on a State’s authority to choose its own officials. Given that context, it would defy logic for Section 3 to give States new powers to determine who may hold the Presidency. 

The Reconstruction Amendments are implied to be merely about limits on states. They are not.  

Slavery is banned everywhere, including the federal territories. Federal offices are involved (look at this very case!) in the Insurrection Clause. 

The opening grants birthright citizenship to a certain group of people. That limits federal power too, particularly over blacks who are now birthright citizens with national rights against all.  

There are really no "new" powers here. States have broad powers to run presidential elections. This very well -- a bugbear of the justices here -- can significantly influence the results. For instance, the ability of a third-party candidate in a closely divided swing state to be on the ballot. Bush v. Gore, anyone? Ballot design and counting techniques also can be essential. 

I would suppose a state can still keep a thirty-four-year-old or someone who doesn't meet residency or citizenship requirements off the ballot. The 14th Amendment provides one more requirement. 

[ETA: The "substantive limits on a State’s authority to choose its own officials" bit is also questionable. Could states set up mini-kingdoms with governors passing along family lines? 

Sounds like a banned title of nobility. The guarantee of a republican form of government sets forth a basic limit on the states. Don't need to go back that far. Section One itself limits the state. Can states say only white people can be state officials? The opinions are pathetically weak on this point.]

It is not as the per curiam notes a "penalty" either. 

The joint concurrence (usually court opinions have one author) notes this concerning presidential electors. Does the opinion in this case reduce this power? After all, before a state legislature could assign electors based on whether the candidate was an insurrectionist. The system in place furthers a decentralized process of presidential selection.  

I said it was a joint concurrence. Mark Joseph Stern by a bit of nifty detective work found evidence it was originally a partial dissent by Sotomayor alone. 

We are left to guess what changed. The tone often does sound like Sotomayor. Barrett criticized it for being "strident."  The fact it was not a dissent at all gave cover ala Bush v. Gore ("7-2") that "nine" agreed with the result. Did the liberals get anything for that? [ETA: if so, was it worth it?]

The concurrence is a tad "strident" about the controlling opinion requiring specific congressional enforcement mechanisms to enforce the amendment provision. The anger is shown by references to Dobbs (abortion) and Bush v. Gore. Roberts' criticism in Dobbs for the conservatives there going further than necessary is cited. This would be even more harsh if Roberts was the actual author of the per curiam. 

The concurrence reminds us that other Reconstruction Amendments, including the rest of the Fourteenth Amendment, are self-executing. 

The majority's "rules" are not totally clear (the whole opinion is only 13 pages). Is a law banning those convicted of insurrection from federal office (cited by the per curiam) even enough? It was passed six years before the amendment was ratified and does not follow the same rules (no previous oath required).*  

They wanted to ensure that those who had participated in that insurrection, and in possible future insurrections, could not return to prominent roles. Today, the majority goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President.

The main opinion flags how the provision arose from the Civil War context. So, it is appreciated that "further insurrections" is referenced here. 

We are left to wonder why therefore states cannot enforce it like they could enforce the ban on slavery or even this very provision as applied to state officials. Some vague (and selectively applied) federalism or prudential concerns. 

The main opinion says:

States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency.

So, do states have the power to enforce Section 3 respecting state officers? I thought it was so shocking to argue that the Fourteenth Amendment "expanded state power"! Oh. They say states have power over their own government. 

I move past the fact that Justice Thomas (who shouldn't be taking part here given the role of his wife in the events) in an earlier case cited (U.S. Term Limits) dissented, and strongly argued state power here included setting qualifications in federal elections. States very well have the power to regulate federal elections in various respects. And they do so. The ongoing federal caucus and primary process underlines this.  

The main opinion cites the congressional power to lift the disqualification by a supermajority vote. That power applies to both state and federal offices. The opinion grants states can disqualify state officials. 

By doing so, they make it harder for Congress to pinpoint lifting disqualification (let's say only after a person is elected, making it more necessary to do so). Why is it "implausible" that states can do that as compared to not allowing federal candidates (like a person too young, as Judge Gorsuch agreed to in a past case) to run for office? 

Anyway, we are left wondering why Chief Justice Roberts went this route when the result was a divisive 5-4 split. It doesn't help that people can point to them not even showing up to announce. 

The opinion does not even settle all disputes. By giving Congress the power to enforce, pathways are left for challenges after the election. I question the "if Trump wins" scenarios. But, to the extent this might come back, the path is of limited value. 

The opinion also seems to leave open the ability of each House of Congress to not seat someone they determine is disqualified. Since no Democrat even raised the point at the beginning of this Congress -- even though multiple Democrats suggested one or more members were very well disqualified -- this seems a tad academic. 

I do appreciate the opportunity for the liberals not to just go along. I dissent from the fact there was not a clear dissent. This is also not about me "wishcasting" that the Supreme Court will "save us." It is how blatant the whole thing is.

The Trump immunity case underlines the point. The Court is making it harder for the criminal process to occur. Normal elections factor in the fact that a candidate is a felon. For Trump, special rules are in place to help him along. 

The main opinion here went further than necessary to reach its result. Small favor that a route is left open to broadly allow disqualification of state officials. OTOH, it's harder to block insurrectionists from federal office. This applies to any number of unelected offices that some future Administration might provide to the "martyrs" involved here.  

The opinion is also hypocritical given this Court's general wariness of congressional enforcement of these amendments. State's rights were quite important in Shelby County v. Holder, even if the enforcement of the Fifteenth Amendment was involved. "What did you expect, they would keep Trump off the ballot?" doesn't swipe all of this away.

I know that we have to worry about beating Trump and company at the polls. The opinion is still bad. And, I was around during Bush v. Gore. The Supreme Court was quite selective about worrying about state procedures that might affect presidential elections. 

Last week, the Supreme Court without comment rejected multiple challenges to an execution. There is as much of a federal constitutional interest in due process for all that the federal courts are specifically there to protect (insulated by de facto life tenure) as Congress has here. 

Idaho then botched the execution. The Supreme Court didn't do its job that well this morning either.  

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* A few people are annoyed that Jack Smith did not charge Trump with violating this law. I am left to believe that he did so because it might be hard to obtain a unanimous criminal conviction under it beyond a reasonable doubt.  

Section Three is not a "penalty." It does not require a criminal conviction to be enforced. The indictment alleges facts that overlap what has historically been understood to be insurrection activities. 

Anyway, the Supreme Court is slow-walking the Trump criminal case. If we finally get a conviction, he will then appeal. Merrick Garland could have sped things up over a year and the whole process could have taken years. 

The Supreme Court did not even firmly decide that the president is a "federal official" under the terms of the amendment. I think they obviously are but then I find the reasoning of the opinions here asinine. Would an insurrection prosecution be enough?

I think this whole thing is a sideshow. 

28A aka A Real Right To Vote

Rick Hasen has a new book (A Real Right To Vote) promoting a voting rights amendment. He provides various options. A basic one would leave in place current felon bans, not address territories, leave in place the Electoral College (with a clear popular vote), and not change the Senate. Other possible tweaks address those things. Territories concern me these days. 

The basic amendment also shows that the best approach would provide something for different groups. The amendment still provides the states a major role, not making voting by mandatory rule a matter for a federal bureaucracy. Some liberals (I saw this on a certain blog) think any individualized local rules are problematic. I find this overblown.

States would have the option to delegate the burden of automatic voter registration and identification (including a unique voter classification number). He argues some aspects of it promote a more efficient and less problematic voting system. Various interest groups would be satisfied by different aspects of the proposal.

The amendment would strongly protect both voting and voting access. Likewise, it would emphasize congressional discretion, an answer to recent conservative cases like Shelby v. Holder. The book notes that the Supreme Court over the years interpreted possible voting rights protections narrowly. The amendment tries to clearly state limits, reflecting modern constitutional protections (in doubt now) that explicitly protect voting rights.

I support the general move here. Again, I think we should address loopholes such as millions in Puerto Rico, who are U.S. citizens, being denied the right to vote for POTUS.

People who served their time (calling them "felons" is an unfair mark of Cain) should have the right to vote. I would understand if that was left off. Likewise, we should change the Senate, but it can be a separate battle. Giving Congress more discretion and other voter equality rules would probably help voters caught in the criminal justice system vortex.

Finally, removing the natural-born citizenship rule for presidents should be mixed in. It is popular. It is voting rights adjacent.

I think -- I had an extended dispute with someone online about this -- that the Constitution does protect the right to vote in various ways. My opening argument is that the Guarantee Clause says the United States "shall" guarantee a republican form of government. A republic involves the people voting for their leaders. Some significant subset should have the right to vote. This provides a floor, even if the states have wide discretion to regulate voting.

The Constitution (the second time saying "elected by the People") provides for popular election of Congress based on the qualifications in the most populous branch of individual state legislatures. Each state except for Nebraska has two branches of the legislature.

No state ever chose such legislators by a method other than some form of popular election. The Guarantee Clause reflects the basic principles of our government (see Declaration of Independence) that demand a right to vote.

As a 19th-century case says, suffrage is a "fundamental political right, because preservative of all rights." The Supreme Court said it is a "fundamental right.” Equal protection principles hold that fundamental rights must be carefully handled.

States in a democracy (even an imperfect one like ours) will provide voting rights to some people. Once they do so, the fundamental right to vote has to be equally applied. Limits are acceptable. Free speech is not absolute. Nonetheless, like all rights, the limits have to be narrowly tailored, respecting the importance of the protections involved.

The 24th Amendment only bans poll taxes for federal elections. Nonetheless, a 1960s case soon applied the rule to state elections. The case was part of a trend broadly promoting a "one person, one vote" principle. The Supreme Court held:

Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax.

This general principle applies to various voting regulations having an economic discriminatory intent and effect. The Supreme Court applied the principle to the right to a lawyer if you are accused of a crime and the right to travel. The principle lost popularity at the Supreme Court, including respecting public schools and the right to choose an abortion (when that was still around).

The Constitution alone is not to blame for the narrow application any more than a lower court upholding an exception to a mail-in voting ban only application to senior citizens is correct under the Twenty-Sixth Amendment.* Nonetheless, the current text makes it easier for people and institutions to threaten voting rights. The possibility of impeachment and removal likewise is not much of a check, even if it seems quite appropriate.

The 1960s case alluded to but did not rest on First Amendment arguments. Nonetheless, as this article notes, a myriad of cases spoke of voting as a form of expression. We regularly say a vote provides a way to "have our say" or give certain groups a "voice." And similar language.

The vote gave people the right to provide their input, especially if it was a referendum. Political parties appeal to a right to association. Campaign finance rules are limited to stop violations of political speech. This is also a form of petition to the government. Rick Hasen also argues that multiple voting limits are intended to target certain groups because the government does not like their views. It is a blatant First Amendment issue.

The Supreme Court also rejected an argument that national citizenship gave women the right to vote. The Fourteenth Amendment protects the privileges and immunities of citizenship. A few people in Congress were sympathetic to the women’s suffrage argument.

A lower court opinion that had a great influence in the crafting of the language of the Fourteenth Amendment listed among privileges was "the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised." And, the right to vote is a basic part of citizenship. Noncitizens have many rights. One right they do not have is the right to vote.

It is okay to provide the right to vote in some ways to noncitizens. New York City passed a law allowing noncitizens to vote in local elections. The law is on appeal. An intermediate court recently declared it was unconstitutional under the state constitution. It is wrong from what I can tell from the language involved.

One logical place to allow noncitizens, at least here for an extended period, is for parents of students in school elections. Traditionally, many places allowed immigrants on their way to citizenship the right to vote. It became less of a thing in the early 20th Century. Now a few places allow it. An immigrant-friendly place like New York City rightly allows it today.

Voting is treated as a fundamental right for purposes of due process ("liberty") and equal protection. We can go a step further and argue it is a right/liberty overall. We can toss in the Ninth Amendment as a source of said right. The Tenth Amendment also references the powers of the people, which could include some power to vote for certain things.

The dissent in an opinion summarily upheld by the Supreme Court made an interesting argument that D.C. should have a right to representation in the House. Sen. Orin Hatch (R) supported that as part of a failed bill that would have given his state another representative. I was iffy about the constitutionality of that. I am more open to it these days.

These are a mix of arguments that might seem "out there," but at least some of them have some force. The Guarantee Clause can help Congress to offer justification for federal voting laws. There are other congressional powers to regulate the "time, place, and manner" of congressional elections. A more explicit limit is multiple barriers to different forms of discrimination in amendments where the "right to vote" is expressed in various ways.

The phrasing suggests there is a right present. The amendments (with congressional enforcement powers, including the 14A, sec. 2 penalty to reduce state House delegations by the percentage of people burdened) provide a floor to state suffrage rules. Maybe, some day it will be enforced. "The right of citizens of the United States to vote shall not be denied or abridged" [for various reasons] seems to me to mean the right exists.

Are we to assume there is a possibility a state in 1870 (when the 15th Amendment was ratified) would deign to not allow individuals any right to vote? No way. That would be ridiculous where "the consent of the governed" is a fundamental principle. The right to vote is assumed. The question is how broadly it would be applied.

Over time, such principles are not "subject to continuous revision [by amendment] with the changing course of events, but as the revelation of the great purposes which were intended to be achieved by the Constitution as a continuing instrument of government."

We have felt a need to use amendments to bit by bit protect voting rights unlike many other rights, including freedom of speech or many others. This is a depressing state of affairs. One amendment only dealt with federal poll taxes. A court decision quickly seemed to make the whole thing redundant by saying all poll taxes to vote unconstitutional. But, this was during the liberal Warren Court years, and it was still 6-3.

Other than voting, the Equal Rights Amendment has been the main exception to the opposition to piecemeal protection of basic constitutional rights. We have an equal rights provision (applied to the federal government by the Due Process Clause) that applies to everyone.

I respect the argument for the ERA. I am wary about piecemeal protection of equality as compared to a basic principle even here. It would be depressing if we needed six or so amendments to protect various forms of equal protection. How about an amendment just covering a small part of it and only for the federal government?!

A Voting Rights Amendment is appropriate. There is a constitutional right to vote in various respects. But, it is expressed in a convoluted way, broken apart into segments. We need a firm expression of the right to vote. The details can be debated. The fundamental principles are much more essential. Rick Hasen’s text is a good starting point.

Rick Hasen grants this can be a long haul. It took fifty years after the 15th Amendment (race) to protect women. I was thinking about same-sex marriage in the 1990s before the Supreme Court protected it in 2015. False starts occurred in the past, including attempting to do away with the Electoral College or firmly giving rights to D.C. residents. The last real amendment was ratified over fifty years ago. It's time for change.

Rick Hasen argues that even as we await ratification, the effort can provide pressure for change. Let's begin!**

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* The book references various other examples. Laws that "abridge" trans people's rights to vote are a form of sex discrimination. 

For instance, laws that make it hard for people who underwent transition to change identification. The amendment's permanent voting identification number (not a picture ID) would help.

** His proposed "basic" amendment has six components:

• A positive/affirmative right to vote including for POTUS
• Equal weighing of votes (one person, one vote)
• Automatic Voter Registration and Unique Voter Identification Numbers (States can delegate to federal agency)
• Assuring equal voting opportunities and limiting burdens on voting rights  (high test to rules that burden/voter right to federal lawsuit)
• Constitutionalizing Protection of Minority Voting Rights (race/ethnicity/language minority) (no proof of discriminatory intent/disparate impact presumption of fault)
• Congress's Broad Enforcement Powers 

Other possible additions: Felony Disenfranchisement, Territorial Votes for POTUS (possible piggyback with 23A), Elimination of the Electoral College, and a Senate One Person, One Vote Rule (two senator minimum).  

The last chapter discusses how the amendment can have bipartisan support, including how it matches populist Republican messaging. Hasen supports federal voting administration but sees it as a nonstarter, so left in broad state decentralization.  

Territories do not simply lean Democrat.  The only sizable territory population-wise is Puerto Rico. It has a strong Republican presence.  D.C. does lean strongly Democratic but is a separate constitutional issue.  The 23rd Amendment also (imperfectly) gives them the bare minimum.

It is a fundamental popular sovereignty principle to allow territorial American citizens to vote for their leaders. I think we should include D.C. and Puerto Rican representation in the House. But, the bare minimum -- and this shouldn't be too controversial -- is they have the right to vote for POTUS.

(The other territories have much smaller populations, a fraction of even thinly populated states like Wyoming. This is true even if you combine the population. So, a voting representative is more dubious. But, they should be allowed to vote for POTUS. Local self-rule would also be proper.) 

Hasen also notes that the elimination of the Electoral College will be a big way to reduce the voting wars. The margin of victory will be too large, for instance, to make it worth the effort. But, the problem there is the inability to obtain supermajority support. Nonetheless, along with Senate reform, the stakes are very high.  

How RFK Jr. Hiring a Bird Smuggler Threw His Environmental Group Into Turmoil

We have not heard too much of late about independent candidate Robert Kennedy Jr. though he continues to be a possible wildcard in the presidential race. 

Washington Post returns to an old story whose core dispute was covered in the news at the time it happened (c. 2000). 

Kennedy in the early 1980s was a young man arrested for heroin possession:

In 1984, a judge sentenced Kennedy to two years’ probation. Abandoning his former career path as an assistant district attorney in Manhattan, he entered rehab and eventually began working on a former estate in the Hudson Valley to fulfill his community service requirement. There he encountered the Hudson River Fishermen’s Association, later renamed Riverkeeper, which was setting up its office in a farmhouse on the grounds.

Robert Boyle founded this group in 1966 to address pollution in the Hudson River. When Kennedy resigned around thirty years later, he said that he "co-founded" the group and it had “a budget of zero." The article challenges this account, noting:

By the time Kennedy arrived, the fishermen [working for the group] had notched impressive legal victories against corporations including Exxon and Con Edison and used settlement money to build a private patrol boat, Riverkeeper, in which Cronin cruised the Hudson seeking environmental scofflaws.

Kennedy's involvement in the group helped bring donations. It also helped him build a new career as an environmental activist. Others question the knowledge and ethics of the group under his watch. The article also points to a growing belief he was seen as a prima donna and a bit of an asshole. One example comes from the son who later broke with Kennedy so perhaps should be taken with a grain of salt.  

The founder of the group along with some others on the board resigned after a dispute when Kennedy hired a former friend (or however he wanted to label the relationship):

Wegner, then 49, had been released from federal prison just a few months earlier, after serving about 3½ years of a five-year sentence for tax fraud, perjury and conspiracy to violate wildlife protection laws. The charges all sprang from his roughly decade-long run as the alleged kingpin of a smuggling ring that trafficked in Australian cockatoos. 

An environmental criminal does sound like a bad look. The article also rejects Kennedy's spin that animals smuggled were unwanted "vermin" (really?) species. It does cite someone who liked both sides of the dispute noting that Wegner's actual service in the organization turned out to be fine.

(It's hard to think there was nothing bad you can say about it so I am left with a belief that not everything about that was covered.)

Shortly after the split in Riverkeeper, Kennedy moved on to his current most controversial position (other than Trump enabling):

Two years after the Riverkeeper split, Boyle left the Hudson Valley, moving upstate to Cooperstown. He was there in 2005 when Kennedy published an article falsely asserting that vaccines caused autism — after multiple corrections, it was eventually retracted by Rolling Stone and Salon — and in the ensuing years as Kennedy doubled down on the article’s debunked premise.

The article's overall premise is that various troubling aspects of Kennedy's personality are reflected in his relationship with this group. This includes personal aggrandizement, bad relationships with others, an iffy relationship with facts, and a questionable activist reputation. 

He had an environmentalism-related show on the old Air America. The idea is that he was okay until his anti-vax activism in recent years. First off, that has been going on for around twenty years. Second, there are some red flags besides that. 

The article is a good piece of investigative journalism. 

RIP Flaco: On a somewhat related subject, Flaco, the famous owl, died recently. 

He was 14 but only free from captivity for a little over a year. He died after hitting a building, with glass windows a menace for birds. Christian Cooper in his autobiography noted how ornithologists helped address a problem birds had with lights during ceremonial remembrances of 9/11. 

Tests are being done to determine if he was weakened by eating poisoned rats or something. His death does underline why people worried about him flying around the city though confining an owl in a city enclosure isn't great either. 

ETA: 

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Obscure Reference: Watching a Mets Classics, Keith Hernadez references a series involving a community whose name reminded him of something mentioned by Gary Cohen. 

He then says a person on it hosted Good Morning America. He made it sound like it was a notable series in the 1970s or 1980s. It was a short-lived series in the mid-1970s. 

Keith sometimes in passing references geographical or historical facts, something that interests him. But this was rather obscure.

New Map For NY

The New York Court of Appeals overturned an apportionment map for purposes of the state's House of Representatives delegation. The ruling was 4-3 with Gov. Hochul's appointment in the minority.  

Many liberals (though not liberal law professor Steve "Shadow Docket" Vladeck) were upset. They felt the map was a justified answer to other Republican gerrymanders. Few refuted the ruling on the law. 

We then had a special master of sorts drawing a new map, which favored the Republicans in various ways. The whole thing was last minute and rushed. The result for me personally was that I lost AOC (by less than a block). My new member is okay but is too pro-Israel and has done a few jerk things. I think it's a downgrade.  

I thought the original ruling on the merits probably was defensible (it was an invalid partisan gerrymander under state law) but the process afterward was problematic. Various parties, including the state legislature (at different points in the process), had a role in the whole thing. 

A few people blame the close 2022 takeover on the new map. I really doubt it. The midterms were going to be hardest in suburban swing districts in a state like New York, which didn't have abortion as a major concern. It would have been like filling an inside straight to pick up all the necessary seats.  The new map affecting 1-3 races seems more likely.  

Anyway, the court of appeals changed after the retirement of a conservative Chief Judge. After a moderate with some conservative leanings was rejected by the state senate, a liberal on the bench replaced her. Another reasonable option was chosen to fill the vacancy. 

She did not take part in the new challenge of the map. But, the result was a switch. A 4-3 ruling meant a new map. The legislature didn't like this one either. But, this time, they just tweaked it as compared to the much more blatant partisan gerrymander last time. Republicans do not plan to challenge it. The House Minority Leader (Jeffries) endorsed it.

Some critics are already saying the Democrats blew it. Who knows. I figure Democrats in the legislature are not idiots about these things. The old map was already overturned. Yes, we have a new court, but who knows if the result would be different if they blatantly did it again.

The new map might help one or more Democrats along the edges. Likewise, the 2024 elections should overall be better for the Democrats. They should not need a gerrymandered map to win it. Knock on wood.

==

I recently read a comment endorsing the book version of the classic Henry Fonda film, Mister Roberts. I reserved it but received the play.

The play (which Henry Fonda also starred in) is an enjoyable crisp version of the highlights of the film. I liked the film.

The link to the film can also take you to the book, which has various interesting aspects, including ironically the fates of both "Mister Roberts" and the book's author.  

SCOTUS Watch

Clarence Thomas

Clarence Thomas continues to be amid ethical violations. 

Justice Rehnquist (Roberts' old boss) did not participate in the Nixon tapes case because of his former involvement in the Administration. 

Why is Thomas continuing to participate in Trump 2020 election disputes in which Ginny Thomas (his wife and self-proclaimed best friend) had a public role? The appearance of impropriety is blatant.  Do they fear a 4-4 decision?

Meanwhile, there is the drama of appointing a former Ginny Thomas protege and Thomas houseguest, Crystal Clanton as a Thomas clerk.  Clanton was the second-in-command and field director of the hard-right youth group Turning Point USA. A group whose views alone make her a dubious option. But, the infamous "I hate black people" text* stands out.

There is a move by some (including this regular critic of SCOTUS ethics) to claim it was just a youthful indiscretion, maybe even a once-off. This is mixed in with allegations she didn't even actually do it. The people who did a deep dive (not half-assed ethical investigations) tell a different tale. Likewise, contra the first link, it is not like she repented her past actions. 

Thomas picking this person, a right-wing troll type, is far from surprising.  But, the full tale makes this a blatant case that sends a horrible signal. 

Remember when a line in a Sotomayor speech that some people inferred meant she thought Latinas were more able to interpret the law was harped upon?  Would a clerk who said "I hate white people" pass muster for many people? 

Thomas (and before him another controversial conservative Court of Appeals judge) are the ultimate people at fault here (to cite Prof. Eric Segall, who partially at Dorf at Law has been continually on this case for years) given their level of importance. The blame (aided and abetted by other defenders) includes the failure to in an above-board way admit what is going on. 

Ms. Clayton is obtaining a prime job, which will provide her with prime financial and professional rewards, under very questionable circumstances. It's a more blatant example of a wider problem with the people involved. 

Trump Immunity 

Jack Smith requested the Supreme Court to take up the question of Trump's immunity from criminal prosecution in the D.C. election case before Christmas. They denied it, letting the court of appeals hear the case.

The COA took until early this month, causing many people to be impatient, to decide the case. They unanimously addressed both the immunity argument and an even more dubious double jeopardy claim. The COA then set Lincoln's Birthday as the last day Trump could appeal it to SCOTUS before the ruling would go into effect.

Trump did so, Jack Smith replied, and then Trump's side answered. This was all done within the week. We then waited for a response. The assumption was that maybe there was a "trade" and the Court would deny a stay and the liberals would go along with the conservatives on the insurrection matter. 

Neither decision came down. Colorado has a primary on Tuesday though the results won't be final. 

The Supreme Court on Wednesday (after their "no comment" in what turned out to be a botched execution) granted the stay. The question:

Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office. 

One thing the justices did behind the scenes was craft this particular wording, which is not the same as what either side is asking them to address. 

What exactly this entails is unclear. I fear an opinion that even if it holds against Trump will further enable presidents to be above the law.  Similarly,  when they upheld the congressional power to obtain Trump's financial records, more hoops were inserted before that could be done.  

Also, if a new test is applied, it can further delay things as it is sent back to be applied, and that too will be appealed. 

They did not take the double jeopardy argument. Also, they will hold an oral argument on April 22nd (checks calendar).  

This furthers the concern here that -- regarding a patently bullshit argument -- they are helping Trump delay. They could have held it this month. The Court of Appeals decided things in early February. We then have to wait over two and half months after the ruling for merely an oral argument. 

It takes time to have a trial before the election. There is also a principle (which arose during the Bush Administration) that you should not have a trial close (maybe 60 days) before an election. Though a few people still cannot assume the worst, this move was more upsetting to others than many. 

Joan Biskupic on CNN said, "Former President Trump's effort to run the clock has a partner in the Supreme Court at this point." Biskupic is less likely to provide a passionate take leaning in an ideological direction. Her comment therefore reflects the bluntness found in the coverage.

The Manhattan criminal trial, where Trump waived an immunity defense (it also involved acts before he was in office), remains in place for the end of March.  For now, civil and criminal justice is best obtained here in New York.  

Media Advisory

The Supreme Court flagged two cases (social media and mifepristone) as set for special reserved seating for the press since there will be limited seats available.  

Orders 

There is an Order List on Monday. The orders are likely to be (like last time) of no significant consequence. 

The next official thing on the calendar is a March 15th Conference and non-argument public session (usually for swearing in attorneys).  

The Court now provides on its website calendar if opinions "might" be handed down. That day is not listed as such a day.  As usual, we might have unscheduled orders and other news. We have had some notable in the last few years. 

ETA: On Sunday -- which is weird -- we suddenly have a possible opinion on Monday. Which they won't show up to announce. Which is not normal these days either. Uh-huh. 

Mitch McConnell

Finally, we should note the announcement that Sen. Mitch McConnell (now in the Senate for 40 years!) will step down as Republican Leader. From holding up the Garland Seat to refusing to support the Trump impeachment (even as he said Trump was responsible), he was a poisonous influence. 

==

* The full text is:  “I HATE BLACK PEOPLE. Like fuck them all . . . I hate blacks. End of story.”

Death Penalty Watch

Ivan Cantu was sentenced to death for the 2000 murder of his cousin and his cousin’s fiancée, James Mosqueda and Amy Kitchen. 

Over twenty years, if not extremely as over forty of the second case, raises continual concern (cited by Breyer, Stevens, and Ginsburg) of extended delays between sentencing and execution. As Breyer once noted:

First, a lengthy delay in and of itself is especially cruel because it subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement. Second, lengthy delay undermines the death penalty's penological rationale.

Consider punishing someone for something they did over twenty years ago. The state of the person's life was very different. Society is different. The opinion of the victim's family (which is not likely to be of one mind) might have changed.  Add the fact that the person already is being punished all that time. As a person ages, the safety rationale of execution diminishes decade by decade.  All that time in cruel conditions is a problem too.

Consider Thomas Eugene Creech. He is a serial killer. Once in prison, he killed an inmate who threatened him. This last murder specifically is why he was sentenced to die by Idaho. The facts sound like a form of self-defense but I can understand that murder in prison is a special case.

[ETA: The additional discussion of his failed execution that I linked in the footnote cites an earlier Supreme Court opinion rejecting a challenge to his sentence. The dissent flagged the details of this specific crime (not all his crimes) make the special degree of heinousness required for a death sentence questionable at best.]

That murder was in 1981. He's in his seventies now. What public interest, other than a form of euthanasia, requires them to execute the guy now?  

Since this length of time on death row claim never received traction, his lawyers tried other things. For instance, a judge is the one who sentenced him. Well, a recent capital case involved a judge overruling a jury. If no justice was going to flag that, why would this get much more attention?  

(The lawyers argued that the "evolving standards of decency" require a jury to decide who lives or dies. This Court is not a great fan of that concept, especially as applied to courts overriding executive and legislative action.)  

A parole committee deadlocked 3-3, with one member deciding not to take part (not sure why). So, it is not only a bunch of death penalty absolutists who are promoting his case.  When life turns on such close calls, I think life should win. It underlines the corruptness of the system where even executing a clearly guilty serial killer raises red flags.*

SCOTUS rejected his claims without comment. Then, Idaho tried to execute him. They tried for forty-five minutes, but there was some vein access issue. They failed. The death warrant expired. Idaho now has to decide what to do next. 

Idaho wants to assure us that it was not "botched" and "the process worked as intended." Oh? Forty-five minutes and eight (by one count) failed attempts? They are now talking about using the firing squad in executions, which some experts think is the "best" method. Why not just avoid executions? The last one was in 2012. 

So, that left Texas. 

Texas sentenced Cantu to death. There is credible evidence, now convincing more than one of the original jurors [second guessing is a thing in such cases, especially as new evidence arises], of reasonable doubt of his guilt. It is doubtful enough to commute the sentence. 

Cantu's case is more fact-bound so it is harder to raise a last-minute Supreme Court review. The Supreme Court never totally closed off a rule against executing the innocent. 

But, even before the Court became more conservative, the level of proof necessary to have a chance was darn hard. He tried to get the chance to make a claim, citing new evidence. A challenging uphill battle.  The court of appeals rejected his attempt.  

He was executed without a final SCOTUS appeal. His final statement included a continual declaration of innocence.  

---

* Chris Geidner summarized:

He has three cases pending at the U.S. Supreme Court. The first petition and application for a stay of execution address the judge-only sentencing scheme; the second petition and stay application address the state’s secrecy; and the third petition and stay application question the constitutional effect of alleged false evidence being presented by a prosecutor at a clemency hearing.

I have addressed the problems with the lack of opaqueness regarding the rules ("protocols") used for executions. Relatedly, there have been concerns about the safety of the drugs used, especially with the lack of clarity of details. This includes rejecting requests by media for more information. 

The secrecy claim appears from a perusal of the brief to focus on the drugs used to execute him. The botched execution turned on not being able to inject them in the first place. 

But, it still underlines the importance of safeguards regarding methods of execution.  ETA: More here.

Trump: Serial Predator

[This post deals with sexual abuse.]

Stephen Colbert's comment about Trump trying to block civil judgments against him made me think. As one article reminded us:

At least 26 women accused President Donald Trump of sexual misconduct, including assault, since the 1970s.

The article summarizes with a Trump response to the allegations. The allegations include his first wife:

Ivana said Trump attacked her after he underwent a painful "scalp reduction" procedure done by a doctor she had recommended, tearing her clothes and yanking out a chunk of her hair.

"Then he jams his penis inside her for the first time in more than 16 months. Ivana is terrified … It is a violent assault"

There is a lot of groping, assisted in various cases by his role as a celebrity host. Summer Zervos is a notable example:

2007 meeting at The Beverly Hills Hotel.

"He then grabbed my shoulder and began kissing me again very aggressively and placed his hand on my breast," she said. "I pulled back and walked to another part of the room. He then walked up, grabbed my hand, and pulled me into the bedroom. I walked out." Zervos added that Trump thrust himself on her before she left the room.

Zervos sued Trump for defamation after he accused her of lying about the allegations. Trump's attorneys have moved to dismiss the case, arguing that, as president, he can't be sued in state court and that his remarks about his accusers are political speech. 

The litigation then dragged on and on with the usual costs, abuse, and inability to respond openly given the limitations of litigation. Trump's being in office (which will be a stain on our nation for time immemorial) was used to delay.  She (as many victims do) finally said it wasn't worth it:

"Ms. Zervos no longer wishes to litigate against the defendant and has secured the right to speak freely about her experience," her lawyers Beth Wilkinson and Moira Penza said in a joint statement. "Ms. Zervos stands by the allegations in her complaint."

Zervos' case remained unresolved in part because Trump sought while in the White House to halt a variety of legal proceedings by arguing a sitting president could not be sued.

When the events that a civil jury now has decided occurred as she alleged occurred, E.J. Carroll was warned by her friends not to sue. This was in the 1990s, long before Trump was as powerful as he is now. A change in New York law to allow for more time to bring old allegations of sexual abuse allowed her to bring suit as late as she did. Her case is still pending.

More information on the sexual allegations of wrongdoing can be found here. The overall nature of the allegations is not really denied by most people. You will have the usual people not want to believe them or who will diminish them. There are a few tools that are doing that with the civil suit in New York referenced by Colbert.  

However, again, the fact he has played fast and loose with real estate laws all his professional career is not news to those who have kept track.  

Go down the line here. The Manhattan DA requested a limited gag order for the criminal trial, able to provide detailed evidence as to why it was necessary. Some concern trolls are upset that people are mad that Trump blithely gets to do this without nearly no penalty (unpaid contempt fines are not really that), worrying about the First Amendment or people not concerned with due process. I'm tired of them too.  

Trump is a predator. The fact enough people voted for him in 2016 (three million more did not, but not in the right places) and keep on supporting him is a travesty. I have not kept a close eye on the coverage of the E.J. Carroll case, but the headlines alone should reference his past history.

Down the memory hole as in 2016, he is often seen as a generally vague distasteful person without people being forced to address the particulars. And, finally, why hasn't the Supreme Court decided whether or not to take the immunity case so that the D.C. trial can officially get back on track?  Or, hand down an opinion in the insurrection case? 

Are they waiting for Nikki Haley (whose campaign texted me for a donation today; sorry, no) to drop out?  Yet another enabler of a serial predator. Nauseating.  

ETA: They took the immunity case. Enablers. 

Tennessee Governor Signs Law Allowing Potential Officiants to Refuse to Solemnize a Marriage

Marriage generally requires two steps. You get a marriage license. Then, you have to "solemnize" it.  The basic idea is to have some ceremony with witnesses. The license should do it. The solemnization adds some additional symbolism and clarity to the whole thing. 

Traditionally, this was a church ceremony. So, the idea was to get God involved. The word is defined as "formal or ceremonious observance of an occasion or event." It does not necessarily have a religious connotation though it usually does. In this case, it includes going to City Hall.

During the debate over same-sex marriage, some people talked about taking the government out of the "marriage" business. The people who say this do not usually mean that married people should not have special rights and obligations. For instance, tax consequences, or a right to visitation at the hospital. 

They consider "marriage" as a religious term. They would call the other thing a sort of "civil union." But, that is a government-based marriage. It is a civil union.

The alleged concern for religious liberty, which Justice Alito has flagged, is specious. Jesus tells us that divorce is immoral except in special cases (the gospels disagree when). Biblical law disallows more marriages as "incestuous" than the civil law. 

Homosexuality is more controversial for some people. But, religious liberty is for all. And, it was not that long ago that divorce was broadly problematic. Just ask the British royals. Being divorced was verboten for many people, including politicians, in this country not that long ago. 

The concern is thinly veiled homophobia. There is a push to allow public officials to not take part in marriage "ceremonies" when their religious beliefs are at stake. The word, along with the word "solemnize" is misleading. A public official must take part in many things they might oppose. For instance, a Quaker will have to take part in actions that further warfare in various respects. Tax policy clashes with personal morality in various respects. It is not a religious ceremony.

Tennessee passed a law ("public welfare requiring it") that allows a public official not to solemnize a marriage. The law simply notes the exception. 

An original draft more explicitly flagged it as a religious exemption. The law also is general. Someone opposed to divorced people remarrying can take advantage of it. But, again, such people have been around for quite some time. What motivates these laws is LGBTQ+ bias. There is enough cover to claim they are neutral laws. That should only convince those who wish to be.

The law is flagged as a way to chip away at the rights of same-sex marriage. A person can still get married. The state is not allowing officials to deny licenses. Any number of people can solemnize a marriage. This includes "ministers, preachers, pastors, priests, rabbis and other spiritual leaders of every religious belief" and a range of governmental officials. Then, there is a qualification on what that means. If people want to talk about religious liberty, how about states trying to parse like this:

In order to solemnize the rite of matrimony, any such minister, preacher, pastor, priest, rabbi or other spiritual leader must be ordained or otherwise designated in conformity with the customs of a church, temple or other religious group or organization; and such customs must provide for such ordination or designation by a considered, deliberate, and responsible act.

New York recently passed a law to allow non-ordained people to marry one time. The whole parsing here to be is a First Amendment problem. Just let anyone who wishes to do so officiate a marriage. If you want, which is fine, require the person to take a class or something to familiarize themselves with the rules. They also can be checked out to show they are not frauds or something. But, to me, this is a more real concern than what is behind this regulation. And, we should understand the context:

Republican officials in Tennessee have banned gender-affirming care for minors, repeatedly singled out transgender athletes, removed LGBTQ+ people from the state's nondiscrimination laws and targeted gender identity policies and education in schools. By May last year, according to the Human Rights Campaign, Tennessee had passed 19 laws restricting LGBTQ+ rights since 2015.

Overall, the law is discriminatory in motivation and practice. A same-sex couple is most likely to find out that someone won't complete the marriage. The couple has a right to consider this a homophobic act. There are worse anti- LGBTQ+ acts these days, especially the anti-trans laws out there. 

But, it is part of an overall campaign. The people doing this will also try to do things with more teeth to harm same-sex couples. If you work in government, one of your jobs might be to handle marriage licenses. Or handling divorces. Is there a law saying that if you disagree with a divorce, you should not have to handle the paperwork? If you are a judge, can you not take part in a civil lawsuit because you find the litigation immoral?

The whole thing is a symbol of what is wrong with the Republican Party these days. They promote bigotry from the top down.

South Carolina Primary

A rematch is a curious thing in presidential elections. 

We had it in 1956. There is also the curious 1892 election after a popular vote winner lost the election the time before. 

Trump running again after losing (and by a large margin in the popular vote) is curious.  Some even assume he's a lock to win. 

President Biden surely was a lock for the nomination, even if (this is getting a bit too much attention in some places) some people are fantasizing about Biden eventually choosing not to run. We still are having primaries, even though there are only token opponents. So, he won South Carolina with over 95% of the vote. Nice use of government resources, huh?

Back in the real world, I appreciate that Jennifer Rubin wrote a supportive op-ed entitled "Kamala Harris is an underrated asset." The "Biden is a horrible candidate" talk repeatedly has a subtext (or an aboveboard text) of Vice President Harris bashing. 

For now, Nikki Haley is sticking around. She is the last woman standing in a pretty sad field. As TPM notes, her showing in South Carolina (granting she was governor there not that long ago) is not as bad as it seems. We have been hearing about a disaster there for a while now. The current count is something like 60/40. Forty percent of the people in a red state like South Carolina voting against Trump is notable. 

(It looks like the state has a winner-take-all system since all the delegates went to Trump.) 

Why shouldn't Haley stick around, if she has the money? Now that she is the sole opponent, she has started to be a bit more nasty against Trump. It's hard to see that Trump (who is now aiming to take over the Republican National Committee with his daughter-in-law) forgiving that. 

She's only around fifty. She has a long future ahead of her. People talk of the possibility of Trump dying or maybe being convicted (if that matters). Who knows, for instance, what is going to happen even in 2028? Anyway, after she joined the others in soft-soaping the anti-Trump talk, half a cheer for now, Nikki Haley, though your positions still are horrible. 

While some are doom-ing, 40% of South Carolina voters went out of their way to vote against Trump. I'll take that as a good sign. 

==

Back in 1944, there was a chance Justice William O. Douglas (only on the Court for about five years at the time) would be FDR's vice president. 

It was not to be. He turned down offers from President Truman. By the 1950s, Douglas was less likely to go into politics, though he played politics. Citizen Justice: The Environmental Legacy of William O. Douglas by Judge Margaret McKeown (she retired to leave open a slot for Biden) discusses his environmental campaigns. 

At some point, it gets a bit repetitive but does provide some depth regarding his techniques and talks about possible ethical problems. We also get the background on his famous dissent about giving standing to the environment (really for those who enjoy it). The judge herself sees him as a kindred spirit, both as a westerner and environmentalist. 

I wouldn't have minded a bit more devil's advocate, talking about how the people he campaigned against weren't all evil bastards or something. She did flag the accusations of elitism, opposing certain means to open up the environmental treasures to those without the ability to hike there or something. Also, she notes sometimes the development he opposed was supported by locals. 

So, we do get a bit of that too. The book ends with his comment that he wanted to leave this earth better than he came. The video from Good Morning America, right after his retirement, is as of now still up. 

And, his fourth wife (who he married in the 1960s while she was in her 20s) is still around. She shows up for various Supreme Court events.  

SCOTUS Watch

Having observed the treatment of violent criminals in the New York area by the Manhattan DA there, Alvin Bragg, it’s safer to keep him here and keep him in custody so he can’t be out doing this to individuals either in our state or county or the United States.

Arizona Prosecutor Rachel Mitchell is trolling against DA Bragg. She has someone in custody for non-fatal crimes. 

The NY crime involves strangling and bludgeoning a Queens mom sex worker to death. A Bragg spokeswoman noted that New York’s murder rate is less than half that of Phoenix, Arizona.

There is no charge yet in the NY crime so the Art. IV extradition rule has not kicked in. Someone online said (I haven't seen it) that there already is an Arizonan policy to hold a felony defendant in such a case. I don't know what the exact rule is. I do know the woman who the Republicans chose to ask questions when someone accused Brett Kavanaugh of sexual abuse is trolling in a case involving a horrible crime. It's disgusting.  

==

Fix the Court is eagle-eyed about any possible ethical problems.

A new report reveals that Chief Justice John Roberts and Justice Clarence Thomas did not use the U.S. Marshals Service for their security detail for several years, limiting the public’s insight into the justices’ off-the-bench activities. 

The documentation we have is incomplete, including all of the details of multiple cases (she saw) involving Sotomayor when she used state-funded services. A full account of expenditure would meet the spirit of a constitutional provision (Art. I, sec. 9) about recording spending. 

==

C-SPAN summarizes a Sotomayor/Barrett event:

Supreme Court Justices Sonia Sotomayor and Amy Coney Barrett spoke about the court’s processes and the importance of navigating disagreements with civility and respect during a discussion at the National Governors Association Winter meeting. This discussion highlighted Chair Gov. Spencer Cox (R-UT) and Vice Chair Gov. Jared Polis' (D-CO) bipartisan initiative “Disagree Better.” The initiative focused on getting leaders and the public to debate issues of concern but with civility and respect for each other. 

Charming. Justice Sotomayor recently was flagged as saying she was quite upset about various rulings. Now she (again) is playing nice with the people who are behind them. 

Got to use civility to dissent when a justice was put on the Court as people voted for Biden (CF: Garland) was the final vote to help enslave women. I am turned off when people sneer at her religious beliefs, okay, but my respect for her is somewhat low. Sorry. She asks good questions during oral arguments. Everyone be polite!

People flagged questioning during the Barrett confirmation hearings regarding the possible criminalization of IVF. A group Barrett endorsed supported it. She used the normal dodge that it was a live controversy that she could not discuss. The bottom line is the questioning underlined the stakes of her nomination.  

==

Meanwhile, President Biden continues to get around a 6-3 SCOTUS ruling that blocked loan forgiveness. The final binding effect of the ongoing efforts is an open question. They do overall seem on firmer footing. It's also a BFD, even if some of the framing implies otherwise. 

Orders

After a conference, no orders were dropped on Friday. We are still awaiting a judgment on the Trump immunity case. No opinion was dropped for the Trump insurrection case. 

There will be orders on Monday.  

ETA: Nothing much to note regarding the Order List except Jackson explained her recusal in a case while Chief Justice "misleading by example" Roberts did not. 

Trip to NYPL

I went to the New York Public Library (NYPL) at 40th and 5th Avenue, which was renovated a few years ago. The new version is impressive. If you go down 41st (from Grand Central), look down to see the sidewalk poetry.  I took the Express Bus ($7 now) back. 

I will always think of it as the "Mid-Manhattan" though it has a new name. On the "stacks" level of the first floor (1M) there are many DVDs, CDs, and audiobooks. It was closed when I went, but there is a food court now, and a rooftop terrace area (I never went there).  

It somewhat amazes me that I can go to a library filled with books and not find much interesting. I did take some DVDs and books out, including an interesting one I'm reading by a federal judge (now retired) on Justice Douglas' environmental record. I spent hours there this time.

Eat With Me is a pleasant film involving a gay man who runs a struggling restaurant. His mother shows up one day, driven crazy by her husband. George Takei pops up late in a cameo. Nicole Sullivan, from Mad TV and other programs, is in the film as a wacky neighbor. The film again overall is pleasant. Nothing special but I enjoyed it as a whole. 

The Cigarette Girl From Mosselprom is a silent Russian film from the 1920s. I saw the first half or so of the film. The film concerns a young cigarette seller (looking it up, the woman had a long history in film) whom three very different men (an office worker, a cameraman, and an older American industrialist) fall for. 

She becomes an actress. Meanwhile, a woman in the same office is hoping the guy asks her to marry her, raising another complication. The film is basically a romantic comedy. One amusing scene is when the office worker tries to "save" the woman from committing suicide. Turns out to be a movie scene. 

It is amazing to watch a black-and-white film that shows life in the 1920s Soviet Union. The fact it is a silent film doesn't make it unwatchable though just listening to a musical soundtrack is annoying. The acting and overall filmmaking are good. The overall story, however, is such that it will keep my interest for a film that is around two hours long. I think if the film was a third shorter or something, it would have helped.

Mind you, I stopped watching after around forty minutes, but that is my overall sentiment. It still is a film people should check out.  

I also took out the second season of Drop Dead Diva (an empty-headed beautiful woman dies and her soul is returned into the body of a heavy-set and dull lawyer). I watched the show when it was on until I think it overlasted its welcome. Also, an Australian TV series, which I will comment on later if I find it worthwhile.  

The library has a whole section of television DVDs, including classical and foreign shows. It is a prime resource. 

Meaning of Religious Belief

One thing that interests me is religion. I went to Catholic school from sixth to twelfth grade. Catholicism was not a big part of my family's life. It was a given for my parents. But, we were not raised strongly believing it. This opened the way for my move toward non-belief. 

I remain very interested in the Bible and religion. For instance, Bart Ehrman's weekly podcasts are on the schedule. I am not anti-religious. Many religious people are good people. We believe in God for various reasons. Our understandings are diverse. The abuse of religion by some should not ruin it for everyone.  

What "religion" entails is one interest. Merriam-Webster defines "religions" as "relating to or manifesting faithful devotion to an acknowledged ultimate reality or deity." People are "religious" and do not believe in a God. Some Buddhists do not believe in a god. Universalism includes followers who do not believe in a god. Some people believe in some divine essence. Some religions like Taoism believe in some sort of "divine force."

I skimmed Tim Crane's The Meaning of Belief: Religion From An Atheist's Point of View. He states:

Religion, as I am using the word, is a systematic and practical attempt by human beings to find meaning in the world and their place in it, in terms of their relationship to something transcendent. 

So, it is a set of beliefs that fit together into a system. It is practiced with rituals, doctrines, stories, and the like. It provides a meaning of life as a whole. (A common term used here is "ultimate truth" though he does not seem to use it.)  And, the meaning is found in our connection to something transcendent, something beyond normal existence.

The last part is special. Humanism, in his view, is not a religion. We can have things special to us, but only religion has "sacred" things since that means a connection to the transcendent. A person can even have a "religious temperament," be an atheist, and follow religious rituals. But, to be truly religious, you need a religious impulse. A belief in that transcendent existence.  

Tim Crane also explains that the bad things -- such as violence or sexism -- laid on religions regularly are not purely religious. Also, in part, since there are so many religious people and religion is not the problem, the best approach is overall tolerance of religion. Not support; tolerance.

I agree with that last part. People use religions, including Justice Alito in today's Order List (see last entry), beliefs to discriminate. But, there is nothing unique to religion that requires this. Crane notes that the 20th Century also shows that religion alone is not the path to perdition. 

Many religious people promote equality.  Religion need not be particularly the path to irrationality either. Catholics, for instance, nearly always reject the official policy regarding birth control. Many religions, including Judaism and Islam, provide room for a lot of debate and freethinking. Religion provides a lot of things for people too.

I don't know about the line drawing for "religion" though. The idea a person can have religious temperaments belonging to religious groups, but not really be "religious" to me is a bit silly. The idea atheists cannot really have a concept of sacred also seems off to me.  Religion often has an emotional component that does not require belief in the supernatural.

Exact line drawing often could be of limited importance. I think, for instance, there are three ways to approach the First Amendment. First, "religion" can be defined in a very open-ended way. Second, we can take a type of "penumbra" approach (Griswold v. Connecticut) involving aspects of religion, including rituals, matters of conscience, and so on. Third, religious choices can include the rejection of traditional religious beliefs.

What lacunae really result from the different accounts? Sometimes, "conscience" will be more open-ended, but you don't need to have much more to have it fall into "religion." Courts and so on don't want to limit "religion" in close cases. Other factors, including harm to others, should be the deciding matter. If humanist groups are not "religious," they often will fall within an exception (such as a tax break). 

Tim Crane's book lost me at various points. But, it has some interesting aspects.  And, I agree the heavy-handed approach of some "New Atheists" is both counterproductive and misguided in general. A respectful examination is appreciated.  

ETA: Speaking about religious issues, Alabama's ruling recognizing frozen embryos as "children" included a justice firmly supporting "theologically" based laws. Very troubling and something Justice John Paul Stevens' in particular flagged in various opinions. 

More here. Various concurrences, partial dissents, and full dissent provided different takes, none of which seem particularly liberal. But, more sensible.  

SCOTUS Watch

Trump Immunity Case

I referenced this earlier but I'll repeat myself to put things all in one post. 

Trump's lawyers requested a stay last Monday, the last day to do so before the circuit opinion went into effect. The government quickly replied. And, then Trump's side replied. Speed is possible when desired. 

The quick reply allowed the Supreme Court to take up the matter in their Friday conference. One assumption was that if they cared to grant the stay, they would do so on Friday. This is a common approach. Then, the Order List involves run-of-the-mill stuff. On the other hand, this is a special matter.

Regardless, no action was taken on Friday.  

To remind you, if you go to the Docket Page (the main Docket Page link under the "Case Documents" tab; SCOTUSBlog helpfully provides case pages with a direct link), you can find proceedings and orders related to the case. 

Now, there is a service where if you click the envelope icon on the case's docket page, email updates will be provided as things occur. BTW, the docket page link on my blog sometimes doesn't work if you directly click it. If you cut and paste the URL, it will work. 

Friday Odds and Ends

SCOTUS released the April argument schedule. April is the final month of oral arguments.

Alito released an "administrative stay," which holds up a case so the request can be examined, in a bankruptcy matter. 

[Lifted on 2/22.]

The solicitor general's request to take part in three oral arguments was granted. 

Wednesday 2/21 was announced as a possible (let's grant it will be) opinion release day. 

Meanwhile 

The Senate Democrats have still not submitted those subpoenas to Leonard Leo and Harlan Crow. A third person early on cooperated, making that subpoena unnecessary. These two cooperating is not likely. What is the hold-up? 

A preview of the issues that will be covered in an argument this week. It involves environmental regulations, an area the Barrett Court has interfered with in recent years. It has some procedural complexities, including a rush to judgment to hear the case. An oral argument, over action the shadow docket might be said to be a "see Steve Vladeck" move. 

Also, a major development in the New York fraud case:

On Friday, New York state Judge Arthur Engoron handed down the verdict in Donald Trump’s civil fraud case. Engoron ordered Trump, Donald Trump Jr. and Eric Trump, along with other officers, to pay more than $360 million. Trump himself is banned from running any corporation in New York for three years; his sons are banned for two.

This guy is the favored Republican candidate for president. To add one more wrinkle, his ever-increasing financial issues only encourage his financial grift, including the use of foreign money supplies (see, e.g., emoluments issue). 

Sure. That is what we want in a chief executive. 

Order List 

After the day off for Washington's Birthday (not President's Day), we have a list of Supreme Court orders. The list was long (if it's over 10-15 pages, it is suggestive) because various justices added dissents and statements. 

Thomas dissented regarded provided a statement regarding a rent control law, saying he is open to the challenge. Sotomayor (with Jackson) dropped a statement respecting a habeas case. Kavanaugh showed interest in the matter in the past. Four votes are necessary for taking a case. 

Alito dropped a statement to complain gay rights somehow interfere with religious liberty as if a range of sexual questions (including divorce) with religious connotations did not exist long before gay rights were protected. 

The case involved the recusal of a person with religious views that reasonably implied bias in the specific case. Read the state opinion here.

Alito (with Thomas) dissented from denial in a case involving an alternative to race-based affirmative action. Gorsuch in a past procedural order supported a stay but did not join their dissent. The duo argues the motive and effect is racially discriminatory. The actual factors are not (at least if you simply read them). 

The case has been closely observed since there is a never-ending fight over such matters, including how far the anti-affirmative action movement will go. The original plan relied on tests. Then, it changed to the use of various factors, which is claimed to burden Asian Americans. 

ETA: Mark Joseph Stern (Slate) flagged five justices recused from various orders -- Roberts, Alito, Kagan, Barrett, and Jackson. Only Kagan and Jackson provided reasons. 

Next Up

We have oral arguments, an opinion day, and another conference scheduled this week.  

ETA: The opinions were short (by Jackson and Kavanaugh) and unanimous (Alito and Thomas added concurrences) opinions on double jeopardy and maritime law.