While you were sleeping ... (Death Penalty Edition)

 (The Court handed down an order list assigning argument time.)

One criminal justice scholar over the years opposed the focus the courts, activist groups and others put on the death penalty. I questioned the sentiment in part since human beings are naturally going to be concerned the most about the end of someone's life.  Murder is treated most severely in this country. But, maybe that is a telling statement, since often non-capital offenses will get you more prison time.  Still, "life" is listed before "liberty" and 'property" for a reason.  Plus, attacking the death penalty is not a closed set.  Concerns about racism in that contexts underlines the point. Anyways, there has been more and more criminal justice concerns in other contexts as well.

This includes looking at grants at SCOTUS.  The death penalty retains its special power, of course, and with Twitter in particular you now can get a blow by blow look on the day of executions. And, there are so few of them, making them even more of an "event."  This at some point is something like watching an accident or something, somewhat voyeuristic.  My blog posts have also dwelled on them a lot lately.  To be fair, I have discussed other matters in other locations.  This leads to less time here.

The ongoing "final day" of Christopher Lee Price (is he named after the actor?)  is an example.  The whole process can be seen as a representation of the justice system as a whole.  From his older co-assailant pleading guilty (trial penalty alert) and receiving LWOP to questions of proper representation to concerns about proper penalties specifically (here dangers of lethal injection, but can be prison conditions or whatnot).  He very well might have been the "face" of the crime here, the other guy not testifying, the heinous slashing of a minster near Christmas put all on his teenage shoulders.  This comes up in other cases too, probably.

As noted, the case has various problems, but the latest was centered on method of execution.  For many, again, this isn't really taken seriously.  But, many botched executions have received much attention, in one case John McCain strongly voicing concern. Along with problems with obtaining lethal injection drugs generally, this is why multiple states (including Price's Alabama) recently provided the option for nitrogen gas. There is some real belief it would be a better method, mixed with some realistic cynicism probably.  At some point, it will be used.

Not sure about the whole "choice of method" approach.  The firing squad was a traditional method, particularly to my understanding in the military. But, for religious reasons, some (particularly Mormons) saw it as the most appropriate method.  I referenced earlier that the other side of the coin is that some people find it immoral to directly choose their own method to be executed.  I guess there is some reason to fear an untried method, which might be a reason why some rather lethal injection.

Anyway, it is unclear to me why Alabama here couldn't simply say, "fine, we will kill you with nitrogen gas, if you wish."  There is a practical value here.  The state has a new method and the Supreme Court explicitly said that there states have some discretion on ways to execute.  (Cf. Justice Stevens once noting that lethal injection was found most humane given the methods available; note cyanide gas is not nitrogen gas.)  Why not simply use it to get it over with?  Sounds cynical but it's realistic too.  Does Price want to just delay as the state crafts a protocol?  Maybe.  But, they have people who did accept the method using their rules.  It's going to have to be used sometime.  His challenge didn't actually start yesterday.  They had time.

As we left the latest cliffhanger, Alabama shortly before 1AM (EST) decided not to execute since their midnight deadline was ready to expire. Per SCOTUSBlog, we are told that shortly before 3AM (seriously), SCOTUS got around to officially rejecting the stay that two levels of court accepted as proper here.  The usual 5-4 split pops up again with the per curiam briefly saying he waited too long.  Justice Breyer was upset:

Should anyone doubt that death sentences in the United States can be carried out in an arbitrary way, let that person review the following circumstances as they have been presented to our Court this evening.

One red flag here was that he aired out some of the inside deliberations usually outside of our notice.  After noting the appeal by the state to lift the stay was filed at 9PM (which was reported and accessible on the docket page, a previous docket page listing the stay filing as not accepted though a link was provided to it by one of the reporters giving updates on Twitter -- again, this sort of thing is available to the general public these days):

To proceed in this matter in the middle of the night without giving all Members of the Court the opportunity for discussion tomorrow morning is, I believe, unfortunate.

Breyer said he asked for the case to be held up to the morning, realizing this would delay things a month, but arguing the matter was serious enough for a full deliberation.  After noting that the state put off the execution, telling us the dissent was written rather late, he added that "unfortunate" detail.  Meanwhile, he spells out why he thinks the lower courts should be entrusted here and why there is a valid case.  Notably, though now it is getting less so, Kagan joined the dissent too.  She in the past was much less likely to join (much less write) these dissents to last minute capital appeals.

There has been various attempts to bridge ideological conflicts in the Roberts Court, but the death penalty of late seems to be an area where this is a lot harder. This is by my count the third time in the last few months where they handed down an order in a capital case after nine o'clock at night.  This does not seem normal given past practice. At least, the level of dissent involved.  It would seem possible to set up a procedure to require final appeals to occur the latest forty-eight hours or even twenty-four hours. (Unless some unique last minute thing pops up.)  Instead, technically these last minute appeals are allowed, but conservatives get pissed off.  What's the point?

Let the final day just be the execution itself.  Meanwhile, ah the irony, it looks like the delay is going to push things back a month anyways. John William King scheduled to be executed in Texas on the 24th ... sure that will go on without a hitch.

Two Executions Scheduled

And Also: Showing judicial review and changing court personnel leading to changing doctrine has an international flavor, the South Korea constitutional court  held there is a right to choose an abortion 7-2, splitting the other way 4-4 not too long ago.  More liberal leadership at top led to a change in personnel.

I have begun to address each individual execution, which is assisted by the fact that only a handful are involved -- four people were executed so far this year with multiple cited as "rescheduled."  The Texan inmate involved in the last minute stay has yet to be given a new date. 

On Monday, the Texas Court of Criminal Appeals halted the Thursday execution of Mark Robertson, who was convicted nearly 30 years ago in the Dallas shooting deaths and robbery of an elderly woman and her grandson.

Checking, one of the two scheduled this week was put on hold by Texas Court of Criminal Appeals for a somewhat ironic reason.  There is evidence that the defense attorney acted to keep blacks off his jury because of a fear they would not be fair to his client.  Past Supreme Court rules have made clear that neither side (in both civil or criminal cases) can discriminate by race.  This includes when the defendant is white and the reason is for his own defense.  And, there is reportedly evidence the prosecution was aware of it here, tainting the process further.

Meanwhile, more typical alleged problems with the sentencing and such is also flagged. This is probably a fairly typical capital case where the problems are less blatant than in some of these matters.  Note the continual issue of someone on death row for decades.  Also, a robbery homicide of this sort seems a somewhat unclear grounds to execute, especially since so few of the many potential candidates actually get a death sentence.

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The other person sentenced to die on the same day is Christopher Price, who has been on death row for twenty-six years (though is only in his 40s), a white man (notable given concerns of racism) guilty of killing a minister during a robbery (his wife survived) shortly before Christmas.  When Price was a child, his own father was murdered.  This is the sort of background information that is put out there to try to obtain mitigation.  And, in fact, two jurors did vote against death. But, that currently is allowed, it seen as sentencing, not the unanimous jury necessary to find guilt.

It is this sort of thing that defense attorneys spend a lot of time trying to go the right way, which even if the person is guilty, a good defense is key. This is in fact often the basic value of representation generally -- guilt is not really is dispute, but how guilty, how strong must the penalty be and various other needs of the client (such as care in prison or the like).  This article flags this case as one where inadequate counsel arguably led to his death sentence.  Again, who knows with the death lottery being fickle.

Price also was involved in lethal injection protocol disputes, but we have seen the value of those these days.  Again, it is not because there was lack of reason for concern.  Nitrogen gas is now an option in Alabama, which is a key difference from the last Supreme Court case, but Price was held not to have signed on for usage by the required date. The first execution (the infamous iman case) was still done by lethal injection, since an inmate has to choose the alternative and the inmate had religious opposition to actively do so.  An ironic wrinkle on that dispute.

On the day of the scheduled execution, the federal district judge stayed the execution for sixty days to examine the question of the risks of lethal injection and possibility the nitrogen gas alternative would significantly enough lesser them. For what it matters, the judge is a Bush Jr. appointment.  A few hours later, shortly before seven o'clock in the evening, the 11th Cir. of Appeals (who also stayed the Muslim inmate's prosecution earlier this year) upheld the stay.  I find this whole thing silly. Was there not a way to decide these final questions before TODAY?

Yes, this is the sort of thing that bothers some conservatives and others, but it is not just gaming of the system.  We can simply have a smooth running system of final appeals that are set before the day of the execution so that the Supreme Court is asked to rule in the evening.  Anyway, meanwhile, somehow Price got married today.  How long he knew his wife is unclear.  Remember he has been in prison for over twenty years.  He also said he wants no spiritual advisor in the death chamber; the state Christian chaplain can observe among other witnesses, including the wife of the deceased who survived the original attack among others.

[The execution warrant was good until midnight local time. SCOTUS not announcing anything, report is -- less than twenty-five minutes before the expiration -- that there will be no execution given time restraints.  This is stupid.  Why couldn't SCOTUS say something in time?]

Meanwhile, his older co-assailant will continue to serve his LWOP sentence,  Kelvin   Coleman avoiding death via plea bargain.

More on the Death Penalty

And Also: I was a fan of "Cathy" comic strips though lost track before they ended since I stopped daily readings of the newspaper. Didn't realize it lasted to 2010. Ditto other things, such as her marriage. The cartoonist's new collection of essays will be familiar.

I want to expand on the last post covering the recent death penalty opinion.

The past is to some degree prologue with some spin when referenced to by current writers. This applies in particular to judicial opinions, which makes references to the past here something to be taken with a grain of salt that might be unhealthy for dietary purposes. Still, I will do so here as I did last time to try to help put things in some context and because of personal interest.  I'm sure that something will be left out here as well.

Amy Klobuchar's husband, John D. Bessler, wrote a book entitled Cruel & Unusual: The American Death Penalty and The Founders' Eighth Amendment.  Bessler's own general beliefs can be suggested by the fact he also wrote the introduction to a book the republished Breyer's dissent in Glossip v. Gross, the one that argued that it is probable that the death penalty as a whole is unconstitutional.  See also, Brennan and Marshall's history laden opinions in Furman v. Georgia (the opinions of the Court as a whole led to a short lived death penalty moratorium).  Suffice to say that there are different ways to look at history in this context.

Wilkerson v. Utah (1879) is generally deemed the first time the Supreme Court substantively addressed the issue of the method of capital punishment, Utah at the time a federal territory.  The punishment there was the firing squad and it was not deemed "unnecessary cruelty."  Reference  "being embowelled alive, beheaded, and quartered, in high treason. Mention is also made of public dissection in murder, and burning alive in treason committed by a female."  About a decade later, electrocution was not deemed to be unconstitutional either, reference made to "something inhuman and barbarous,something more than the mere extinguishment of life. In 1910, however, the Supreme Court in a non-capital Eighth Amendment case did reference "general principles" not merely limited to the specific evils of its birth. In other words, the Eighth Amendment should not merely be seen as barring drawing and quarter etc.  Thus, ear cropping and whipping might have been deemed okay in 1787, but not today.

We are told that in the electrocution case that the the death penalty itself is not a violation: "Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life." This was not universally accepted even at the Founding. A small minority thought capital punishment itself was cruel and usual or simply not republican in nature. A somewhat great number would limit it to a small number of offenses, more limited than mere homicide. See also, the close 5-4 case in the 1940s when a first attempt to electrocute failed.  A case apparently still good law today.

Since the 1940s, there were numerous capital cases, largely concerned with specific procedures. In the 1970s, it was clearly held that the death penalty was constitutional, but not in all cases -- there was a growing determination that (roughly speaking) only the "worse of the worst" should be executed, certain categories be eliminated in part by "mitigating" and "aggravating" factors decided by juries.  We also had passing comments such as: "The Cruel and Unusual Punishments Clause prohibits the imposition of inherently barbaric punishments under all circumstances."

Nonetheless, again, with dissent, there was an acceptance of the death penalty as such. Likewise, though the experience in other countries suggests the "necessity" unclear, our general penal system (including usage of solitary confinement) is accepted though certain limits are in place.  What is "necessary" here still is different from what would be deemed true in 1791 (8th Amendment) or 1868 (14th Amendment). So, though I'm not aware of the Supreme Court expressly saying this, use of whipping posts [even in prison] would seem to be illegitimate.

We come to our current case (Bucklew v. Precythe).  One thing that I didn't reference last time, but saw referenced, was that Justice Kennedy provided the swing vote to even allow this case to precede (March 20 stay).  This makes the "message" laden majority opinion here rather unsurprising.  So, again, we are reminded (which isn't the dispute) that executions need not be painless. Or, the constitutionality of the death penalty per se: "the  judiciary  bears  no  license  to  end  a  debate reserved for the people and their representatives."  This is a basic sentiment of multiple justices here. Reference to "anti-death penalty" groups making things harder etc.  The death penalty is constitutional, so (pun fitting) it must be possible to execute.*

The majority opinion cites originalist arguments to flesh out the meaning of the Eighth Amendment.  Basically, "fiendish" out of date ("long disused") punishments.  A probably telling reference is to Joseph Story saying it was likely unnecessary since no free government would inflict such gruesome punishments anyhow.  And, in a way past opinions did not emphasize, it is even noted that traditional methods such as hanging clearly were painful, but that wasn't the intent. That is, it wasn't gratuitously painful.  But, though special attention is given to the Scalia/Thomas originalist framework, including some specific "intent" requirement, that isn't necessary to decide the case.  We might return to this though.

First, the prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-of-execution claims. See Baze v. Rees (plurality opinion). Second, the District Court did not commit clear error when it found that the prisoners failed to establish that Oklahoma’s use of a massive dose of midazolam in its execution protocol entails a substantial risk of severe pain.

As noted last time, the previous method of execution case (Glossip v. Gross) was somewhat unclear about the hard limits here because it challenged the dissent's argument that "torture" was being allowed.  Note the two part test. Again, in this case, the majority challenges the substantial risk of severe pain claims, tossing in the general sentiment he is gaming the system anyways.  This amounts to a talking past each other, since critics repeatedly basically assume they are allowing torture.

The later opinion states:

As  we’ve  seen,  when  it  comes  to  determining  whether  a  punishment  is  unconstitutionally  cruel  because  of  the  pain  involved,  the  law  has  always  asked  whether  the  punishment  “superadds”  pain  well  beyond  what’s  needed  to  effectuate  a  death  sentence.

I find this a gratuitous reference.  First, note the earlier reference that basically suggests any challenge is unlikely to fail (the Baze opinion is of this character too by appealing to history to show how legislatures over time provided more humane punishments on their own) given what is necessary to violate the Eighth Amendment. Thus, "unusual" basically amounts to punishments of yore. Cf. punishments declared unconstitutional in the 21st Century (e.g., executions for crimes committed by minors).

As noted by Justice Sotomayor's dissent in Glossip, precedent suggests that there is a hard bar to "barbaric" punishments without a priviso saying "except when necessary to carry out the death penalty."  Again, the matter simply was not pressed, to be honest, but the point holds.  Plus, what is this "well beyond" test with all the other dicta?  Apparently, even if the state could execute some other way, a way that would substantially reduce pain, it might be okay. And, it would be the prisoner's responsibility to find that alternative, including one where clear usage could be shown (the nitrogen gas method not yet used).

Lethal injection usage has clear due process problems. But, the majority here (Kavanaugh concurring separately to assure us of his reasonableness, but still joining the opinion) is sick of it all.  This is as much part of the opinion as specific aspects such as refusal to accept special cases (as applied challenges of this type by people with atypical medical conditions) might require special concerns -- this would more likely result in "pleading games."  This runs counter to the sort of individualistic constitutional concerns we should follow here, the sorts the majority might use to reject certain "group" affirmative action policies.

Again, this doesn't bode well, though in other cases, one or more of the justices of the majority has shown more concern for the needs of criminal defendants. 

===

I will add something to a possible response to the beginning of the penultimate paragraph.  Oh?  So, you actually really want to block the death penalty, right?  Well, yes, and so do various people who are providing these challenges.  At least, for their specific client.  But, that is but one of three possible answers to the rejoinder. 

Well, of the three that came to mind after writing this but was expressed somehow in these two essays.  A somewhat related one is touched upon by Justice Sotomayor: challenges that fail quite often still are reasonable ones.  And, that is the second thought:  just because you might think the death penalty in some sense is constitutional (or acceptable) doesn't erase its problems.  The need to be particularly careful.  The need not to give the amount of breathing room this opinion at times does. 

The final is that tinkering (to cite a famous line by Justice Blackmun) with the death penalty (and other hard stuff, and yes, I don't think this is always easy) reflects what limited humans are left doing.  I am not too optimistic that nitrogen gas is the "solution" here to humane executions (granting that is not some sort of oxymoron), particularly since it is not used for the same purposes in other contexts. Consensual euthanasia with a medical professional not blocked by ethical concerns from taking part, for instance. Or, the few that suggest the firing squad. Or, maybe something else? Who the hell knows, but probably.

But, as in the past, maybe it is somehow better, at least for this specific defendant. For lethal injection has a lot of issues. 

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* The Constitution clearly has language that presupposed when written that capital punishment will occur though not each provision cited only applies to that (e.g., there are multiple ways a state can deprive a person of life in violation of due process).  But, there is an assumption from some it somehow expressly gives the government a right to execute people. It does not.

It is particularly dubious that there is some compelling need to execute when so few people are these days.  And, as noted, even back in the day, some did not think the death penalty was an appropriate usage of government power.  Finally, over time, it clearly is possible that due process, the Eighth Amendment, equal protection principles or maybe something else makes the death penalty as applied in this country unconstitutional.  The Double Jeopardy Clause references threats to "life or limb," quite clearly referencing a day when physical punishments were accepted.

Female "Topless" Not Quite The Same (But Still Seems Actionable On the Facts)

Somehow, a young teacher's topless selfie to her fellow teacher boyfriend was obtained by a student, which eventually (after some embarrassment and shoddy treatment to her in the telling) led to her being fired. How it was leaked is unclear, but she was somehow blamed. But, the lawsuit was based on more than that, including male teachers having "topless" photos out without any concern about them being role models. She even allowed the photo to be published to underline how she has no reason to be ashamed. I think that is a tad much, especially if she wants to continue teaching. But, the facts suggest she might have a case.

Update: The photo is now edited on that site as well. [Now it isn't!]

Bucklew v. Precythe

And Also: The Supreme Court handed down another stray order though SCOTUSBlog and (to my knowledge) the usual Twitter legal journalist suspects did not flag it. Using the docket number, a person can do a docket search to find out more about the litigation. The Court generally doesn't explain why it ruled as it does in these orders or those that are handed down as a group on "order days." The order page has a brief summary of policy and the docket page link is provided but a bit more clarity (such as specifically noting what that number is) would be helpful.

(this and the below was edited since first published)

I briefly referenced the method of execution case handed down earlier this week that received a lot of attention (Bucklew v. Precythe), providing some more comments when it was referenced elsewhere.  See also, here.  Last time, I provided two links suggesting the strong responses it brought, including basically concluding the Supreme Court accepted "torture." Some criticisms also in various cases closely examined the arguments though came to the same basic conclusion. A closer look is helpful.

A basic conclusion of mine is that it is best not to look at this case purely on face value.  It also has had a long build-up, not merely decades worth of death penalty litigation in general.  Such litigation over the years came at the death penalty from a variety of angles (racism, due process, innocence, categories of exceptions such as minors etc.).  One angle, which in some fashion gets to the core of the Eighth Amendment, is method of execution arguments. In effect, the method itself (electrocution, hanging etc.) was particularly cruel and unusual.  And, in each case, there continuously was a belief that the real target was the death penalty itself, not merely it being taken too far.

A problem here is the Supreme Court itself never struck down an execution method as such to my knowledge, the cited forbidden cases like crucifixion never tried. Eighth Amendment claims did over the years successfully put some limits on treatment of prisoners, underlining that there are limits to what you can do.  Also, I think they didn't go far enough limiting the types of punishments here, especially in respect to schoolchildren.  As referenced in some of the cases cited in Baze (see below), various justices over the years have made good cases that various methods are unconstitutional, including gas, electrocution and hanging.  The Nebraska Supreme Court deemed under its state constitution that electrocution was invalid. 

The fact something is constitutional in general does not necessary mean cases could not be found it problematic as applied. It left open means to make such claims regarding lethal injection at least as far back as about fifteen years ago, then in a case involving an inmate whose condition made it harder to safely use the procedure in place.  Such in a fashion is the argument here too. Note that the litigation strategy required not alleging that no method was possible. (During oral argument in this case, Sotomayor in fact suggested this might be a possible constitutional bar in some case.)  They assured the justices that there was a different (constitutional) method for the state to use.

This is important since some of the responses in the latest case was appalled at the idea that the Court demanded the inmate explain a way to kill them.  But, none of these cases involve defendants who actually lack such a means. At least, so they claim. The Supreme Court, e.g., directly dealt with a lethal injection method ("protocol") used in  Baze v. Rees (2008) with Obama's eventual solicitor general (Donald Verrilli) arguing for the inmates.  The state used three drugs (one to knock you out, one to paralyze and one to kill ya)  and certain safeguards are in place make sure the anesthesia agent really is working or the execution drug could cause a lot of suffering.  One problem here being that the paralyzing agent (largely in place for cosmetic reasons) would prevent determining if the inmate was actually feeling a horrible amount of pain. Some states use one or two drugs.

One strawman offered by some in these cases (cited by Gorsuch in the latest one) is readily admitted as such.  As Roberts for the controlling plurality noted:

Some risk of pain is inherent in any method of execution—no matter how humane—if only from the prospect of error in following the required procedure. It is clear, then, that the Constitution does not demand the avoidance of all risk of pain in carrying out executions.     

Petitioners do not claim that it does. Rather, they contend that the Eighth Amendment prohibits procedures that create an “unnecessary risk” of pain. 

The controlling plurality (Breyer and Stevens concurred on separate grounds, Souter/RBG dissented: Scalia/Thomas has a stricter test):

Instead, the proffered alternatives must effectively address a “substantial risk of serious harm.” Farmer, supra, at 842. To qualify, the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain.

The opinion ends with an argument that history showed entrusting legislatures with discretion led to a steady increase of more humane punishments.  Sort of a have your cake and eat it too. The opinion also argued that since the death penalty was deemed constitutional that it "necessarily follows that there must be a means of carrying it out."  But, that doesn't mean any method could be used. Unless it is no longer "safe to affirm that punishments of torture, . . . and all others in the same line of unnecessary cruelty, are forbidden."  The justices did not think the method challenged in that case violated that rule.

Justice Stevens flagged that he questioned the constitutionality of the death penalty, but concurred in judgment since that question was not at issue.  Glossip v. Gloss (2015) suggested passions only heightened as time passed, including as states found it harder and harder to obtain execution drugs as European countries banned their use. States used suspect means such as compound pharmacies and opposed opening sources, which was flagged especially as multiple botched executions occurred. This not only might have breached federal law (e.g., not meeting rules regarding importation of drugs), it also raised both a due process (how could you ensure that with a sort of black box?) and First Amendment problems.  But, those who support execution also were angry, thinking abolitionists were blocking a perfectly constitutional method of criminal justice.

This came out in the that case, especially from Justices Alito and Scalia, and Justice Kennedy (who in various death penalty cases provided a fifth vote for liberal decisions) went along silently, leading one to think that this was also a bridge too far for him (he did support a stay in the most recent case).  In the new Roberts bio, it is suggested that he uses Alito for certain red meat cases and he wrote the majority here for five justices.  Again, the basic argument was that defendants did not have a case on their allegation that the drug used (because of shortages) truly threatened a "substantial risk of severe pain." Justice Sotomayor strongly dissented on that point. Breyer and Ginsburg added a more open-ended brief against the death penalty.

The opinion also explains how the new method was used because of shortages in significant result of opposition of the death penalty. But, it is not like the inmates themselves did this. There still must be some core limit to what method is used.  The opinion, however, flagged an independent concern here (again on the theory the death penalty is constitutional, so there must be a way to do it): "the prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-of-execution claims." Sotomayor also strongly went at the argument. The majority tacked on this:

Finally, we find it appropriate to respond to the principal dissent’s groundless suggestion that our decision is tantamount to allowing prisoners to be “drawn and quartered, slowly tortured to death, or actually burned at the stake.” Post, at 28. That is simply not true, and the principal dissent’s resort to this outlandish rhetoric reveals the weakness of its legal arguments.

As Sotomayor argued, somewhat ironically in part by reference to the most conservative justices' concurrence,  the earlier opinion did not compel a conclusion that left open a cruel punishment if there was no other alternative.  (Imagine an isolated island where only a rusty knife or stones are available to execute someone.) The inmates there offered an alternative (though it was deemed inadequate).  Punishment itself is constitutional, but minimum requirements of humane prisons would not disappear  because of severe budget shortfalls.  Anyway, that final kicker implies that the justices basically didn't think the protocol here really was cruel.  The whole thing just to me is open to unnecessary confusion.

[Sotomayor also noted that there is some evidence that -- though it has barbaric aspects -- even the firing squad might be welcomed by certain  inmates over lethal injection. Kavanaugh cited this in his concurrence here, much to some people's disdain.  How much Sotomayor was saying the firing squad would actually meet Eighth Amendment standards is unclear.]

And, thus we have our current decision, with the conservatives if anything more upset.  The belief the defendant here, whose crimes are cited with tabloid relish, is gaming the system is not exactly hidden.  Ditto complaints about drawn out and last minute appeals. As noted by Breyer and Sotomayor, not only is it wrong on the facts repeatedly here, the principle leaves a lot to be desired.  Breyer does note in a section of his dissent for himself alone that he is concerned about drawn out appeals. But, there is blame to be spread around there, and reducing protections is not the way to go.  Like Sotomayor's suggestion in miniature, it just might be that the whole thing is a problem. Or, we can suggest this was a special case; suffice to say the majority was suspicious.*

Again, there is some confusion here regarding some core that the Eighth Amendment bars (if using originalist arguments that some deem to be laying the groundwork for overturning decades of case law) and the need to provide some alternative that works. But, again, a nitrogen gas alternative is offered.  The majority argues it is not really "available."  And, again, the justices don't think the means used a problem anyway. The opinion is longer than many Robert Court opinions, and it seems if Gorsuch cut off the spleen and extra material to make the ruling stricter than necessary, it could have been much shorter.  The extra stuff on some level seems to be the point. Plus (see the links) adds more confusion.

(Kavanaugh, who pushed the state during oral argument if there was simply no case where a lack of alternative would result in an unconstitutional execution, in his separate concurrence seemed to reaffirm the point.  This was an "as applied" challenge, so the inmate needed to find an alternative, which  could be done with some wide discretion on what is open. There is no conclusion that actual "torture" would be allowed here. The question simply is not pressed.  The dissent thinks requiring the inmate here with a special condition to provide an alternative is not necessary, but again, it reaffirms that even if that was required, he met the case. The debate is thus on the details. A strong debate surely, but more focused than the majority.)

The whole thing is shoddy and not a good look for Roberts, who is supposed to care about the Court's image.  A narrow ruling that the facts does not warrant holding that lethal injection here, even given the inmate's condition, was not dangerous enough to provide a substantial degree of pain that would violate the Eighth Amendment would have divided them. But, it could have been a more reasonable debate. The conservatives, however, seemed to have wanted bigger game. Let's see how the courts of appeals handle it.  Doesn't bode well for the future of the Roberts Court.

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* Over the years, I have seen even those dubious about the death penalty somewhat suspicious about challenges over lethal injection protocols, but experience and scholarship has shown significant problems do arise. As with the death penalty itself, there truly is a possible middle ground, especially in egregious cases. Procedural due process is one concern, scholarship in part noting that the protocols have been crafted and carried out in a slipshod matter. We also have special cases where the inmate might have a good reason to argue a particular method is problematic.

Sotomayor is right to note that litigation is not illegitimate even when the challenges ultimately might fail.  The same applies if the people involved given their druthers might find the whole affair unconstitutional or simply horrible policy.  Lethal injection is one more attempt to provide more humane punishments that leave a lot to be desired, including the use of a medicinal approach without physicians (for ethical reasons) to safeguard it.

The overall battle hopefully will get us somewhat closer to a better result, imperfect as that might be. Yes, I personally think the better path is to just not execute people.  The inmate here offered nitrogen gas an alternative and that is being put forth as a better alternative generally.  Color me as suspicious even if it is used for euthanasia by willing participants.  The firing squad is also cited in text though it is probably too "icky" and involvement in the killing a tad too blatant for the general public to accept the practice. It has been used in the past so some limited examination is possible in context as compared to nitrogen gas. 

SCOTUS Watch

After another boring order list with a single 4A grant of limited reach, the Supreme Court handed down two opinions. The first was both disappointing (oral argument suggested some hope it would go the other way given the extreme nature of the facts) and concerning. The majority went all "we are sick of these things" regarding method of execution appeals with Breyer/Sotomayor providing the reasonable judge response. More here. The other is a less emotional case about expert testimony with Sotomayor and Gorsuch (and RBG, who joined up a few times so far now) dissenting. Meanwhile, Veep, S7, started off eh.

ETA: This summary clarifies the second case. The majority ruled narrowly and Gorsuch's second-guessing the government here isn't too surprising, nor is two liberals going along. Also, finished the new bio on Chief Justice John Roberts. Interesting and shows (umpire talk aside) his conservative history influences his judging. And, it has a bit of bite on him too. The in-house stuff isn't really surprising though we get some on the Affordable Care Act (not Heller though); the discussion of his early thought process on using the tax to save the mandate is confusing. He is said to have changed his mind but without deciding on the tax point, it wasn't clear the mandate was dead. Anyway, November, 2016 really changed things.

The Aftermath

A British officer invites his wife to join him while he serves occupation duty late 1945. She deals with losing their son in the Blitz while he is off much of the time dealing with some violent resistance. He tries to do his job professionally but his underlining emotion leaks out at times. Meanwhile, the German father (whose wife died in bombing too) and teenager daughter whose house they are staying in have their own issues. An affair arises though things end up fairly predictably. Overall, well acted and convincing re-enactment of the setting. Story is decent. Helped it was a $7 cheap day affair at the nice Bronxville Cinema.

And Also: I also had a chance to see a taping of tonight's Chris Hayes (sans tie like the old weekend show days) special town hall with AOC regarding the Green New Deal. Good selection of commentators. Taped right near me. AOC is great.

More Orders: Guns and the Death Penalty

And Also: The Mets, letting the rookie play (he helped manufacture the insurance run) even if it meant they lose control of him a bit sooner, won their first game with newbie Canó (who I admit I was wary about) starting off with a HR and then knocking in the insurance run. He also made a key defensive play. DeGrom (with his five year contract) gets the win.

Current possessors of bump-stock-type devices must divest themselves of possession before the effective date of the final rule.

I was going to separately deal with the execution scheduled today but another order warrants note. The order in a "pending case" that did not at this early point stop the bump stock ban from going into place is not surprising.  To remind:

Bump stocks — the gun add-ons that can dramatically increase their rate of fire — are now officially illegal in the U.S., after a Trump administration ban took effect Tuesday. Anyone selling or owning bump stocks could face up to 10 years in federal prison and a fine of $250,000 for each violation.

What did surprise me some is that the new regulation, a mild one after yet another mass shooting, does not grandfather in existing bump stocks. As that link notes (with a link to the government website), owners now have to destroy them (instructions provided) or dropped off an the ATF office.  The "assault weapon" (since it applied only to some weapons, I put it in quotes) ban of 1994 was not as strict.  Imagine if it was. With less loopholes.

Later: And, they denied another stay, Thomas/Gorsuch dissenting, leaving a lower court the option to stay it for a few days.

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Patrick Murphy, who was convicted under the controversial law of parties after playing lookout during a deadly store robbery, is scheduled for execution March 28, according to Texas prison spokesman Jeremy Desel.

Murphy had escaped from "a 50 year sentence from Dallas County for aggravated sexual assault" so is again not exactly a sympathetic character.  The fifteen or so year lag time is almost reasonable as far as these things go.  Nonetheless, he did not directly commit an illegal homicide.  One might not be too upset, granting the penalty as a whole is still tainted. Still, this is a capital case. You just knew something would come up to taint it.

So, it is not surprising that we (with a precedent now to back it up, but it still is gratuitous and wrong) have another case of refusing a request to have a chaplain of one's choice in the death chamber.  The free exercise problem again joined with the establishment problem of the state having a chaplain of a specific sect. This time Christianity trumps Buddhism.  This is a capital case, so attention might matter, there no need to further bad precedent.  You have a few executions.  Let people have the chaplain of their religion.  The Supreme Court has shown some respect for the free exercise of non-Christians, but this doesn't help those who think otherwise.

The application for a stay of execution of sentence of death presented to JUSTICE ALITO and by him referred to the Court is granted. The State may not carry out Murphy’s execution pending the timely filing and disposition of a petition for a writ of certiorari unless the State permits Murphy’s Buddhist spiritual advisor or another Buddhist reverend of the State’s choosing to accompany Murphy in the execution chamber during the execution during the execution. 

And, (I started this earlier in the day) in a surprise, the Supreme Court DID block the state from denying him. The reasoning left something to be desired, especially given that just last month (involving a Muslim inmate, but they protected their rights in other contexts though the average person unsurprisingly thought it suspicious)  rejected just such a claim. I quoted the whole opinion.

Why the difference this time?  Kavanaugh dropped a brief footnote saying as a whole this time the request was timely.  Justice Kagan last time explained why the "timely" argument doesn't work and the footnote didn't substantively refute her.  Roberts and Alito didn't write separately here.  Thomas/Gorsuch simply said they would have denied the stay, not answering Kavanaugh either.  This is not how you should handle a capital case where you block an execution. Put aside that for some reason they only handed the order down after 9 o'clock at night again, hours after the scheduled execution time. Did strong public criticism (multiple horrified reactions after last time) affect them any?  A conservative leaning religious liberty group submitting a brief?

The end result was correct. There is some evidence that the Roberts Court is showing some care post-Kennedy.  Up to a point.

ETA: Reading over the Slate commentary of this case, it probably should be noted that -- by generally but not necessarily completely accepted rules -- we should not really assume who joins in a per curiam unless it is expressly stated.  Only three justices' views were expressly stated in this case. Two who dissented and Kavanaugh though few doubt the liberals joined to make five.

Now, this to me is a tad ridiculous.  Silence to me implies consent. In theory, since you only need five, maybe Kagan (who wrote dissent in the last case) dissented on precedential grounds here but did so silently!  But, maybe, in certain cases the inference would be wrong. Still, I think it is sensible policy. If a justice doesn't comment, they are silently going along.

(Texas eventually took an option offered by Kavanaugh [but see] and now denies any faith or spiritual advisor in the execution chamber, but allows them [equally] in the witness room. This advances the Establishment Clause value but somewhat less so the Free Exercise at issue. Both states have an execution scheduled next week. As to Alabama's policy now, who knows.)

SCOTUS Watch

And Also: Prisoners of Politics: Breaking the Cycle of Mass Incarceration was a bit overwhelming given the amount of material summarized in around two hundred pages. But, her push for reform here using "the best empirical information available to prevent crime and improve the reentry of former prisoners into society" is well taken. I saw her at two panel discussions at NYU recently as well; she made her points well there too.

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The end of the "March argument sitting" involved some significant cases and I will lead with that.

The biggest question is if there is a chance that a majority will be found to in some fashion reach the merits on partisan gerrymandering.  Two people I look toward for an inside perspective are somewhat split -- one is more optimistic though both think there is a chance.  Kavanaugh (who with Roberts, at least now, is crafting a new conservative moderate wing) seems to be key here. Gorsuch voiced support of independent commissions. Great.  Roberts led the dissent on blocking them not that long ago.  So, maybe that will be how they split the baby.

[One of the advocates against gerrymandering here won back in the day the first time around in the "one person, one vote" wars ... in the 1960s.]

The other issue this week that gets the most attention involves agency deference. The main event has a sort of administrative law "undercard" involving the necessary judicial review warranted in a case involving faxes. (The justices also got a view of the Stanley Cup, but as usual such news isn't referenced on their website. They did let the press know. Us peons can hear about it indirectly.) The main event is previewed here and various conservative justices have had some form of it in their sights for years. It's not judicial "activism" if you are right! There is to my understanding various ways to split the baby here so it is quite possible that a compromise will be fashioned. Overall, the basic idea that agencies should have deference over their own area of expertise makes sense. Such deference isn't absolute at any rate.

There has been a trend of sort this term that orders repeatedly had an interesting aspect or even something major.  But, this week's order list was not of that caliber. No separate opinions or statements. The one notable thing seems to be turning down (again) a mystery corporation involved in the Mueller Investigation (who submitted "the" report last Friday, so this is timely enough ... AG Barr released a brief summary, but we don't know what's in the actual report yet). Various cases, including one or more abortion restriction, are still being considered.

We also had a few decisions but a lot of unanimity (e.g., one important SEC case was 7-2). A couple things were of mild interest. The interpretation of rules of service process case explicitly noted that the losing party (that got one vote) had a few decent arguments, partially a result of inexact crafting, but that as a whole the best ruling went the other way.  A lesson: things aren't all or nothing.  Also, Sotomayor (with RBG) concurred with Kagan's unanimous opinion restraining regulation of Alaska's Nation river (in a case involving a hovercraft), but warned to not take the opinon too far.  To the degree it might suggest more regulatory restriction than warranted, she (like she did in another recent case) counseled Congress to clarify matters.

There will be a conference on Friday and an execution is scheduled for tomorrow. I will address that matter in a separate post.

The John S. McCain Opioid Addiction and Prevention Act

ETA: The Disability Justice Initiative tweeted today this: "Props to @SenGillibrand staff for sitting down & listening to members of the #disability community today. We look forward to continuing the #PainManagement conversation in a way that limits misuse without harming the #disability & #ChronicPain communities."  

Senator Gillibrand received some strong negative pushback when she announced support of "The John S. McCain Opioid Addiction and Prevention Act"  (he sponsored it, thus the name, but such naming is tedious -- how could anyone oppose something named that?).  She got so much pushback (and not just on Twitter) that she felt it necessary to respond.  Not surprising when people cited it as simply disqualifying (anyone who did so was not really too gung ho for her anyway, I would argue).

[One person responded to a comment I made about it by saying it would likely "kill" friends of his.  Yeah.  Tad overheated there. I can say that since (unlike my Twitter and blog comments some places) no one actually reads this blog. Reading into the law, including my own state's policy, how exactly will this proposal "kill" people above and beyond current practice?]

What is the problem here?  Looking at the summary, we are told that  the "bill would create a seven-day prescription limit for opioids so that no more than a seven-day supply may be prescribed to a patient at one time for acute pain."  The term "acute" received some pushback since the inference from references to wisdom tooth removal and the like was that it was something that would be completed in seven days.  This suggests the limits of official Twitter snapshots of proposals, perhaps.  Anyway:

Acute pain is a type of pain that typically lasts less than 3 to 6 months, or pain that is directly related to soft tissue damage such as a sprained ankle or a paper cut.  Acute pain is of short duration but it gradually resolves as the injured tissues heal. Acute pain is distinct from chronic pain and is relatively more sharp and severe.

That is just a quick find but gets to the open-ended nature of the term.  But, the summary of the provision (contra to one Twitter reply that I myself replied to without getting a response)  says that the person still can obtain more supply.*  Gillibrand cites her own state as a model of the law, something reply after reply seemed to skip over, and I looked it up.  Yes:

TO FURTHER REDUCE OVERPRESCRIBING OF OPIOID MEDICATIONS, EFFECTIVE JULY 22, 2016, INITIAL OPIOID PRESCRIBING FOR ACUTE PAIN IS LIMITED TO A 7 DAY SUPPLY.

A practitioner may not initially prescribe more than a 7-day supply of an opioid medication for acute pain. Acute pain is defined as pain, whether resulting from disease, accidental or intentional trauma, or other cause, that the practitioner reasonably expects to last only a short period of time. This rule SHALL NOT include prescribing for chronic pain, pain being treated as a part of cancer care, hospice or other end-of-life care, or pain being treated as part of palliative care practices. Upon any subsequent consultations for the same pain, the practitioner may issue, in accordance with existing rules and regulations, any appropriate renewal, refill, or new prescription for an opioid.

The proviso regarding chronic pain is also said by Gillibrand to apply here in some form (we don't get a link to the actual bill though given McCain supported it, some form of it should be around, right?). New York provides a FAQ.  One question specifically answered says that it is not necessarily the case that an in person visit is necessary to obtain a refill. This was an important concern. If a physician would otherwise supply a greater supply, would they not also extend without an additional visit?  The concern seems to be that many would be wary.  Thus, an essential issue here is detail.

Gillibrand voiced surprise at the opposition in part since she did not just make this up on the fly. It was looked at askance that she was co-sponsoring this with a Republican though one that from time to time comes off as sane.  As noted in the reply:

I wrote this bill in consultation with many experts and groups, including researchers, advocates, doctors, patients, and families of patients. It was based on CDC recommendations — and reflects a movement across the nation in which 15 states, including New York, already have laws that limit opioid prescriptions for acute pain.

One thing highlighted by the speakers at her rally yesterday is that she listens. I respect supporters who say this about her and take this seriously:

I have heard this level of criticism, and many of the concerns raised by patients and disability advocates were issues I had not previously heard. And I hear them now. ...

I am listening. I would be more than happy to meet with you to hear your ideas about how to make this bill better — and to ensure that it does what it was originally intended to do without harming patients. 

The proposal might simply be misguided. Perhaps, we should simply trust physicians here and that this is an unnecessary attempt to show she is properly fighting opiate addiction.  The breadth of "acute" pain alone suggests a certain gratuitous nature in requiring weekly prescriptions, even if merely by phone or whatnot. But, without more, even then, it seems a limited misstep. I respect those who are concerned that this will make it harder for people who need pain medication. This is not a trivial matter and it's part of a serious wider concern. Nonetheless, any number of policy tweaks have possible negative effects. Is this unique?  A reason not to support her?

Anyway, I do wonder how much it compares to my own state's policy. It turns out my own assemblywoman is on the Standing Committee on Alcoholism and Drug Abuse.  I am curious if she has an opinion of this proposal and if it overlaps with state policy. I sent an email to her but have not received a response.  It is granted that I could call up her office and this on me to some extent but if the office has a means to constant, they should be able to respond. Also, the questions are of a sort of detailed quality that the likely aide in her district office very well might not be able to answer.  Yes, I feel uncomfortable personally asking such things too. Kudos for those who do so.

I will try to continue to keep abreast on this issue. Doing a bit of due diligence like done here is not too hard and can be helpful.

---

* The coverage might confuse people. One publication noted that the requirement covers "the initial treatment of acute pain" but then "medical professionals would have to confirm they would not provide refills to those prescribed opioids for acute pain." 

I take this to mean that each seven day supply is separate so not a "refill" but perhaps a person can read that to mean it is a one and done deal. Serial weekly supplies amount to a form of "refill" even if by form the doctor (without needing a new examination) gives a new script each time.

Kirsten Gillibrand

Went to see her official send-off outside the Trump Tower near Lincoln Center (NYC) with various good introduction speakers including her old roommate Connie Britton. Like her partially given her long experience fighting the good fight (accepting an impressive 30 something newbie is a bit of an insult and stop comparing people to the VERY low Trump bar) in D.C. Kamala Harris is new there. Warren not as much but I think she would do better staying in the Senate making policy. All three are impressive though. Gillibrand focused on domestic matters; she needs to give a good foreign policy speech. Nothing on judges or the Electoral College (Warren suggested disposing of it.) Is it 2021 yet?

Mild Compliment Results in Attack of My Use of "Often"

[A self-labelled Republican who also has "Never Trump" tendencies repeatedly makes bad arguments in quickie posts in a blog and his comments on how court packing would violate "constitutional democracy" if done right away after the 2020 elections are of that caliber. I and others explain why here. Near the end, I provided a form of the below, in part because another self-labeled conservative explained why he finally lost patience with a resident troll. Took him a few years though.]

Justice Thomas asked a question in an oral argument earlier this week, the first time he did so in three years. I mentioned elsewhere that my opinion that he asked good questions over the years, "often" on race issues. I clarified that I meant that of the limited times he asked questions (such as a sparsely used pinch hitter), he often in that subset did so. I think he should ask more questions partially for that reason, partially since it gives a chance for advocates to address his atypical views. Also, him not asking questions EVER comes off as rude to some people. It's an unnecessary affront even if he doesn't intend it.

(A discussion of the case and a link to an article that includes his questions, minus the latest, making the case can be found here.  The blog is an impressive coverage of the Supreme Court by some high school students.*)

I'm not a fan of Thomas' jurisprudence generally and opposed his confirmation on grounds of inexperience alone (the sexual harassment issue added insult; public integrity is something basic to members of the Supreme Court) and didn't think the question posed this time that good. Basically, he flagged in case where the prosecution was found to commit racial bias repeatedly and allegedly did so again in a sixth attempt to convict that the defense used peremptory challenges against white jurors. As noted by Sotomayor, not only is that side not "on trial here" but there were few black jurors to strike anyhow.  But, that doesn't change my basic sentiment.

This is all said because when I did so someone strongly refuted my comment on Twitter. I noted that I didn't support Thomas generally, but did in this specific way. (Looking it up: "He asked some good questions -- often in race related questions -- over the years.")

Okay. Well, what are examples of his horrible questioning? The person pointed to the questions he posed that very day. That doesn't really refute my comment. I get the idea the person had no actual knowledge of his questioning (I alluded to questions Thomas posed in cases involving the KKK and public usage of crosses as an example.) The person then attacked my use of "often," noting in effect it would be curious if anyone else in the universe would use the word that way.

I understand the reason people are loathe to admit someone like Thomas is right even when he says that Bryce Harper is a dweeb, but at some point this sort of thing is tiresome. After repeatedly going back and forth with the person, harping on my use of "often" led to a "mute" from me.

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* Some people, including some lawyers, ridicule oral arguments as pointless. Besides serving as the one time the general public gets a chance to listen (or see, in courts that deign to videotape) to the judges, there are other values to such arguments. Repeatedly, judges themselves have said so. I just read an old essay (found in a version of Judges on Judging") by Justice John Harlan II saying so.

At some point, I take them at their word -- they find oral arguments helpful. To toss it out there, one Supreme Court journalist suggested Justice Breyer might ask some questions with Justice Thomas in mind, the two sitting next to each other on the bench and at times chatting during oral arguments (see the High School SCOTUS interview with Chris Geidner).

SCOTUS Watch: It's Almost Spring Edition

There are various books on justices coming out (Roberts, O'Connor, Stevens [autobiography] and Thomas [later in year], after another biography of Ruth Bader Ginsburg came out last year. I suppose Sotomayor will also release some other autobiographical work or something too. Meanwhile, including by the person I recently referenced seeing, various criminal justice books are or did come out. For all you candidates out there.

Meanwhile, there was some Supreme Court action this week with another conference scheduled for Friday and more orals next week.  Following recent trends, there was news even when they only released orders. The big news is probably that they will take up non-unanimous juries (one state left though the case covers Louisiana, the John Legend supported change not retroactive).  Legend argued that they promoted racism, dissenting voices purposely blocked out as a matter of white supremacy. Unlike more popular non-usage of grand juries or civil juries for small claims, this has a good shot of going his way because it is an outlier to have a federal requirement not apply to the states.

The other cases are of interest as well including rules regarding the right to make an insanity defense. As she has over the years, Sotomayor also has a solo statement concerned about criminal justice issues, in this particular instance evidence a racist juror was involved in a capital case. The government was also asked to add their .02 in a few cases, including one involving alleged religious discrimination in employment. The latter issue has been something a few conservative justices have also flagged in various contexts though apparently not when someone was about to die.

whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry

We had two decision days. A thing that stood out was that the two Trump picks split in all three cases on Monday though only as a matter of scope on the big case of the day. The case had a somewhat narrow specific question regarding the statutory power to detain certain non-citizen aliens (including lawful residents; not just so-called "illegals") without bail hearings. But, as noted here, as well as the dissent (Breyer dissented from the bench for the liberals), there is a wider principle and likely future effect involved. Likewise, to the degree the provision can have various possible meanings, what might be deemed "Footnote 4 constitutional avoidance" should be guided more Breyer's way.  This is so even if the ultimate solution here is changing the actual law.

Kavanaugh wrote for the Court with Gorsuch writing for the "High Federalists" (himself, Alito and Thomas) in a maritime liability case.  It's useful to remember that (like in today's special case so bad everyone but maybe Thomas can join in against racism) the problem with the two Trump picks was not that they will always be wrong.  Kavanaugh was a divisive partisan hack who bullshitted (at best) Congress and had a strong case that he was a sexual predator.  Gorsuch filled a stolen seat while being a run of the mill Federalist Society baby (plus, he comes off as smarmy).  So, e.g., maybe Gorsuch will turn out (inspired in some way by being on a court of appeals covering over seventy tribes) friendly to Native Americans. Not going to suddenly handwave how he got there.

There was less heat in today's opinions, one a per curiam (with merely Justice Thomas not joining the punt), the other a unanimous debt collection case.  My interest there was Sotomayor's brief concurrence in effect saying "eh ... not sure ... but the majority does the best job we can and if Congress thinks we are wrong, they can fix it."  A honest response to various statutory questions which result in what is a basic (if less exciting for most) part of the justices job -- someone has to settle these questions. They very well might not be right each time, but they are "Supreme." Plus, in these statutory cases, a legislative fix (if at times hard to come by) is possible.

Notable oral arguments. Along with next week, the Court deals with some more racial and political gerrymander stuff. The results are unclear. Next week also brings the sensitive question of the reach of "deference" to federal agencies. There is a range of options there as well.  As noted above, today also involved an apparently blatant case of racial discrimination in jury selection, which gives conservatives a chance to join in against racism. Maybe, Thomas figured he was the only one somewhat sympathetic and that is why he asked a question. He last did it in regard to the reach of a regulation on guns with only Sotomayor joining his dissent (and not the 2A portion).  He has asked good questions in the past. And, even if they are bad, doing so provides advocates a chance to respond to his atypical views.  OTOH, maybe Breyer serves as his mouthpiece at times?

Spring begins 5:58 P.M.

Happy Holidays! (March 17-19)

St. Pats (Irish), St. JP (Irish/Italian mutts), St. Joseph's (Italian).

Betraying Big Brother: The Feminist Awakening in China

I added two books to the side panel covering civil rights history, one involving an infamous blinding of a returning black serviceman in the 1940s, and the other covering the feminist movement in China in recent years. A video of the "feminist five" is included and feel it necessary to also cover a certain "armpit" contest referenced in the book.

Two More Book Events

I really don't take advantage of what the city has to offer but have my moments. Strand Bookstore again provided an author appearance (this time with the added value of former president of Planned Parenthood, Cecile Richards) for a $15 gift card or the book ($25). Not sure Amber Tamblyn's feminist manifesto is worth reading, but appreciated the opportunity. The NYU panel on a criminal justice book (with the author, activist Shaun King and a professor) was better. Not only was it free, but they had a free lunch (choice of sandwich [hummus for me] with cookie, chips and water/soda). Plus, doggies at a local dog park.

And Also: Nice this was public again but the usual b.s. on the "problems" of cameras and no, Justice Kagan, you don't explain all your decisions. Questioning seemed a bit brief given the opportunity. Let's see how the being considered ethics rule goes.

SCOTUS Watch: Future of Religious Clause Jurisprudence

There has been a lot of interesting actions outside of regular opinions (relatively unsurprising, including the three today, though RBG having two shows she was active during her time "off"), including today. Kavanaugh (with Alito and Gorsuch) agreed in not taking a case that denied preservation grants to religious buildings in particular, but flagged their interest in broadly defining equality in funding matters long term.

He (continually a blot on the Court and the U.S. Senate), however, noted special facts here and the value of letting the issue "percolate" in the lower courts some more. I continue to respect Sotomayor's dissent in the Trinity Lutheran case, but either way, surely government funding of a church is more controversial than playground funds! I also note an interesting article (h/t Religion Clause Blog, which has a lot of resources) entitled "Christian Legislative Prayers and Christian Nationalism." Also, this piece on the Peace Cross oral argument (the lower court opinion is also worth reading). Patent case also taken.

Also: One case had some interesting aspects, including the two most conservative justices on the side of the workers in dispute involving a relatively small sum but broader implications. The company argued (FN2) the overall solvency of the workers retirement system was at stake. The dissent also took a dig at "Chevron" deference, which wasn't really necessary to decide the matter here. Note the brief/filings link.

Sen. Biaggi Budget Event

I simply have not paid much attention to local government, which is on me but also because there was no real neighborhood invitation to do so. For instance, where are the flyers or notices of local meetings or meet-ups with members of the city council or state legislature? I think safe seats hurts the situation more so. Two upsets involving my own district offers a chance for me to pay more attention. Sen. Biaggi noting the below event was new underlines my point here on both fronts.

I went to an event at Manhattan College (which is now in the Bronx) where twenty seven speakers (I briefly took notes) told state Sen. Biaggi (who upset Jeff Klein, who led the "independent Democrats" who caucused with Republicans) talked about their concerns. Multiple union representatives supported a tax break to promote tv/film. Multiple people had some sort of connection to religious groups. Most represented some group but each as a whole did a good job promoting their causes. It was an educational exercise in civics though one media representative was a tad more negative (including saying Biaggi, basically as a newbie, will bring in a lot less money than her predecessor).

Nadine

This was on late night on a commercial movie channel -- movie is under ninety minutes, so it's fairly crisp and has a great cast with Kim Basinger shining. From late 1980s. I also saw part of the Black Klansman movie and it was rather loyal to the book. Actually, rather straightforward for a Spike Lee joint. A bit bored with it. Saw good Green Book documentary (on actual green book) on Smithsonian Channel. Is it really March already?

Billie Coble Executed

With twenty-five executions last year (dollar and a dream ...), it is probably quite possible for anti-death penalty justices (they can spread it around) cover each one this year. A three-time killer (a family matter, but one was a police officer) might not seem much trouble legally or otherwise. The system is the problem, but even this specifically can be. He was on death row for thirty years: that alone is a problem Justice Breyer et. al. covered. And, there might be due process issues. Final appeal rejected without comment and he was executed.