Mail-In Voting

I saw someone ask when people will find it unbearable to be stuck inside and ignore the rules. This has been going on for about a month and the rules are mixed.  It is not like I, who am in an area particularly hit (NY) must stay at home like a prisoner 24/7.  Yes, this morning, I was waiting outside with my non-medical mask ($2.50 at the corner discount store, which appears to be a sizable mark-up given one can get a box for not too much) on to get into the supermarket.  The person in front of me might have had an Eastern European accent -- was it nostalgic for her?  Ha ha.

Really, it seems a bit soon to deem it impossible to bear or something. Part of this might be how sudden it all was -- early March, it seemed like a mild problem really (John Oliver had a segment cautioning us to be moderately concerned).  Then, he is taping from home. There was evidence that the problem would come (both NYT and Washington Post has long articles on how Trump et. al. screwed up) earlier, but still.  Then, mid-March both the NYPL and public schools closed. Such was a big red flag.  The mayor today said the schools will not open for the rest of the year.  The governor, pissing contest, said that is the state's (aka HIS) call and for now officially it will be the end of April and wait and see. 

Anyways, maybe we can calm down -- people have had to deal with extended periods of crisis in the past and we can too.  This is a long lead in to the intended subject of this entry -- vote my mail.  The Alaska primary was all vote by mail.  New York will no excuse absentee voting in June, when local primaries and the now more symbolic than before presidential primary will take place.  We cannot simply change the voting to that given constitutional issues but there is room to do so to deal with a specific emergency and so the governor did by executive order as the legislature was probably ready to deal with it anyhow.

There is push for national action here (Rick Hasen, Election Law Blog, in the past wary of complete vote by mail):

Most immediately, in light of the uncertain time frame for disruption of life and political activities due to the coronavirus, Congress should pass a law requiring states to offer no-excuse absentee balloting for the November elections. Congress has the power to do so, and it should fully fund the efforts. The bill has to be drafted carefully to protect all voters. But time is short. For this to happen, it must happen quickly.

Congress has clear authority to provide rules for congressional elections, can provide funds for elections in general and has some degree of power for the rest per enforcement powers in the 14A and so forth.  States have broader power over presidential elections though how much power (especially without the Democratic governors in certain places to veto) to change it at the last minute is less clear.  The process is touchy as noted in that article as well as others:

A law requiring each state to offer a mail-in balloting option would have to be carefully crafted. It has to deal with the language provisions of the Voting Rights Act, which require language assistance for voters whose first language is not English. As Dale Ho argues, the rules for processing those absentee ballots have to be fair so voters are not disenfranchised by administrative error. And as Dave Daley argues that vote by mail is not without its problems for minority voters and other vulnerable voters, meaning the congressional legislation should address issues like reaching voters who are not regularly served by the postal service. Sen. Ron Wyden’s bill is a good start in thinking about what final federal legislation should look like. 

I have seen some people who basically think national voting by mail, full stop, is so f-ing obvious.  A few states completely have it in some form, many more have no-excuse absentee voting.  There are, all the same, some pro/con things here.  The pluses is that it is generally easier, seems to expand turnout (see Alaska, perhaps) and is cheaper (imagine all those poll workers).  This doesn't mean it will be easy right away -- it will require a lot of money and resources to have it so much more broadly in the short term.  Plus, many -- especially many African-Americans apparently, are used to it and would be wary of change.  Trump and Republicans are demonizing it but even some  support some form.

The U.S. Election Commission is working to help handle the greater influx of mail-in ballots, which already are used by tens of millions of people a year.  Two videos on the page, e.g., suggest the various complications.  See also, the ACLU "keeping calm" page.   Anyway, back to the pro/cons.  There are cons.  One might seem trivial but there is the traditional practice of in-person voting to have a sense of civics and engagement.  I would not handwave this even if it is a sort of emotional subjective thing on some level.  There is some financial concerns.  Concerns about the ballots being received on both ends, perhaps delaying the results (something of a new ethos to get used to -- see how the Wisconsin results were "embargoed" for like a week).  There is some security concerns including worrying about others filling out ballots or pressuring you to do so.

Disparate effect on some populations—Mail delivery is not uniform across the nation. Native Americans on reservations may in particular have difficulty with all-mail elections. Many do not have street addresses, and their P.O. boxes may be shared. Literacy can be an issue for some voters, as well. Election materials are often written at a college level. (Literacy can be a problem for voters at traditional polling place locations too.) One way to mitigate this is to examine how voter centers are distributed throughout counties to best serve the population.

This is touched upon above and in various of the linked accounts. There is a need to balance dealing with something like the Native Americans issue with security concerns (Rick Hasen is wary about unregulated mass collection of votes, which in some fashion screwed up a North Carolina election).  There has to be a means to deal with the likely increase of errors on ballots.  You are not there in person to fix various issues or to address some sort of confusion.  That concerns me too.  But, I have also heard good things about the states that already do this.  Even National Review had a well received op-ed supporting mail-in and curb-side voting. 

(Talk about change -- New York City will have there form of instant run-off voting for local municipal elections this primary season.  Get that election hotline ready for those calls!)

That state legislature page summaries:

Five states currently conduct all elections entirely by mail: Colorado, Hawaii, Oregon, Washington and Utah. At least 21 other states have laws that allow certain smaller elections, such as school board contests, to be conducted by mail. For these elections, all registered voters receive a ballot in the mail. The voter marks the ballot, puts it in a secrecy envelope or sleeve and then into a separate mailing envelope, signs an affidavit on the exterior of the mailing envelope, and returns the package via mail or by dropping it off.

Also, one number to get a sense: "Of the more than 47 million voters who cast ballots early in 2012, 29 million ballots were cast by mail."  I saw reference earlier that there is a general idea that there should be some ability to drop off ballots somewhere too (those people who need language help, perhaps, or who need one of those diverse devices the NYC polling place had for disabled voters, perhaps).  I might be wrong, but do not think various Democratic leaning states lack all mail voting merely out of misguided conservatism.  There is likely some logic to a mixed system. There might be a trend all the same.

For instance, though the problem still was only very limited, I saw in the past the usual liberal suspects note that Republicans in various places hypocritically supported absentee voting which was much more likely to have some sort of voting fraud than in person voting which they harp on.  I do wonder the likelihood of third parties filling out voting forms.  Some people will be confused, others would not mind giving someone a sort of "proxy."  Maybe, that is okay on some level -- it is done in legislatures to some degree.  But, again, will it be totally consensual and aboveboard? 

The bottom line, at least in the current primary season and maybe November, is that there is just a wider special reason for being concerned about people showing up at the polls. Normally, there are reasons to allow people to vote absentee, especially if the alternative is that they do not vote and/or have to wait on line at time for hours.  Not everyone has a polling place a few blocks away [back in the day, it was around 10 minutes away!] usually with like no wait without any worry about making the times.  But, again, that is not total vote by mail either.  Note "option."

Can be different during a pandemic or some other emergency. Lots of polling places simply were not open during the Wisconsin Primary/Travesty.  It very well might have been best to simply have  an all mail-in primary there with perhaps certain designated spots to deal with people with special needs.  This is the rule for one or more of the "all mail" states at any rate to my understanding (Colorado?).  And, again, I have heard some people downright bragging about how good it is.

Calm down. Let's have an option, funds for special electoral needs and plan ahead.  Wisconsin should have been something that was legislatively set so that a certain danger clearly gave electoral officials and/or the governor clear power to delay and use mail with the financial and so forth backing that would have made it possible.  We need to be ready for the special needs and tricky situations of November.  It is very well possible we simply will not know on Election Day night who won.  That should be fun.

But, so be it.  It's my birthday, after all, so who doesn't like "fun."  Anyway, like talk of the baseball season coming back via some curious Arizona based scenario (Gary Cohen is dubious at the moment as am I), it is a tad premature to worry about that with so much more to worry about now. And, yes, that would include the basics of voting now and the days to come.  Can I vote for Warren in June?  No really, I'm all-in for Biden, just want that.

In-Lawfully Yours

Up Channel has "new" films on Sunday nights at 7/11 that are actually not new but promoted as new. For a few weeks now, the picks have been overall pretty good. This week we had a city girl not much into God come to help her old mother-in-law (as in ex -- the hubby cheated on her) move after the father-in-law died. She falls for the new minister, whose deceased wife was her sister-in-law. Thus, the punny title. Various familiar faces including two people in current shows and two from old shows. It has light touches mixed with a lot of serious content. Well acted with the story pretty well paced too. Sorta topical.

Hachi: A Dog's Tale

This was the independent film this Saturday on the classic/modern indie tandem on PBS. It is actually based on a true story and turns sad later on. The bit with the ball is sorta hilarious including the timing ("he fetched, his life is complete"?). Sorta think the whole last part is more credible in 1920s Japan than the modern era. There is even a reference to a newspaper article and you expect some sort of response (crowds? concern by animal control?) but nothing happens. The last third didn't quite work but as a whole I liked it. Good performances and sense of place. The scene with Joan Allen and Hachi late is tear jerker, for sure.

Happy Easter

Two Competing ERA Lawsuits

And Also: Sanders after the Wisconsin Primary/fiasco (results not in yet) suspended his presidential campaign but the primary season still lingers on.  Thus, Alaska's updated primary was Friday, done via mail.  The results are in: 55/45, Biden winning.  Ranked choice voting seems to have left only the top two with 15 delegates at issue.  Last time, Sanders won the caucus in a landslide; primary this time with more voters participating. This amounted to around nineteen thousand voters, still rather paltry even for Alaska.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress:

"ARTICLE — "Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. "Sec. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. "Sec. 3. This amendment shall take effect two years after the date of ratification."

A class on the Constitution on C-SPAN tonight referenced a lawsuit by three states (Illinois, Nevada and Virginia) that mirrored an earlier lawsuit last year by three other states (Alabama, Louisiana and South Dakota).  The first lawsuit, with support of the Trump Justice Department, deemed it unconstitutional to extend the time limit to ratify the ERA. The new lawsuit deemed it unconstitutional to have a time limit outside the amendment itself.  It says the amendment should be formally deemed ratified. As noted by the article: "The National Archives has not taken action on the matter, citing the Justice Department's guidance. The archives said Thursday it cannot comment on pending litigation and referred an inquiry to the Department of Justice, which declined to comment."

Note the joint resolution is separate from the amendment, multiple amendments having such a time limit as part of the text.  This is a notable matter and suggests Congress can extend the time limit in the first case as was done (to no effect) for a few years the first time around.   The time limit concept itself was deemed logical in a Supreme Court case arising from the Eighteenth Amendment (Prohibition), Dillon v. Gloss. The unanimous opinion argued there was an implied principle in Article V that the proposal and ratification process be relatively contemporary:

The plain meaning of this is (a) that all amendments must have the sanction of the people of the United States, the original fountain of power, acting through representative assemblies, and (b) that ratification by these assemblies in three-fourths of the states shall be taken as a decisive expression of the people's will and be binding on all.

It reasoned out that it would be illogical to have an amendment ratified that was proposed years before -- one example was the congressional pay amendment proposed in 1789 which was eventually deemed ratified (though note only after a congressional concurrence) as the 27th Amendment.  The opinion's take to me is logical and though the limited reach of the amendment makes it seem trivial (in time more than enough states ratified to make up for the long ago ratifications), it would seem more proper for Congress to have proposed it again.  The clock would have restarted under this logic in 1980s and the end result very well might have been the same.  As the Supreme Court noted:

"that an alteration of the Constitution proposed today has relation to the sentiment and the felt needs of today, and that, if not ratified early while that sentiment may fairly be supposed to exist, it ought to be regarded as waived, and not again to be voted upon, unless a second time proposed by Congress."

The Supreme Court in the 1930s, here dealing with the never ratified Child Labor Amendment, decided 7-2 that the principle was sound but it was a political question for the Congress to determine.  The time limit, including perhaps a new one (as the House recently deemed appropriate), would be a necessary and proper determination of this principle -- "the question of a reasonable time in many cases would involve, as in this case it does involve, an appraisal of a great variety of relevant conditions, political, social, and economic, which can hardly be said to be within the appropriate range of evidence receivable in."  It also left to Congress to handle what to do if any states ratified and then later on rescinded.  But, it did decide that if a state at first rejected it, it could later on ratify.

This reflected historical practice and does not clash with the text of Article V.  A final question involving allowing a lieutenant governor to break a tie was itself a matter the Supreme Court was evenly divided on by a quirk that might have  been a result of a justice being away.  Four justices, however, did think it appropriate to decide that question, thus the four that thought the whole amendment process was a political question did not carry the day.  Just what the courts could decide here amounts to an academic question and perhaps even what was decided to be a political question might not hold up over eighty years later.  But, the logic is sound and should guide us today all the same.

So, where does this lead us regarding the two disputes, the first filed in Alabama and the second in D.C., so a conservative/liberal split is possible?  The broad discretion given to Congress regarding contemporary ratification questions would suggest an extension of the deadline would be valid.  But, that would likely require the current Congress to do so -- the first extension was rejected by a lower court; the Supreme Court held up the judgment and then deemed it moot when no more states ratified and the extension ran out.  Anyways, the new resolution expired, suggesting a new one is needed. Congress can also decide what to do with the states that later changed their minds.  RBG publicly deemed it best just to start over, it seeming unfair to count the lagging states but not the rescission.  I agree Congress should start over but question if states really have the power to call "backies."

On the latter point, I'm in accord with second lawsuit's arguments though precedent and reasonableness might very well warrant congressional discretion here.  Congress provides a national referendum here on determining if the process is still ripe and multiple states taking back their ratification can be a discretionary factor in so judging. And, as the complaint notes, the deadline is not part of the amendment; multiple amendments actually have deadlines in the actual text.  The states then argue that even providing a time limit is inappropriate. 

The last part is a bridge too far -- the idea that the very idea of a time limit is unconstitutional, in fact an abuse of federal power ("And given the Framers’ concern for protecting state prerogatives against federal intrusion, any doubts about the scope of congressional authority should be resolved in favor of the States.")  That is a bit dubious; as is the complaint not even referencing Coleman v. Miller.   I can see why -- a forty year time lag would raise questions regarding contemporaneous ratification, which it suggests can be done in this fashion ("No limitation of time for ratification is provided in the instant case, either in the proposed amendment or in the resolution of submission.")  

If the courts determine the states have jurisdiction and find it appropriate to decide the merits, it should follow the 1930s precedent and leave the whole matter to Congress. Under this logic, until Congress decides, not accepting ratification as official and the duty of the National Archives to follow take notice of is appropriate.  A deadline in a separate resolution would be appropriate and it ran out.  However, if Congress did pass a new joint resolution, the final three states could be counted.  This to me would be bad constitutional policy, but under its power to do.  And, just how bad would be open to question too since we are dealing with a national body and the Supreme Court itself deemed the general principle already in place.

Though there probably are a few Republican senators willing to support the ERA, realistically, this is yet another matter that will largely rely on the 2020 elections.  A 28th Amendment is a realistic possibility though just what it will mean is an open question.  Finally, there is the theory that Congress should (must?) only pass a new joint resolution by the same margin necessary to pass an amendment and/or when the number of states that allegedly took back their ratification are replaced.  I find either one of those principles dubious (fwiw, the first extension only had a majority).

First, the Supreme Court will deal with faithless electors.

Atkins v. Virginia

Executions of mentally retarded criminals are "cruel and unusual punishments" prohibited by the Eighth Amendment.

This was a 6-3 opinion and the focus of this discussion is to reply to the dissents.   Rehnquist wrote separately to "to call attention to the defects in the Court's decision to place weight on foreign laws, the views of professional and religious organizations, and opinion polls in reaching its conclusion."  He grants that there was some reference to this in past precedents but wants to rely on legislatures and sentencing practices alone in determining the reach of contemporary standards of decency.  Given his druthers, Scalia (who joined Rehnquist's dissent) probably would toss the rule totally and only disallow punishments deemed cruel and unusual back in 1791 though admitted maybe not something like flogging. This actually was still around in the 1960s in prisons and corporal punishment in school has yet to be deemed unconstitutional. 

Anyways,  the majority didn't just invent the criteria. It, e.g., cited opinions by Justice White, from from some liberal.  Also, as seen by reference in a footnote, it is something of a toss in.  "Although these factors are by no means dispositive, their consistency with the legislative evidence lends further support to our conclusion that there is a consensus among those who have addressed the issue."  Reference to international experience was cited at least as far back to Trop v. Dulles in the 1950s.  There is a long history (including by Rehnquist) involved here and it is reasonable if open to some concerns (what method isn't?) to use international practice to help determine the question.  "Foreign" law is repeatedly cited in state courts as informative (such as practice in other states) as is academic writings etc.

The use of some things as a sort of "plus" (matching foreign jurisdictions that cite our law) is of little note except for those who exaggerate its importance or suggest some sort of feeling of insult ("our law!").   Justice Scalia in his own dissent basically rejected various long held precedents, again precedents that both liberal and conservative leaning judges accepted (proportionality review was supported by Powell and White).  The dissent begins with the usual "making shit up" allegations:

Today's decision is the pinnacle of our Eighth Amendment death-is-different jurisprudence. Not only does it, like all of that jurisprudence, find no support in the text or history of the Eighth Amendment; it does not even have support in current social attitudes regarding the conditions that render an otherwise just death penalty inappropriate. Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members.

The opinions Scalia doesn't like, even the majority in this very case, repeatedly cited text and history, showing perhaps the protean nature of such things, but if he wants to cite it, he can be hung by his own petard.  The majority also provides support in current social attitudes.  It is yet again just a matter of great dispute with competing visions.  This isn't enough -- there has to be allegedly a basic lack of good faith.

Scalia's dissent as is often the case begins by noting the heinous nature of the crime but the majority summarized that too.  It then notes that there was much focus on his alleged mental retardation but it was deemed not mitigating enough to avoid the death penalty.  Even after the case was sent back, he was found not mental retarded enough though prosecution misconduct charges led to commutation to life in prison.  But, as with other things (such as insanity or denial of certain due process rights) the opinion determined a blanket rule was required.  One can debate the specifics as applied; nonetheless, the general principle is mundane.

It is unclear what "before today" rules were in place -- basically, there seems to be a dispute over some of the rules (e.g., what to use to determine the question) and there was some evidence of that in past opinions.  The reliance of the justices' own judgment is seen as outrageous egotism, but that is standard too.  Judicial review involves judges applying a range of things and is not just reliance on legislative practice or whatnot.  If basic due process rules are violated, they are violated.  Again, suggesting the likes of Justice White are lax on crime is hard to take seriously here.  Finally, Scalia (with Thomas here) appealing to judicial modesty is hard to take seriously.  He whines a lot though.

A basic concern here was that the mental retarded were not culpable enough to warrant the death penalty. This doesn't mean they lacked merit of serious punishment.  But, for quite some time death was put to a higher test.  We can debate the logic of an absolute rule here as compared to flagging it to the judge and juries as a matter to be carefully concerned about.  This is a matter of degree.  One way used to determine how "unusual" a practice is would be by looking at current experience. This results in debate over just how much is enough and some dispute on how to split the numbers. And, how new the "consensus" might be. This all is perhaps the weakest strand at times in these opinions.

The opinion was written in 2002. "The parties have not called our attention to any state legislative consideration of the suitability of imposing the death penalty on mentally retarded offenders prior to 1986."  I'm against the death penalty, including as a constitutional matter.  But, that is rather new. Compare, e.g,. the lagging experience of death penalty for rape in the 1970s.  Also, there is fear that this is a "one way ratchet," but as Rehnquist noted in the oral argument, even if the Supreme Court decides to declare it unconstitutional, a state can later on pass a law and argue that now current trends warrant a return. The principle should and need not be one way.

After making an argument for consensus, the majority cites "some characteristics of mental retardation undermine the strength of the procedural protections that our capital jurisprudence steadfastly guards."  At one point, Scalia in answer to this discussion notes: "But surely the deterrent effect of a penalty is adequately vindicated if it successfully deters many, but not all, of the target class."  The telling "surely" to make the open to dispute allegedly obvious.  As with the so-called "flabby" nature of "special risk" (a perfectly standard term), again, this is a judgment call.

Basically, it is just one of a myriad of times when judges have to determine if due process is present, something that will be open to dispute.  Or, we can assume bad faith.

Massachusetts Birth Control Cases

Also: This book about the "Spanish flu" and how the military had such a hard time fighting it sounds good.  Also, I enjoyed the 1930s bio by Eve Curie of her mother.

As with Carey, I have in the past spoken about Eisenstadt v Baird , but want to talk a bit more about it here.

I will try not to repeat old ground too much, especially since I already commented about a predecessor in the last contraceptives entry.  For instance, the 1917 opinion (see Eisenstadt itself) cited in the Supreme Court case) that stated in respect to the original law that the "plain purpose is to protect purity, to preserve chastity, to encourage continence and self-restraint, to defend the sanctity of the home, and thus to engender in the State and nation a virile and virtuous race of men and women."

As noted last time, unlike New York, Massachusetts did not have an exception for physicians, which caused problems after Griswold.  The core of the opinion was that married couples have the right to use contraceptives, which at least suggested some right to obtain them. To skip ahead, Carey broadly protected use and distribution, even to unmarried minors, even by non-physicians (at least in respect to non-prescription contraceptives).  The opinion (and the nose counting, including Justice Powell's concurrence, suggested a majority agreed) differentiated here from abortion, which very well might cause problems (such as if a medical assistant or nurse distributed an abortion pill) up to today.

Massachusetts, however, applied things in a more narrow way:

The statutory scheme distinguishes among three distinct classes of distributees -- first, married persons may obtain contraceptives to prevent pregnancy, but only from doctors or druggists on prescription; second, single persons may not obtain contraceptives from anyone to prevent pregnancy; and, third, married or single persons may obtain contraceptives from anyone to prevent not pregnancy, but the spread of disease.

So, anyone can option contraceptives from anyone to deal with the spread of disease [the old law had no exception at all], single persons cannot obtain them from anyone to prevent pregnancy and married persons can but only from physicians.  Recall again that "disease" was in New York given a broad meaning* that make the two categories basically overlap -- pregnancy is a "health" issue so preventing it is as well.  Health/disease really have no basic difference here though talk of the "spread" of disease suggests the usage of condoms to prevent venereal disease.

There is a wrinkle here though that curiously was not covered much at all (though the Supreme Court opinion referenced the matter) -- Massachusetts might have not provided any exception even for physicians regarding conception, but a follow-up case (1940) did note that prevention of disease is another matter.  Thus, even if pregnancy would cause special dangers to a pregnant women, sale/distribution was blocked.  But, the very same item could be provided to prevent the spread of disease, specifically venereal disease. The case involved a pharmacist being charged with sale of condoms so marked. No similar case in Connecticut was apparently decided and reference was made in the oral arguments  that there were a few prosecutions involving the sale of condoms.  But, there still seemed to be a general understanding that such practice was acceptable. 

The physician only provision was upheld by the state supreme court by split decision in 1970 as a valid health measure.  The discrimination against the unmarried was upheld by a narrow reading of Griswold, which even then was iffy given Stanley v. Georgia emphasized privacy exists for individuals too.  And, CJ Burger in his solitary dissent (Rehnquist not there to join him) on some level seems to make a good case for this.  Maybe, it was somewhat overbroad (condoms?) but as noted in the oral argument, even the foam at issue could cause rashes or the like.

There was a mostly forgotten First Amendment argument that only Justice Douglas addressed at the Supreme Court because he gave a sample after a lecture.  The state judges took it more seriously, splitting the baby (the dissent wishing to go all the way) by protecting his display but not distribution (Douglas argues technically he was arrested before it was taken away; Burger notes Baird admitted he had the intent to have the woman take it away).  The lower federal court upheld the distribution charge as non-protected action.  The state court avoided deciding the Eighth Amendment argument since he was not sentenced at that time; the three months he later received was absurd.

The Supreme Court decision is mostly remembered as holding that there is an individual right to privacy here, so denying the right to birth control to the unmarried was unreasonable.  It rested on equal protection grounds so did not formally say it was a fundamental right as such.  But, it did say that it was an illegitimate public purpose to deny it to the unmarried on morals grounds simply because it is a bad choice. It was also deemed a bad fit to fight adultery (e.g., the punishment was clearly extreme vis-a-vis the punishment for adultery, "plus contraceptives may be made available to married persons without regard to whether they are living with their spouses or the uses to which the contraceptives are to be put. Plainly, the legislation has no deterrent effect on extramarital sexual relations").

But, what about that physician requirement?  Baird had some medical training and worked for a contraceptives company for a time, but he was no physician.  Plus, it wasn't on the record that the woman he gave it to was unmarried.  During the oral argument, his attorney argued in part that the law clashed with federal policy that promoted contraceptive use for the poor, including at clinics where a physician was not available. The discriminatory effects on married women who could not afford physicians was also cited and in fact per an article I referenced before was actually in an original draft of the final opinion.  But, Justice Stewart pressed to remove it, not wanting to raise more wealth discrimination claims.

The dissent in the state court and the lower federal court that did strike down his conviction basically argued the physician requirement was irrational and basically put there to fix the old statute to the minimal degree necessary to fit with Griswold. The law as a whole was really still a morals law.  If physicians were needed for health reasons, why didn't the unmarried need to use them when obtaining them for health reasons?  Plus, there were already laws in place regulating medical drugs and such; what specific about birth control needed this special rule?  And, it was overbroad for some things, such as condoms.  

In a somewhat forgotten portion of the Supreme Court opinion, a bit of this was also tossed in, though as Burger notes, not too much time is spent on it. But, as I said, yes, if it was just some health statute, it was done in a suspicious way taking it as a whole.  Justice White (and Blackmun) simply said that there was a constitutional right of access and the law illegitimately burdened it as to non-prescription contraceptives. For something like a birth control pill, a physician requirement would likely be reasonable.  The woman's marital status was unclear so that was besides the point.  No need to reach out to deal with the issue of the right to privacy for the unmarried though White accepted it as precedent in his Carey concurrence.  

I think you can craft some plausible reason for a physician requirement, if evenly applied, since they could counsel and advise patients on use.  Griswold specifically protected use for married couples via a clinic that involved a physician.  This might even be true as to condoms that were intended to be used for birth control reasons. The lower federal court ridiculed the physician requirement here because condoms are not deemed to be risky items but birth control clinics did not just prescribe things or insert (such as IUDs) as necessary.  They also counseled on birth control.  It might be somewhat unclear why this as compared to numerous other health related behaviors requires physicians even when non-prescription items were used. Legislative discretion and all that can be offered here. 

And, there was some idea -- especially right after Griswold -- that there was not even a fundamental right for the unmarried to use contraceptives at all. Thus, as to them, the rules was open to more flexibility.  And, the only item that seemed to be at issue in that third category are condoms which for the purpose of prevention of the spread of disease arguably needed less physician involvement.  Plus, given the spread of disease was more directly a matter of preventing harm to third parties, a lesser barrier to use here would make some degree of sense.  OTOH, though maybe it was covered in briefing, the opinions/oral argument did not so parse things.


This sort of heavy lifting was avoided, probably for good reason as a whole. Mixing the constitutional rights involved and the whole history involved, as seen in Carey, basically the decision to use birth control was being singled out and it was illegitimate to do so.  A more carefully crafted law without such baggage might be imagined but was not present.  And soon enough, a broader individual liberty interest was upheld to make the whole thing somewhat besides the point.  

Until next time -- you know we will return to these cases again.

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* To remind: “Disease,” by Webster’s International Dictionary, is defined to be “an alteration in the state of the body, or of some of its organs, interrupting or disturbing the performance of the vital functions, and causing or threatening pain and sickness; illness; sickness; disorder.”

RIP: John Pine, Sanders' campaign & Wisconsin Electoral Legitimacy

Stephen Colbert, who had a great interview with Conan last night in part bonding over their scientist fathers, recently wished this singer well as he was reportedly put on a ventilator.  Unfortunately, he has died.  I was not familiar with his work, but can see why he received so much respect.

==

(The young photographer had a moment of fame.) 

The main blame for the election f-up in Wisconsin yesterday ultimately is in the hands of the Wisconsin legislature, who had a chance to work with the governor to address the situation, particularly by agreeing to postpone. The U.S. Supreme Court and probably to a lesser extent the state supreme court worsened the situation, but they were dealing with an imperfect means to address the problem that the legislature created and aggravated.  This should be remembered in November and as more is done on the federal level to help address and prepare for the problems that in some fashion will arise  in the November elections. This was bad.  A major FU to democracy and basic decency.

===

Sanders suspended his campaign today, perhaps pushed by talk that Biden is vetting vice presidents and the clusterfuck of Wisconsin.  Listened to his statement, followed by a nice statement from Biden. 

He spent most of the time promoting his message and saying it has had success in the polls among younger voters. Then, he dealt with the reality of him not having a realistic chance of winning & suspending his campaign.  He did note he will stay on the ballot (and the rules as I understand it require that if he already registered though someone told me Warren sued to remove her name in one state) and that collecting delegates is important to have a voice.

This last part rubbed me the wrong way since it encourages bad mouthing of Biden and risky trips to the polls by some of his supporters.  Anyway, thanks Sen. Sanders and hope you and your supporters will, as you say, deal with the threat of Trump and help Biden and other Democrats win in November.  We need to focus on Biden winning and stop whining about how we are upset he is the nominee (I get it) and his problems.  OTOH, I do kinda still want to vote for Warren in June.  Give me that. 

===

A small reminder of just what is at stake is the new press secretary (though not sure what they do now -- the last one had not a single press conference; guess was mostly crafting troll press releases) and baseball wife (Sean Gilmartin used to be a Mets AAAA reliever).  A taste from that article:

For instance, in a video of Ms. McEnany on the Fox Business show “Trish Regan Primetime” from Feb. 25, circulated by Andrew Kaczynski of CNN, the new press secretary said, “We will not see diseases like the coronavirus come here, we will not see terrorism come here, and isn’t that refreshing when contrasting it with the awful presidency of President Obama?”

Since Ms. McEnany made that statement, about 400,000 people in the United States have been infected with the coronavirus.

She has at times trafficked in the type of “othering” of President Barack Obama that Mr. Trump once did by promoting a lie that the first black president, whose father was Kenyan, was not born in the United States. “How I Met Your Brother — Never mind, forgot he’s still in that hut in Kenya. #ObamaTVShows,” Ms. McEnany tweeted in 2012.

The old "press" secretary will now work with Melania Trump.

Populism

So the dilemma facing contemporary liberals (and liberalism) is to enunciate a "progressive" political program at the same time that most liberals are scared stiff of what is described as "populism," i.e., a much more active participation by "we the people" in the process of decisionmaking and a concomitant distrust of established elites.

Various things were covered by this blog post that overall was in response to an article about how maybe it is time for conservatives to move past originalism since it restrains (ha) their goals too much.  This led to various discussions among legal minds, including at that blog.  But, this specific bit rubbed me (a liberal sort) the wrong way as well.  In what sense?

It is true that the classical progressive, shall we say, supported various things that advanced the professionalism of public policy, including administrative agencies.  But, such liberals also were among those that supported things like primaries and direct election of senators. What exactly are "most liberals" scared stiff of?  Even if Bernie Sanders by one account had a "30% plan" where he'd get a plurality and win in the end with the rest splitting the difference, his movement is populist, no?  If so, even thirty percent (and some portion of the rest) are "some."

As noted by my comment there, I want to say more on the popular involvement that I and many other liberals support to a greater support than is present now. I think we do have an obligation as a good citizen to be knowledgeable about public affairs, vote and in various ways engage with our government. A basic right, after all, is the right to petition.

Public hearings, not just confirmation hearings, are often ridiculed. But, they are important, including to hear from affected people and relevant experts, sometimes people who simply know what is being discussed (such as veterans in need of medical and psychological care).  Agency decision-making has a period for the average person to comment. This process, including court review (there is some opposition among liberals to conservative support of stricter review, but liberals too support court review of agency decision-making) various people and groups involve the people at large in decision-making as well. 

Running for office has various dubious aspects including the length and cost of campaigns. But, there too the public can have a major role. One person here thinks the party should pick the candidates, who would run in the general election. But, we (in a way at times open to caricature as seen in Around the World in 80 Days and other accounts) have a democratic tradition where the people are felt deserving to choose. This affects who wins elections, including local ones, and mass movements can significantly matter there. 

Having legislation by poll is not advisable, but there are many ways for the public at large to have more of a roll here. So, I'm open to certain issues being pressed to negotiation and a vote if the public decides it (e.g., a majority could have required NY to have a constitutional convention). This is a form of initiative. The 10A speaks of the "power" of "the people" and such things come to mind.  Also, proposals have been made to give people some voucher that can be used for political contributions. Moving power more to the people than corporations and other groups is a major possibility in campaign finance reform.

Finally, this counsels for an informed electorate, including civics education, both for children [I think a high school civics class should be like drivers ed -- the end result should be a registered voter.] but adults. We cannot have people talk (as one did to me) of "Trump passing" CARES Act. "Obamacare" is also the road to ignorance. The Affordable Care Act was crafted with a lot of effort by the Senate and House. The term misinforms the public.

I could add a lot more but do want to reference things like local community boards which provides a means for the average person to have a role in local government. Efforts can be made there to sponsor engagement with state and federal government as warranted.  There are a variety of ways, and most liberals are not scared of them, for the pubic to be involved in decision-making here from parents at schools and beyond.  Liberals might not like some of the results here, but many are very engaged. 

And, of course, there is the jury, an ever lesser used institution. Juries in some jurisdictions have stronger power to influence sentences, and fair representation of the society can often be more just there than a single judge.  The concept of the 'militia' also is the average person works together, under the leadership of government officials such as the governor or president, to serve public functions. They are part of the virus response. These days, a select group of the public serve actively in the militia. The public at large can have a bigger role there.

Populism very well might have problems. So, e.g., Prop 8 to the degree it was a popular movement (though a big issue here is that such ballot measures often only are promoted by select groups), was discriminatory.   Distrust of elites can be a distrust of let's say those at the CDC crafting a means to respond to the ongoing pandemic.  At some point, we do need to trust to some degree those who know things, we cannot rely on our common sense about things.  OTOH, even there, many liberals are distrustful of certain elites when conservatives are in power.

So, I think the comment has to be applied with caution. 

Supreme Court Watch

No apparent notable actions during the orders but it is one of the time where individual justices provide their own comments.

In the case, the D.C. Circuit Court of Appeals rejected challenges to the WMATA's guidelines which preclude the sale of advertising space on public buses for issue-oriented advertising, including political, religious and advocacy ads.  The ban includes ads "that promote or oppose any religion, religious practice or belief."  The Catholic Archdiocese of Washington wished to purchase space on the exterior of buses for its Christmas season "Find the Perfect Gift" ad.

Gorsuch (with Thomas) flagged that if Kavanaugh actually took part in this case we would have 5-4 Court, but "because  the  full  Court  is  unable  to  hear  this  case," they went along with the denial.  Note that "religion" specifically wasn't targeted all by itself.  I would think a 1970s opinion handled this, but since then we have had a strong protection of both free speech and religion in various respects. Who knows.

Meanwhile, Sotomayor had another "I found another real bad lower court capital case [etc.] but since I don't have the votes, I'll just flag it and explain why I'm going along."  Thomas had the dissent from denial in an EEOC (his old stomping ground) case, noting the circuit split was admittedly "shallow," but he thought the matter at hand was important.  This shows that various methods to restrain judicial discretion are somewhat flexible.

Two opinions.  With only Thomas dissenting, though RBG didn't like a footnote and Sotomayor/RBG flagged what was still left open, Alito applied a recent "but cause" principle to age discrimination claims.  Note by the way that these make around twenty signed opinions with at least one by each justice except by Roberts.  There were also a few per curiams and in theory he could have written one or more of them while dealing wiht impeachment or whatnot. This might suggest what ones of the remaining he particularly might have written though the rest are not evenly divided (BK probably is working on at least one opinion). 

When the officer lacks information negating an inference that the owner  is  driving  the  vehicle,  an  investigative  traffic  stop  made  after  running  a  vehicle’s  license  plate  and  learning  that  the  registered  owner’s  driver’s  license  has  been  revoked  is  reasonable  under  the  Fourth Amendment.

Thomas had a Fourth Amendment decision with only Sotomayor dissenting though Kagan had a folksy concurrence with RBG to flag it was fairly narrow on the facts provided.  But, she didn't concur in judgment, so the overall principles of the majority would hold there too.  The main opinion was a little over eight pages.  Sotomayor with a pretty strong dissenting opinion concerned with giving the police benefit of the doubt and allegedly a "demographic profile" without looking at the individual judgments of the police involved was particularly problematic.

The whole case had an artificial feel to it -- so, okay, there is some reasonable grounds to think the person who owns a vehicle is driving, but then the person has a revoked license, which counts the other way.  And, at one point the majority notes "The reasonable suspicion inquiry falls considerably short of 51% accuracy."  Oh? A reasonable judgment would seem that it very well is something that on average would at least be more likely than not true.  How far down are we going here now?    Plus, the thinness of the record makes it feel a bit feigned. And, why did the officer do a check if there was no traffic offense? Did he do random records checks? And, Kagan's concurrence seems to if anything hurt the case -- if the license was merely suspended, that might make it more likely for the driver to break the rules on some level.  Sotomayor's concerns for abuse seem sound on balance.

Another Friday/Monday Conference/virtual announcement coming up [Next week; this week is a holiday weekend.] And, then -- after the Wisconsin Supreme Court blocked its ability to avoid the issue by overturning the governor's move to delay the election (after the state legislature refused to address the situation) -- we have another late  per curiam vs. a strong dissent for the liberals. Rick Hasen -- after earlier saying it is "awful" the governor late in the day delayed the election (yes, it is awful the legislature pushed him to do so to protect voters and democracy, thousands of vote at risk if people don't risk the polls, many that won't even be open tomorrow)  -- said this bodes ill for November.  We cannot hope the courts will save us there.  Again, the blame is largely in the state legislature here.

(What happened when the 9/11 primary in New York occurred? The primary was postponed with the state legislature agreeing.  The attacks was a compelling event that required special action.  We didn't have to rely on the courts or governor because basically everyone did their job.)

The technicalities of the opinion can be parsed, but a 5-4 opinion dealing with a very special situation is far from something that compelled one position or the other. The dissent comes off as more compelling and various writers with more legal knowledge can spell out why.  Ultimately, when the matter is in debate, voting rights should be protected.  We might have more action, I guess, but ultimately what is the point of all of this for the Republican state legislature?  To help win a court seat that isn't even a swing vote?  Or, basically a distrust of democracy in the long run?

ETA: I expanded the 4A discussion.  Also, this article flags that a voter purge case very well might turn on the judicial race, suggesting that the race might be something of a swing election after all.  Looking it up, the judge running for re-election recused, resulting in a 3-3 tie since one of the conservatives on this point voted with the liberals. I don't know how often that happens, but that might help explain other than (as the article notes) general long-held Republican anti-democratic principle.

(The basic theme of that article is dubious since it basically complains about the liberal candidate in a judicial election being ideological. Yes, it is an election, that is going to happen.  As to how principled the guy was for recusing, he is running for re-election. She is not in the same position.  The idea one side is "activist" while the other side is "principled" conveniently in one ideological direction is tired stuff in the judicial context generally as seen by the results in the recent cases.) 

Carey v. Population Services Redux

Section 6811(8) of the New York Education Law makes it a crime (1) for any person to sell or distribute any contraceptive of any kind to a minor under 16; (2) for anyone other than a licensed pharmacist to distribute contraceptives to persons 16 or over; and (3) for anyone, including licensed pharmacists, to advertise or display contraceptives.

I have talked about this case in the past and again will focus on specific matters here.  The opinion is one of those that dealt with a somewhat narrow issue (the reach is somewhat broad but especially with the exceptions cited and the realities of the situation as to enforcement, it was largely symbolic) but covered a lot of ground.  It reaffirmed privacy rights, including how it involved decisions (thus the importance of access), not just places.  It covered children.  And, reached commercial entities.

Finally, there are various asides (including in the concurrences) that are interesting reading.  Well, I find the whole thing fascinating on some level. And, this is a case where it is also well worth it to read the lower court opinion, which is now easily accessed.  When I started doing this, I had to go to the main branch down Manhattan to look at volumes to see lower court opinions.  The Supreme Court opinions were accessible in somewhat more places, including slip opinions in a college library.  Now, we have basically real time online release of those and easy access of a broad range of state opinions as well.  This without access to Lexis or Westlaw.

Four justices agreed to one section of the opinion involving the reach of privacy rights to minors, three others joining that in result (Burger dissented without opinion while Rehnquist dissented in a dismissive opinion worth comment -- see below).  That one section had over ten footnotes including on the reach of the problem of pregnancy for minors.  The last of those footnotes is one of those "Easter Egg" sort of things that makes those who see them smile (White did not join this portion so citing his concurrence protecting the right of a non-physician to distribute is important for that reason -- he would make it five):

The reason, of course, is that the abortion decision necessarily involves a medical judgment, while the decision to use a nonhazardous contraceptive does not. Eisenstadt v. Baird (WHITE, J., concurring in result).

(Cites partially omitted.)  Thus, we went from protection of use of contraceptives to protecting decisions of use for unmarried people to not only minors but a general principle that medical personnel was not needed here at all.  Perusing the footnotes, we also get some discussion on the purposes of the provisions here, including a reference to People v Baird, a New York lower court case in the 1960s decided after Griswold. Why, yes. That is the same guy who later was involved in the Supreme Court case.  There, the law against a non-physician having the right "to sell, lend, give, exhibit, or offer to sell, lend, give, etc. of any instrument or article or medicine for the prevention of conception" was upheld.  The judge in part noted with a twinkle in his eye probably:

The court has read with interest the defendant's memorandum of law in support of demurrer. The attorney is very eloquent and persuasive, but in the final analysis, he is still asking this court to enact new law rather than to interpret the laws on the books. It is apparent that the defendant is basing his contentions upon the social aspects, rather than the legal ones, but the court cannot do what only the Legislature can do — consider these changed social attitudes as justification to, in effect, repeal a statute. Certainly no Judge is equipped to appraise changes in social attitudes. For instance, it may be noted that strong pressure was brought to bear upon the Legislature in the recent amendments to the Penal Law, to eliminate the crime of adultery. This they declined to do, although there are many who now consider it as merely a trespass upon the socially accepted norms, and not a crime.

And, if we go back further, following a cite, we can look back to the Margaret Sanger case that upheld the physician exception :

This exception in behalf of physicians does not permit, advertisements regarding such matters, nor promiscuous advice to patients irrespective of their condition, but it is broad enough to protect the physician who in good faith gives such help or advice to a married person to cure or prevent disease. “Disease,” by Webster’s International Dictionary, is defined to be “an alteration in the state of the body, or of some of its organs, interrupting or disturbing the performance of the vital functions, and causing or threatening pain and sickness; illness ; sickness; disorder.”

That broad meaning of "disease" sounds a bit familiar, huh? Yes, the Supreme Court would have a similarly broad meaning for "health" in the abortion context.  Such did not come from nowhere.  OTOH, as noted in a recent entry, Connecticut did not have such an exception, or at least, would not read one not expressly there. The same applied to Massachusetts [the Baird case arose there too] as referenced by the majority there.  Use, the court said, would "promote sexual immorality but would expose the Commonwealth to other grave dangers."  It cited an earlier case that upheld a prohibition that was there applied to distribution of birth control materials.  They were so touchy that only the titles were mentioned.

And, then there is the Rehnquist dissent.

Those who valiantly but vainly defended the heights of Bunker Hill in 1775 made it possible that men such as James Madison might later sit in the first Congress and draft the Bill of Rights to the Constitution. The post-Civil War Congresses which drafted the Civil War Amendments to the Constitution could not have accomplished their task without the blood of brave men on both sides which was shed at Shiloh, Gettysburg, and Cold Harbor. If those responsible for these Amendments, by feats of valor or efforts of draftsmanship, could have lived to know that their efforts had enshrined in the Constitution the right of commercial vendors of contraceptives to peddle them to unmarried minors through such means as window displays and vending machines located in the men's room of truck stops, notwithstanding the considered judgment of the New York Legislature to the contrary, it is not difficult to imagine their reaction.

The opinion specifically noted that vending machines were an open question.  The breadth of the law did not merely cover such unsavory sounding sources.  It limited distribution to those over sixteen too. And, blocked advertisement generally.  One can ridicule any number of what might be seen of limited importance rights by this mechanism.  The sale of Peyton Place, e.g., was not exactly the core concern of those who died at Shiloh. But, basic matters involving choice of timing pregnancies was a basic concern, including for newly freed slaves. And, birth control information, including as part of commercial means, is rather important too.  So, maybe tone it down a tad, Bill.

The Court here in effect holds that the First and Fourteenth Amendments not only guarantee full and free debate before a legislative judgment as to the moral dangers to which minors within the jurisdiction of the State should not be subjected, but goes further and absolutely prevents the representatives of the majority from carrying out such a policy after the issues have been fully aired.

It does not "absolutely" do any such thing.  Yes, among the various means it might attempt to address premarital sexual behavior (noting this is not the only matter covered), it could not do this "one" thing.  Noting that in practice minors still had a statutory right to obtain them in certain ways, thus making the reach of the law narrower and more equitable than it might have been, overall it is problematic for the reason provided in the opinions to try to stop premarital sex by denying haphazardly access to contraceptives, including methods that could help stop VD.  

The other two provisions are not really defended (after all, "to debate the Court's treatment of the question on a case-by-case basis would concede more validity to the result reached by the Court than I am willing to do")  though apparently reasons to defend them can be "imagined." Anyway, he "cannot believe that it could significantly impair the access to these products of a person with a settled and deliberate intention to procure them."  The majority made some effort, unrefuted to do just that.

No questions of religious belief, compelled allegiance to a secular creed, or decisions on the part of married couples as to procreation, are involved here. New York has simply decided that it wishes to discourage unmarried minors under 16 from having promiscuous sexual intercourse with one another. Even the Court would scarcely go so far as to say that this is not a subject with which the New York Legislature may properly concern itself.

And, it does not say they cannot "concern" themselves. It is the means that is the problem.  Anyway, as in part referenced by Justice Powell if anything more strongly than the main opinion, blocking mail order of the type here very well impairs access. Such organizations are a major industry (see, e.g., Adam and Eve), especially for those too shy or whatnot to obtain things like condoms in person.  And, this very well is a matter of religious belief, since choices regarding childbirth do touch upon that in various ways. Since the law here seems to broadly cover "morality," the possible reach of the advertising ban can also cover other matters that also touch religious disputes such as homosexuality and other sexual matters.  Finally, lack of access is practice very well moves passed belief to in some fashion lead to compulsion to certain creeds in some fashion. 

While we have not ruled on every conceivable regulation affecting such conduct the facial constitutional validity of criminal statutes prohibiting certain consensual acts has been "definitively" established. Doe v. Commonwealth's Attorney, 425 U.S. 901 (1976). See Hicks v. Miranda, 422 U.S. 332, 343-344 (1975).

The main opinion also dropped a couple of footnotes (one in the portion joined by a majority) noting the reach of privacy as to consensual sex was an open question. And, in time, this would be deemed to not apply to homosexual relations until Lawrence v. Texas clearly held a constitutional right that broadly protected sexual relations for the unmarried.  But, the Supreme Court until then avoided clarifying the matter, Bowers v. Hardwick itself only addressing homosexuals though the specific statute broadly targeted sodomy overall.

Anyway, this annoyed Rehnquist too, but the citations really didn't refute the point.  The first summarily affirmed, without comment, a 2-1 lower court opinion involving an attempt by male homosexuals to have it  declare a law against sodomy unconstitutional.  They were not themselves prosecuted.  It is thus unclear, as noted by the lower court opinion in Bowers v. Hardwick, just what the Supreme Court was affirming, since the rule there is not to assume more than the result was upheld.  The other involved the sale of obscenity.  The possession of obscenity still being protected.  This underlines the possibilities left open.

The dissent has the character of some dismissive replies online that are so unimpressed by the rationality of the other side that they don't take the time to actually engage with the arguments and do so in such a way that is shall we say a tad slipshod in nature.  But, even there, there is a reason to read the opinions here. And, since we are inside more, we have more time to do so.

Big V Update

The picture is of the President of Slovakia (Melania Trump is from Slovenia) showing, with some style (like Muslim women wearing colorful at times a bit form fitting coverings that are sometimes a bit counterproductive) how to be responsible in these times.  Joe Biden also said he will follow CDC (and my own local mayor's) advice and wear a mask in public.  Trump has said he thinks he will not, sending a different message.

I myself have only went out a bit (mostly to the bakery around the corner and nearby stores to pick up a few food items) and will admit to not wearing a mask.  The corner discount store recently started to sell them and did purchase one today ($2.50).  Figure they should find a means to distribute non-medical masks for free.  Blue side out.  Take off using the string, not touching the mask.  A majority of people I see around seem to be wearing them, especially when I went to the supermarket.  Only the side door is open now and there is a blue line to wait behind at the counter.  The bakery now has a sign on it that only three customers should be inside at once.  More signs of the time, literally and otherwise.

The Washington Post has an article that is damning as to the U.S. response to the Big V as shown by the headline: "The U.S. was beset by denial and dysfunction as the coronavirus raged: From the Oval Office to the CDC, political and institutional failures cascaded through the system and opportunities to mitigate the pandemic were lost."  No matter who is in power here, it would have be problematic.  New York made questionable moves and as noted my represenatives passionately denounced some aspects of the budget that they argue will cause suffering in ways directly connected to this pandemic. But, Trump being in power signficanlty worsened the situation.  We knew this in principle in 2016.

The article provides a damning look at the first ninety or so days and it is not just you know all the asshole's fault.  China didn't help, for one thing.  The perils of a closed society heightened the situation.  But, even within the range of danger there, Trump and his team worsened the situation, again things flagged in the past coming out again. For instance, Trump's continual praise of dictators:

There is no indication that officials sought to escalate the matter or enlist Trump to intervene. In fact, Trump has consistently praised Chinese President Xi Jinping despite warnings from U.S. intelligence and health officials that Beijing was concealing the true scale of the outbreak and impeding cooperation on key fronts.

Trump continuously downgraded the importance of the whole thing. The HHS Secretary would seem to be an important player here?  Not so much. When he brought the problems of the virus to Trump's attention, Trump was more concerned with vaping.  Eventually, Azar (who leaves something to be desired, but has shades of a credible Cabinet member) was pushed aside for the likes of Pence and Jared "Ken Doll" Kushner.  To pull together various things referened in the article (without ellipses):

But even as Fauci, Azar and others sought to assert themselves, Trump was behind the scenes turning to others with no credentials, experience or discernible insight in navigating a pandemic.

Foremost among them was his adviser and son-in-law, Jared Kushner. A team reporting to Kushner commandeered space on the seventh floor of the HHS building to pursue a series of inchoate initiatives.

So far, the plans have failed to come close to delivering on the promises made when they were touted in White House news conferences. The Kushner initiatives have, however, often interrupted the work of those under immense pressure to manage the U.S. response.

Current and former officials said that Kadlec, Fauci, Redfield and others have repeatedly had to divert their attentions from core operations to contend with ill-conceived requests from the White House they don’t believe they can ignore. And Azar, who once ran the response, has since been sidelined, with his agency disempowered in decision-making and his performance pilloried by a range of White House officials, including Kushner.

Weeks were "squandered."  Responses were limited, following standard scripts such as:

“The genesis of this group was around border control and repatriation,” said a senior official involved in the meetings. “It wasn’t a comprehensive, whole-of-government group to run everything.”

So far there have been an on record in the U.S. (and lack of tests suggest this is woefully an undercount) eight thousand deaths, over three hundred thousand confirmed cases and  we probably have a ways to go.  Loads of people probably have or had (unclear if one is safe once you had it) the virus without being counted. Many do not have symptoms or they are minor.  These people can still be carriers, spreading the disease.  Thus, even though the numbers might suggest this is off, it has a ring of truth:

It may never be known how many thousands of deaths, or millions of infections, might have been prevented with a response that was more coherent, urgent and effective. But even now, there are many indications that the administration’s handling of the crisis had potentially devastating consequences.

Millions.  Some fraction of that is the statistical result of an incompetent criminal being in power.  We need to be clear about what the upcoming elections need to do.  And, we need not simply go back to old normal, if with somewhat less people around.  We need to learn, adapt and do better.

===

There have been a wide range of responses to dealing with the new normal from late night hosts (and John Oliver) doing shows from home, teachers with remote learning, the charming use of Skype type platforms so that we see video of people who usually only stop by or call in talk shows like Stephanie Miller and so on.  The times allow more of this sort of thing than even would have been the case ten/twenty years back. 

One thing that I used yesterday was Stage It, a means for various performers to give mini-live concerts for a low price (at least $5 though you can "hitch a ride" with someone if they pick you), Alicia Witt performing.  One thing that seems to be a key thing when celebrities come remotely is that they are causal. She said that she had makeup on though it was a bit hard to tell.  She is so pale normally.  Witt is charming, usually chipper though her music can be rather somber at times. 

Abortion/Contraceptives -- Free Speech Issues

There are variety of abortion cases over the years involving free speech issues such as Rust v. Sullivan, which upheld 5-4 a limit on abortion speech in federal funded clinics.  A recent bad ruling struck down, by the same vote, a regulation of so-called "crisis pregnancy clinics" even though comparable "informed consent" [quotes are not meant to be scare quotes] laws generally were upheld, especially after Planned Parenthood v. Casey. The Supreme Court has not addressed that matter directly as a First Amendment free speech matter much over the years.*

Bigelow v. Virginia (1975) protected abortion advertising, but its reach is unclear.  First, the law was defunct and even when it wasn't, this seemed to be the first time the old law was actually used.  It also addressed an ad that had notable informative content (abortions now legal in NY and no residency requirements) of something the Supreme Court deemed a constitutional right.  And, a major concern of the opinion was to make clear that commercial speech has at least some protection, even if an old opinion dismissively said otherwise.  The opinion left open a range of things that might be regulated here, including medical advertising and referral groups themselves. 

The dissent (the abortion duo) probably was right to say the majority too broadly belittled the importance of regulating medical reference agencies, even if Virginia was dealing with something out of state. Their citizens were still reading about it. Their health could be at risk.  And, in this sense, since the direct target is not even in the state, it might be when you target the media source.  But, taking everything into consideration, including the selective nature of the enforcement, the majority still probably was correct.  Arguably close though, at least in 1975.

The case, however, was really the beginning -- though past cases flagged the time was coming -- of a new security for commercial speech. Soon, with merely Rehnquist dissenting (putting the specter, imagine, of drug advertising -- overacting and music not included), prescription drug prices was seen as within the ambit of the First Amendment.  And, then we had legal advertising.  Beer labeling.  Tobacco advertising even was partially protected eventually in regard to displays at convenience stores.  The breadth of what some suggest is a "Lochnering" of the 1A is still growing.  Thus, trademarks was seen as obviously a matter of concern here, even though for years, not so much.

The regulation of advertising suggests that there are lines drawn and they are not the same as non-commercial speech, which isn't absolute either.  And, the case also suggests that there should be some concern about limitations.  Why should a paid notice talking about a paid service (though the paper did not at first realize it was for profit) of particular constitutional notice be barred from a publication?  And, again, note how selectively it was enforced, at the time before Roe v. Wade protected abortion services broadly in Virginia itself.  All/nothing cannot be the line.

This arose in 1983 in Bolger v. Youngs Drugs, the case referenced in the contraceptives discussion.  This time a unanimous Court, Justice Rehnquist concurring in part to emphasis it was content based, blocked a federal law "prohibit[ing] the mailing of unsolicited advertisements for contraceptives." It was granted that this was commercial speech, if material clearly with informative content.  There was asserted an interest of privacy and concern for the needs of minors.  But, this was selectively enforced and especially with the materials in envelopes that could simply be tossed in the trash, not much of a problem.  The respondents granted that it was constitutional to allow recipients to opt out on their own per an earlier decision.

That decision is interesting in part because not only does it honor the privacy of the home, but has implications for "no call" registries. This also suggests the ongoing implications of such cases. Telemedicine is also another avenue one can explore.

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* As I noted, contraceptives over the years raised free speech issues, and some early battles going back to the late 19th Century involved the right to talk and distribute materials about birth control.  A case that protected contraceptives targeted minors in between these two cases also directly addressed First Amendment issues.  Meanwhile, the Roberts Court struck down a non-prostitution pledge to obtain federal aid. 

Informed consent rules, that including what physicians must say to some degree, were upheld early after Roe v. Wade, but later cases struck down what was seen as inappropriate ideological laden "parade of horribles" type material.  Planned Parenthood v. Casey pared back that to some degree but still said it must be "truthful."  The distance between the two regimes has not quite been pressed.

Pronoun Usage / Virus Update

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

I was going to eventually read Dennis Baron's book, or at least skim it, but the Big V (my pet name for COVID-19) closed down the NYPL, even before I had a chance to pick up another reserve.  The author discussed his book at NYPL this year in fact and C-SPAN just re-aired an appearance he had with a trans journalist (she sounds a bit saucy).  The complexities of pronoun usage is not something that was just a thing in recent years. 

Part of the thing cited was debate early on over the use of the universal (?) "he."  Could, e.g., a woman become President?  Some said "no," but others pointed to usages like this.  Women do not lack the right against self-incrimination.  So, the usage of the male pronoun must at least sometimes be intended to be universal.  It should be noted that usage of "he" does have baggage, including a general supposition that public matters will only involve men, even if that would entail crime too.  Striking to me too is that that "himself" is something I pass over.  In fact, and I'm not your ordinary constitutional reader, first was like "wait! the amendment says 'person,' right?"  It does, but not for that one thing for some reason, apparently since the possessive pronoun fits there.

And, we do not have a generic third person singular form whose sex is determined by context though can also in effect by "he or she." The Latin for "I came, I saw, I conquered," the famous Julius Caesar line were merely verbs of a certain person.  The usage of pronouns is not necessary as much as it would be in English.  It is interesting and/or ironic that a language like ours, with so many words with various meanings and providing shades of meanings of the same general concept, is so limited with "he" and "she."  Even the modern day "you" is less particular than it might be in another language where one form is more formal than the other. 

(The book is not about trans issues particularly but there is overlap. I would be interested in a book that provides a history of trans development since again one might get the idea it is, with apologies to Justice Alito whose 70th birthday was on 4/1 -- he is such a kidder -- younger than cell phones.)

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A bit of a virus update. For one thing, though this doesn't really change things much including my overall sentiments on the response, found out one of my sisters [a public school teacher with some mild if troublesome health condition though her husband has a more serious heart issue] found out she has the virus.  She apparently is doing okay enough and is one of millions really that is likely to have some form of it, many without knowing it.  The problem is some subset is particularly at risk, thousands in this country already dying. Thus, e.g., the need for isolation, masks etc. Her husband might be an example as is my elderly mom. not too nearby.

I obviously have a personal stake in it now, but didn't I before? New York City, my home, is greatly affected now.  Not to be heartless, but my sister is a statistic as much as I am in my home.  BTW, being able to do less, including even going to the library, is a possible road to spending much of your time doing trivial things and eating too much.  I gather I don't merely speak from experience, but yes ... e.g., you'd think I would be reading more books-wise, but in fact have read less, spending more time online.

 I don't like to personalize these things and only say it here since basically no one reads it. Did not comment on Twitter.  But, it is important for some to speak out about personal effects.  We do respond more when things aren't seen as merely academic.  We always shared personal accounts in some form be it at the bar, coffeehouse, marketplace, church or what have you.  It is helpful for some to share too.  I do fear at times that one might be given too much weight; my sister has the virus! Cannot challenge me without insulting me!  Yes, can still be wrong about things and so forth.  I also prefer to keep things private.

Anyway, it does seem unreal -- first week in March, normal, even if the educated on the question knew what could come, first week in April, so many things shut down and so forth.  The efforts made to respond, even on the federal level with all the problems there, is amazing.  Yes, a lot of problems. But, consider even something as small as daily meals for children at public schools here, now expanded to adults.  Monday to Friday.  I checked the vegetarian option on Friday and it might not be quite a complete meal (hummus, carrots, applesauce, pretzels and chocolate milk or peanut butter and cheese, I was told) for the day, but not bad at all.  For free, for all, no questions. 

My state senator, Sen. Alessandra Biaggi, has detailed email updates and there is a text you can send to get some from the city.  Meanwhile, a budget was crafted for the state, and some liberals (including my rep and senator) found it seriously wanting in a variety of ways. A reminder that Gov. Andrew Cuomo might be competent, especially in an emergency (his brother also caught the virus), but people were concerned for him reasonably.  I have good team representing me though my city council person is someone I have issues with (as noted in the past).

When the NYPL first closed, there was a tentative two week time frame though books were extended until April 15th.  Now, it is more indefinite as seen by the postponing of the presidential primary to late June, which is the time of the city/state primaries.  But, who is to know how long?  We are now hearing talk of concerns bout the November elections.  Who knows.