SCOTUS Watch: Calm Before Storm

Saw a SCOTUS reporter mention that the opinions would be released ten minutes apart and figured this meant major opinions today. Ha. One opinion involving prison litigation, seven pages, unanimous (except Thomas not joining a footnote). The decision involved "strikes" counted when allowing litigation, opening up various baseball metaphors including Roberts "balls and strikes" bit. Some said "what are you doing, Elena," but it was but one of many.

Justices took one case for review, but again, none of the ones getting the most attention. So, the order list was a yawner too, though Sotomayor tossed in one of her "I'm concerned, but not ripe" statements regarding a criminal matter. Couple "why aren't they taking part" bits. A racial discrimination in employment case was allowed to be postponed; looking it up in the docket page, there is a possibility of a settlement. Next scheduled bit likely next week.

NYC Starts Re-opening

New York City entered phase one of reopening today, but what does that actually mean?

Construction sites can open. Manufacturing and wholesale businesses can resume.

Retail stores are allowed to have curbside pickup and landscaping businesses can operate.

— Josefa Velásquez (@J__Velasquez) June 8, 2020

This matters for perhaps hundreds of thousands of people in a direct way though less so for yours truly.  It also is but "Phase 1" of a four step process.  As an article noted: "Getting here took the sacrifice of millions of New Yorkers who learned to live radically different lives. More than 205,000 have been infected, and nearly 22,000 have died." And, each one of those have so many connections as well.

As with Trump, there are two levels here, though more directly in direct ways for more people.  First, at some point, such numbers are striking. This is so even noting the state has over eight million people. Hard to quantify at some point here, but simply put just dealing with family members and friends provides a multiper effect.  Not that even 22K, full stop, is not a lot of people. Again, many more were affected directly by those deaths. These death numbers had a high ranked member of the NYPD, one of around forty employees as a whole who did, added recently as well. 

On another level, and this is important too, it's easy to accept on some level a lot.  After all, most people didn't die; even infection only goes so far though a in the Bronx alone (if a disproportionate number) over 10K had to be hospitalized.  So, people were complaining about things as soon as a month in.  Equally so, most people accepted a rather striking new normal. Wearing masks, months of children not going to school, millions out of work and so forth.  We don't need to have dystopia level results, though we had some moments that look like scenes out of such a movie, for things to be pretty damn bad.  Small scale and large.

We have a ways to go.  Got to start somewhere. 

The Godless Constitution

Another item on the re-reading list that covers mostly familiar ground though the chapter on the Sunday mail controversy is not as well known. The book covers the religious and libertarian origins, original understandings and adds a few personal essays (one is an update covering the Bush Administration). The last set are more prudential to some degree than the strict separation promoted in historical chapters. But, such is how life goes.

One prudential "pick your battles" move was to accept "under God" in the pledge, though granting if the Supreme Court upheld it (have avoided directly doing so) it would uphold a non-secular state. It does not bluntly note that it would violate the very title of the book! I understand this approach while finding it troubling. School children are taught in a basic everyday act that reaffirms our principles to violate what should be one of them. As is sometimes the case, the original was better.

The authors were troubled by Bush43's blatant use of mixing religion and politics. Politicians will have religion and morality will arise but that is a bridge too far for them. They are wary when any side does that. Imagine how they would feel about the ugly version of this approach in the Trump Administration. One can be cynical about Bush's conversion experience while still somewhat believing it. But, Trump? The worst of both worlds there.

She is only partially right.

Note: Biden  by AP reports obtained the delegates necessary to formally get the nomination yesterday.  I will say more in a post after the elections on Tuesday. 

I am against burning. Looting & vandalism but @kimlatricejones cannot be argued against. She is right. #TheSocialContractIsBroken https://t.co/qlyZ43ftpG

— Malcolm Nance (@MalcolmNance) June 6, 2020

I woke up and checked Twitter since I still do that on weekends without tweeting myself.   This video and the responses really bothered me.  Well, the first is as desired at least -- the activist had something to say, she didn't expect a calm response.  And, I'm just "they," after all.  Malcolm Nance's response is somewhat different.  See also most of the replies, one at least that has the whole video, one citing it as some sort of clear reply to one of the few of the "two wrongs don't make a right" school.  

But, the whole video does not really change the nature of her message much, except perhaps that she starts with a reference to well off blacks critical of vandalism and looting.  The opening shows the rest is a discussion of "why" the looting goes on.  All the same, the video doesn't end with a "but."  The basic message is that the social contract has been broken (by "they") and why wouldn't we be surprised at a message of "fuck your laws" when looting and vandalism is done.  After all, "we" don't own the community and property at issue.  And, that is where it ends.  It's only six minutes so hey maybe she strongly disagrees. She wrote a book and has a lot more to say.  The tweet however is on a part of a message and so that is what this blog entry is about. 

We are assured by multiple people that looting and violence is not being promoted.  This is b.s.  There are people on the very thread who say that if this is what it takes, okay.  It is unfortunate, maybe, but it is a necessary evil.  War is referenced on that front.  So, please, ADMIT (it was before 8AM and yeah I was screaming at my damn phone) what you are saying here.  So, Prof. Erik Loomis (LGM) was GLAD police stations were attacked.  A video that ends with a message about the hell with your concern with property damage very well on some level promotes it. If we are not supposed to give a shit about something happening, how exactly is that in some fashion not promoting the result?  Own up to it.

How she be right and not be "argued against" if looting is wrong? Her emotional response has truth to it. But, knowing why is not the same as agreeing.  The whys are simplistic.  Again, reference to the very beginning (not in that clip) where she mentions wealthier blacks. POC own businesses.  Do looters and vandals only go after Target?  No!  Own up to this.  Do POC not run McDonalds franchises (one article said people went there to get milk or something for protests ... fine ... there was also at least one report with pictures of one burning -- not the same fucking thing)?  Target isn't some government run business either.  POC work there and so forth. Looting and vandalism of stores hurt the average person there.

I am privileged on some level (on another, far from it)  down to my area basically never even having any police presence. When I was growing up, a woman officer stopped by outside the house and said she was assigned to the area.  Never saw her again.  The mayor to me seems to be fairly okay, but the last few months underlines he has a lot of issues.  I had no real occasion to worry about him and he did a few things like end stop and frisk that seemed liberal.  And, on some level, sure, he is better than Michael Bloomberg.  On others, he leaves a lot to be desired. The police response to the curfew and protests underlines this.  To the degree I in some sense handwaved people like De Blasio, I am part of the problem.

But, it is a rather indirect path from that to killing disproportionately POC per horrible criminal "justice" polices that lead to "defund the police" or "abolish police" or "abolish prison" arguments.  I have shook my head there.  That was wrong.  The language does confuse some.  The wider problem is clear.  The system is the problem.  A basic issue there is the drug war.  We can address details -- a 5-4 Supreme Court case years back dealt with no-knock warrants -- but ultimately it is the drug war that led to the death of Breonna Taylor, an EMT who would have been 27 this week.  People talk about ending the drug war and we get "what about heroin" comments too.  So, yes, let's systematically face our dubious prison system and then deal with the small number of dangerous murderers etc. akin to worrying about murders in prison once the rest of the death penalty ends.  And rape?  As noted in this podcast, how are we dealing with rapists and sexual abusers now? So many are out of prison. Kavanaugh etc.

The use of protest, including protest that breaks the law, to address this sort of systematic problem has been true over our history.  Labor protests repeatedly were violent, including during strikes.  We can face up to that.  But, let's not say that "no one condones" it.  Remember during the Bush Administration when one reporter quoted a Bushie who spoke with disdain of the "reality based community" and many shook their head?  We need not let emotional appeals lead us to ignore reality here.  The "whys" and full perspective on the violence and property damage is part of that.  Let's be humble about our own appeals to emotion.

Still, we need not say such videos are unanswerable.  They are. One thing that troubles me is the idea that because the social contract is broken, this justifies (yes! that is what she is saying -- she is voicing the justification and ends without adding "but," even if at the beginning we might think she will just speak in their voice ... her passion suggests she is not merely doing that, the replies surely don't suggest the "why" is deemed wrong) a tit for tat.  If that is the mentality, the why, it's tragic. We cannot run society based on the sentiment that if the authorities -- in some subset of cases -- is unjust that we can decide the rules are no longer in place.  The basic rules of respecting others, including their property, is an overall moral requirement. This is so even if others break the rules. We do not have the right to invade someone's home if they break into ours.  We do not have the right to rape someone's sister if they rape ours.  This basic stuff.

There is also the scope. Yes, over and over, peaceful protest and action was not enough to stop wrongdoing.  Wronged people, including black women who were harmed by black men, know this in a variety of ways.  Still, as a whole, people go about their lives here.  And, again, what is the role of Target in this exactly? As to not owning anything, that is wrong too. POC own things.  They run businesses.  The logic there suggests it is fine to attack small businesses and private homes in their own neighborhoods since only "they" have power and ownership.  But, that is a lie.  New York City in particular has many POC in offices, in part because POC have some power, including at the polls.  They aren't powerless.  Voting is but one way that the looters "own" part of the system.  Enough power? Surely not.  But, that is more nuance than a brick thru a phone store window warrants.

It sounds f-ing patronizing when someone like me says I "understand" something here.  It also is the road to perdition to not accept that people can have some empathy to people somewhat unlike themselves.  Can a man not understand to some degree the needs of women?  They have sisters, wives, mothers as well as basic humanity.  Can someone not GLBT not have some understanding of those who are?  Many people cannot fully understand various pains and issues I personally have.  A family member who has some mental health issues has reason to feel on some level alone.  But, on some level, we can understand.  Being critical -- after all some women oppose each other on various levels -- is possible here too.

Plus, again, violence and property damage is repeatedly going to harm the very people whose names they or their partial defenders (e.g., referencing the Boston Tea Party, which was not a riot or looting, but an illegal act of protest with organized elite leadership) reference.  She on some level in her wider video explains their acts as a personal act of nihilism that has no great goal.  But, we can understand without justifying.  Such is repeatedly the case with those who commit criminal acts in part because others are harmed, often those more at risk.  POC have businesses, work at them and will be blamed for a few.  Note that the video does not reference outside agitators who might in some fashion be involved in some cases.  No. The video are talking about black people who feel helpless here.

I referenced earlier in the week my concern that such acts are counterproductive, bringing to mind the "get behind me Satan" line in the gospels.  I would take that to include more direct attacks on government buildings and certain particularly well off types that seem clearly part of the problem.  (Note "they" very well might vote Democratic, support anti-violence efforts, help fund groups that help victims of police violence etc. ... the "whys" here is not very nuanced.)  This also has historical precedent.  But, it is particularly the case when dealing with other property damage and looting.  Yes, it is a small part of generally peaceful protests.  It is kinda like a tiny amount of problems with voting not justifying heavyhanded voting regulations.  The curfew also very well appears counterproductive though limited restraints on business districts might be easier to defend.

The video, however, did more than that.  It directly spoke in the voice of the looters.  Those against that sort of thing includes many as passionate and emotional (she ends up in tears and someone has to console her) as the woman in that video.  But, they are like Malcolm Nance, the sort of people she addressed at the beginning of that video (yeah, listen to all of it).  They think looting and vandalism is the wrong way to go.  For a variety of reasons.  We can understand -- and the "shut up white guy" crew of non-POC say they understand too, so don't get all self-righteous, but disagree it is justified.  Mitigating, perhaps.  At least in some cases. Also, the response must not be over the top.

So, only partially right.

===

Okay.  I'm going to see an elderly relative, driven by a white person upset at the curfew invading her rights, and will disagree with her in another fashion.  A bit on that.  She sent me a video of her walking around her residential area after curfew.  That's nice. Walk along the business area on Gun Hill Road and so forth.  Walking around my area, a middle class white area mostly, won't do much either.  Yes, the curfew seems like overkill when applied across the board.  Still, how exactly is she and her husband constrained?  What exactly do they do out at night?  One at times does music gigs, but the partial re-opening of the city is next week and not sure where he would be able to take part in live entertainment even if that is restrained by the curfew.

Their rights are being violated as innocent people to address looters. How does one stop them without some general rule blocking people going out?  Will people wear signs that they are not looters?  Is this some implication of a certain "type" when the people we saw looting Target etc. look like average types, not only a certain stereotypical person.   The regular day-to-day behavior in this city does not involve masses of people outside with a few feeling they have some special opening, at times motivated (see above) by a different sort of grievance, to break the law.  Let's put aside the limits of the Big V only aggravates the general unrest here, including in some cases providing some businesses as more tempting targets.

Again, I am inclined to think the city-wide curfew a bad idea.  It is harder to be absolute about things if it was more finely tuned though even there maybe not at least unless we had something like closing down shopping areas somewhat early.  But, if late night looting is a problem, most of the areas would be closed much of the time anyhow.  Would you cordon off certain areas?  Also, maybe mass protests after a certain time would be disallowed.  It is unclear, except now as a sort of response to the curfew, why there is some compelling need to protest after 8PM or something.  Some might oppose that, but it is more targeted, again.

OTOH, a complete curfew is of limited value and the negative response (including the unclear additional police response resulting, including let's say harassing delivery people or the like) makes it seem counterproductive. There is a reason, except maybe during a days long blackout (again, coverage is unclear on historical details, multiple articles not referencing the blackout curfew), this week long curfew is such a historical occurrence.  So, her response is on some level justified but comes off as rather privileged.  Oh.  So the response is overkill in response to a more limited need.  A tad ironic, some might say.

Partial NYC re-opening.  Turning a corner?  Hard to say. We were ready for that and all of this happened.  2020, folks.

Kentucky Clinic Wins This Time

There will be Supreme Court orders and opinions on Monday with one reporter referencing ten minute spacing. This is curious since previously the turnaround was quicker though they did space the release even though not physically in session. I wonder therefore if major opinions will be dropped which would normally take time to release (perhaps with a dissent from the bench, which they still can have in theory if they wished) and here provide reporters time to process the opinions.  Or, maybe I'm reading too much into a single comment.  All the same, we are getting to the final opinions, including the most watched for of the term.

One reporter -- can't find it now -- noted that dissents from the bench provide a means for a justice strongly concerned with an opinion to make their opinion known.  If telephonic opinion announcements were provided alone with oral arguments -- after all reporters can normally listen to both in person -- this would still be possible.  A few times in the past, a justice gave reporters a statement that was not officially provided.  This also is a possible approach.  To belabor a hobbyhorse of mine, opinion announcements deserve more attention in discussions of more transparency and public availability.  Not having them AT ALL is worse than needing to wait a few days (with same day transcripts) to listen to oral arguments.

(For the sake completeness, Sotomayor handed down an order holding up a prisoner release plan pursuant to the government appealing.  This basically completed the opening left to the government to do so, which made the "win" earlier -- one three conservative justices still dissented from -- rather limited.  This action basically showed the truth of the matter.)

We have parochial school funding, GLBT rights, DACA and abortion rights cases pending, to name the top hot button cases left among the lingering opinions (putting aside the May set).  A 2-1 opinion that struck down a second trimester Kentucky D&E ban therefore is notable for that reason alone.  The dissent used standing (patients allegedly not on the same footing as the clinic) and dispute over facts of how burdensome the law would be (in the face of multiple court opinions) that will likely come up in the Supreme Court case in some fashion.

OTOH, the majority -- granting that concern for fetal life via a law regulating fetal pain -- noted the first is a red herring and the second compels overturning the law.  Post-Casey, it is difficult to think that the first part could be ignored -- the interest for potential life was not compelling only in the third trimester.  But, as the majority notes, it still cannot be used if there is an undue burden.  The facts suggest this is such a case given current medical technology and practices.  Furthermore, the facts here suggest there is no fetal pain in the second trimester. 

Last year, I briefly noted that reproductive rights proponents breathed  sigh of relief when the Supreme Court left stand a challenge by the same clinic (there only being one licensed clinic in Kentucky) to the forced ultrasound law.  This is not because it was a good decision.  The strong dissent* as well as past discussion on this very blog suggests the problems; plus there appears to be a circuit split on the issue too.  No. The general conclusion is that there was not likely five votes to overturn it, thus taking the case would if anything worsen the situation by settling the split the wrong way.  Also, the justices might hold up until the current abortion case is decided.

The Big V has led to multiple court battles with abortion rights as a whole doing fairly well from what I can tell (one or two troubling cases aside) though it's best not to be too relieved.  After all, this case shows that there is a continual attempt to treat this as different from normal medical practice even though abortion is surely not the only area where disputed moral and religious matters arise.  Let's see what Monday brings.

---

* The dissent argues that the ultrasound law is not really a regulation of medicine using normal informed consent rules and thus on First Amendment grounds should not stand.  Other than a brief reference in Casey, which might help though it's hard to say if the approach here is compelled given the current Court in this underexamined area.  The crisis pregnancy case does not make for reassuring reading -- if one is consistent, yes, this sort of thing seems dubious. But, did the conservatives really have that in mind when writing that stupid opinion?

The Supreme Court broadly applied the funding cases in Rust v. Sullivan, which raised First Amendment issues.  But, tainted informed consent laws in the old days were disposed of using privacy arguments. The undue burden standard led to looser restrictions; the dissent here however relied on the 1A.  It ended strongly: "It should be subjected to heightened scrutiny and deemed unconstitutional, lest our constitution dissolve, and tyranny be erected on its ruins. I dissent!"  Tad overheated. The rest is good though.

"New York Times Says Senator’s Op-Ed Did Not Meet Standards"

NYT published an op-ed by Sen. Tom Cotton promoting sending in troops to deal with protests. Many, including lots of those who work at the paper, were very upset at this. They basically said it was a form of incitement that the paper should not publish. The argument on the other side is that he is major figure, promoting an idea of many people and the op-ed page includes opinions of people we can strongly find disagreeable, especially if they are major figures. It doesn't mean, a lot of simplistic comments, any moron gets to vent.

I find this position reasonable, but many of the people I follow online disagree. Anyway, the NYT now says they did not properly vet the thing, which makes them look like morons. I saw some comment on the shoddy nature of Cotton's argument though that can be said about a lot of op-eds. But, what I saw early on was focused on Cotton's message. I think it is worthwhile to put that out there with a strong reply. The quality of an op-ed does matter and just providing op-eds without correction at some point just is not a good idea. To me, there seems to be a basic floor there as a good editorial judgment.

Anyway, I took a Big V test (nasal swab) and antibody (blood) and the results from my Wed. 6PM test in a walk-in clinic a few blocks away came in this morning. No antibody, which I was told was only somewhat of a "safe call" (my term). Not too surprised since I have mostly isolated myself, including avoiding public transportation though now and then felt a bit blah.

"Two’s Company: How About Three or More?"

Here are the guidelines for the curfew, which various people (including my state senator) think is a bad idea/counterproductive. It is unclear how much the city-wide curfew is enforced and it seems particularly silly outside of business areas and perhaps certain other places where large crowds would likely congregate. But, there has been various instances of vandalism, including in at least one store down the square (a nearby shopping area).

I also wrote about polygamy and "purporting" laws (a special subject in an area with a special historical reason to be concerned). So, the state weakening the restrictions was interesting to me. Taking out the cohabitation provision particularly seems to be that the concern is "promoting" your status, which is what "purporting" basically is. I'm troubled by the breadth there beyond fraudulently sending the message to let's say a business where it is how to get benefits that you are legally married.

But, it's Utah, I don't expect total libertarian. And, even the Sister Wives bunch, who went out of their way to promote, apparently never really was subject to legal sanction whatever the technical rules. So, it's probably a good step overall.

Super Tuesday: June Edition

I recently received my New York absentee ballot, now with the presidential option back, so it was well timed that the full opinion of the court of appeals requiring the latter was released this week.  On that front, I might work at the polls (as I did last Election Day), which I'm told involves gloves and mask.  That can get tedious for a full day, but guess if I'm going to talk about the importance of primaries ... (I have noted that absentee and drop-boxes could in theory replace regular polling places to some degree especially if the president is the only candidate.)

As noted in the original brief order, the opinion basically (if maybe with a bit more detail though though means/end test section was only a few pages) followed the lower court.  The right to vote for delegates to the convention is not merely a "beauty contest" even if candidates suspended and is protected by the First Amendment.  The fact that New York has been particularly hit is a partial response to the fact it alone tried to cancel the presidential primary, but most hard hit sections still will have elections anyway, if sports teams can train/in person voting should be too and the increase of processing of ballots also as a whole is minor.

As suggested by John Oliver in a segment on absentee voting last Sunday, claims of fraud are not based on reality as a whole.  For instance, one reply to such bs noted that Melanie Trump did not sign the reply envelope a New York voter has to put the ballot in (then you put it in another) and her vote did not count.  The ballot also notes you can only fill in the ovals or write-in slots.  Any other mark on the ballot could get it rejected. My concern there is that there is not a means to provide a means of correction.  This is one reason that an in person alternative for a certain remainder, shall we say, is a good idea.  Mail-in votes will delay some results for yesterday's primaries too, especially Pennsylvania, which has a chunk of the delegates.

The New York absentee ballot, by executive order covering not going because of the virus (unlike Texas), requires you sign an oath/affirmation that includes saying you could not go to the polls to vote.  My possible poll working made me wonder about that, though guess one can't prove that until that date you knew you would go to the polls.  Finally, there is the usual "who are these people," including male/female party delegates.  You don't only vote for a presidential candidate, but six delegates (only Biden, Bloomberg, Buttigieg, Sanders, Warren and Yang have them -- so in theory, you could vote for one each).  I speak of separate ones. and there is a choice in both cases.  I have no idea who these people are.  Should I write in?

The ballot info link above notes -- "In the case of gender non-binary delegates, they shall not be counted as either a male or a female, and the remainder of the delegation shall be equally divided by gender." The presidential delegates split by sex equally except when there is an odd number.  Often a survey will only have a M/F option.  What does a non-binary person do if they want to be a party delegate?  Should there be a non-binary delegate?  Some countries use sex quotas in parliaments and other bodies.  How such questions are handled tend to make me go "hmm."

(It's like the failure of news providers to clearly examine past NYC curfews when we are now going to have a week of 8PM-5PM curfews, something that are rare in our city's history even in a limited form.)

===

The practical effect might be the same on some level (not much) but June means more presidential delegate-wise with more backloading.  There was seven states and D.C. with presidential primaries (other states had elections too) though many were small in delegate count. The big ones were primaries pushed back (Indiana, Maryland and Pennsylvania).  The other races also included some notables.  Valerie Plame did not win her primary. She is a familiar name but did have some baggage.  The Republican so bad that even his own party, Steve King, lost his too.  (The replacement isn't exactly ideal but safe enough that it will make it harder for the Democrat to win in the conservative district.)  OTOH, Greg Gianfonte, the Montana representative, won his primary. I gather he didn't hit any news people this time around.  [He ran for governor this time.]

479 presidential delegates were at stake (270 to Win figure), but over 100 delegates has yet to be apportioned.  Biden now has somewhere in the low 1900s with 1991 needed to win.  For the sense of completeness, it is unfortunate that New Jersey postponed their primary or it might have sealed the deal (though with many PA votes not to be counted to next week -- a theme that might be kept in mind in November if absentee voting is used more -- we still might not know for a while).  BTW, I saw an article that Biden wants to pick his v.p. by August 1st, so people who want him to speed that along from the usual timetable might be disappointed. 

There are more to apportion, but it is fairly telling that the preliminary numbers has Sanders around in the single digits.  Sanders is hovering around 15% in multiple states.  Biden aced Maryland with over 80%.  As of now, Sanders did a bit better in Pennsylvania (which again has a chunk of the delegates) with around 20%.  Warren had her name taken off that ballot; some postponed elections (including NY) have long forgotten people still on there.  Biden has over 75% in D.C. as well  but there Warren edged Sanders, 12/10.  Both are below the floor, so we have not had any "zombie candidate" other than Sanders (a sort of asterisk) gaining delegates since March.

One thing I have referenced, but has basically received no attention generally from what I can tell (somewhat unfortunately), is the Republican presidential primary numbers. Yes, they exist.  As of now, a little over 5% didn't vote for Trump in Pennsylvania and Rhode Island while Bill Weld actually received nine percent in Indiana and about 12% in Maryland.  Around six percent and eight percent were "uncommitted" in Montana and New Mexico.  These are AP's numbers and I don't see any for D.C. Yes, these are small, but we are talking nobodies (in some cases literally) running against him though Bill Weld is sorta someone, if one I have not heard about for months (and not much then).

Virgin Islands [Guam now too] on Saturday and Georgia/West Virginia next Tuesday.  Georgia has over 100.  We also have delegates to be allotted. So, Biden should officially have enough next week though we are at the point when the non-Sanders/Warren also rans provide him the margin he needs.  Also, there is reportedly a Republican primary in Puerto Rico on Sunday.

Update:  At 8PM on Wednesday, at 270 to Win:

Joe Biden, the presumptive nominee for nearly two months, is just 35 pledged delegates away from the 1,991 needed to clinch the Democratic nomination.  This is based on the latest count of the Associated Press.  Biden has thus far claimed 390 delegates from Tuesday's primaries, with Bernie Sanders earning 33. There are 56 delegates still to be awarded. 

The over 75% (though Sanders did meet the floor) in PA helped a lot with those number.  It's 129/21 so far with (by one count) 39 delegates left.  Again, you might have to wait to next week to get some of those delegates. But, with single digits also coming this weekend in VI, we might have confirmation before the Georgia/WVA races.

The general approach seems to be to have some for let's say the state as a whole and then district by district. There is a 15% floor so Sanders won't get any if he doesn't meet that.  In fact, only an agreement with Biden to allot loyal Sanders voters even gives him any statewide delegates.  Thus, though the rule has yet to matter yet except to lose a few existing delegates, even if another candidate who suspended managed to get that, the state-wide delegates will go to Biden.

OTOH, they still get district delegates. Being a nerd, I'm aiming for someone to get at least one more.  The New York court opinion noted that it was not going to rely on any such agreements (Sanders would likely have received NY delegates regardless) since they were not officially in place.

Virtual Supreme Court / NYC Curfew

I was helping someone stressed out about working from home and checked my phone. What now?  Yes, there was a city-wide curfew -- which might have last happened in 1943 after the shooting of a black solider -- from 11PM-5AM.  Actually, (edited), the curfew there was only for a two mile area (Harlem).  There also (though the immediate coverage didn't flag it) from a quick search (flagged by a reply to a tweet) that there was a curfew arising from looting etc. during the 1977 blackout.  That still was over forty years ago.  Anyway ... Telling people that hours before it occurred seemed a bit late in the day.  I might have to up my agreement with people who have been critical of the mayor's reaction to various things.  Note, btw, his own daughter was arrested at a protest over the weekend.  There is a curfew tonight from 8PM-5AM.  This is just because Big V restrictions are lessening a bit.  2020 needed to give us something else.

I'm in a bit of bubble here as compared to many who live closer to where the battlefield, and it comes off as one with violence, burning and so forth, or who are on the front lines (including multiple reporters who need to deal with rubber bullets, tear gas and so forth).  Just to emphasize here, we are not "just" talking about a few people killed by police for petty shit.  (Not that even the most horrible murderer lacks a right not be be killed by chokehold.)  They represent years of actions, including lesser engagements with the police and government.  Those qualified immunity cases pending at the Supreme Court as well.

As the last reference suggests, yes, it is Supreme Court time -- Monday was order/opinion day, multiple opinions dropping.  The theme, however, is not much happened.  For instance, perhaps for procedural reasons, a mandatory bar dues case that was given some attention by court watchers was not granted.  Justice Thomas (who dissented in various cases today, sometimes joined by Gorsuch -- as here -- or Alito) would have taken the case. And, given the Janus case, yes, the issue very well might be something that logically would be taken to draw lines at some point.  For now, denial and no other thing of note in the Order List. Gun/QI cases still pending.

The divisive case was a 5-4 (split ideologically, Sotomayor with a strong dissent) was one not getting much attention.  I won't pretend to know who had the better argument though as a matter of principle support less restricting standing rules.  As SCOTUSBlog summarizes: "participants and beneficiaries in defined-benefit plans do not have the legal right, known as standing, to assert fiduciary breach claims, at least in the absence of catastrophic plan and sponsor failure."  This is a case where the law is set by two tainted "justices" who will continue to so determine the law for years to come.  As the Senate does little to address these times, including not providing more funds for the average person, they did confirm another lower court judge.

The big case that dropped turned out to be unanimous -- the Puerto Rico oversight board appointment process was upheld (Breyer getting the opinion made pretty clear this would be the result).  This has been pending for a while, so one wonders if some behind the scenes negotiations was involved.  Justice Thomas concurred separately, which is not surprising in a constitutional case, but the other person who wrote separately was Sotomayor.  Sotomayor has a personal connection here, her parents coming from Puerto Rico, but she is often the spokeswoman of the powerless. The request to overturn the Insular Cases, which did not apply the Bill of Rights to the territories, was avoided. But, Sotomayor did voice her concern that the appointment process did not protect the self-government of Puerto Rico.  (Later in the week, as with her statement in response to an order, there were revisions to the opinion noted on the website.)

Defendants also, both by 7-2 votes, received relief yesterday.  The Convention Against Torture can be used to ask courts, if only so much, to review factual findings used to deport someone.  The summary notes that a low bar has to be met by the government here and it is unclear how much bite it will have in the long run.  But, it's important to give people a hook and provide judges some discretion to give you a chance.  Another case, a technical habeas case [though the facts are notable to me too -- someone killed a cyclist while allegedly under the influence of cocaine and received a thirty year sentence ... in 2002] will go down easier for the reader since Justice Kagan handled it.  The final case involves foreign arbitration and it was unanimous with Sotomayor briefly noting a protection provided.

There are still a bunch of hot button cases to come, as usual backloaded to mid to late June, so the term is not quite as mild as it might come off.  There are less cases though those postponed appear to be fairly minor.  The biggest punt so far is the New York gun case, but there were signs that was a bad vehicle pretty early.  It is fairly clear that the conservative justices (perhaps even the liberals, if they want to find the path to the least harm) are carefully deciding what case of the many pending there to take.

But, the end of the term always has some "to be continued" cast. 

Midnight at SCOTUS: Roberts v. Kavanaugh

[It is Supreme Court related, but separate, and also was reported earlier so will note this here.  Checking to see if the Twitter related executive order, previously referenced, I saw that Virginia Thomas was nominated  to the Library of Congress Trust Fund Board.  Did not see it referenced by various Supreme Court reporters I keep track of, but did send a notice to the SCOTUSBlog morning wrap-up person.  Don't know if other justices' wives had such a role in the past.  Seems notable at least.  More so her role in personally associating with Trump to try to get rid of "snakes" not appropriately loyal to his Administration.] 

I started a thing in the middle of last year where I take off from tweeting during the weekend so signed off shortly before midnight.  Supreme Court orders/opinions on Monday, set of primaries (if not quite enough to get Biden over the hump) on Tuesday and likely some other stuff.

Well, apparently, could have just kept on.  The protests touched upon previously continued to have new wrinkles.  And, the Supreme Court decided to drop another order involving a request to allow a California church this Sunday to not follow limits in place -- to quote the summary, "to hold services, as long as they limit attendance to 25 percent of their building capacity or a maximum of 100 people and practice social distancing."  The Supreme Court early evening rejected another Illinois request, noting the rules had change and they could challenge them.  Likewise, it rejected a prisoner request, noting that there was a grievance system in place that should be processed promptly.

The Supreme Court only dealing with one of the church challenges might have been a red flag to those who keep careful track of such things. The whole thing here has inside the cathedral flavor to it.  The late order isn't on the "orders page" but only the lesser known "opinions related to orders."  Yes, here there were opinions related to the denial, but there tends to be a regular order (such an order list but also some stand alone denial) and separate separate order in that section.  I have seen, for some reason, not done some in the last year or so.  Not doing a "deep dive," it is not clear to me if this is just a new policy or some message is being sent. 

More importantly, Roberts concurring separately at all is notable, more so here.  He was not only the fifth vote to block the injunction, but was making a point regarding providing discretion during the pandemic (note how he consistently rejected special dispensation in cases involving voting rights, prisoners and churches).  The citation of the 1980s Garcia case might be telling too --  that is a federalist battle cry and he cited the majority as a sign that the courts should give states discretion to make policy.  This would be especially case as governments were addressing ever changing facts on the ground, highlighting the lethal nature of the virus etc. (he did not quite RBG's dissent in the Wisconsin case though).*  Let's see how he votes in June cases.

Alito did not join the Kavanaugh dissent though dissented from the denial.  Alito has over the years shown some consistency regarding free exercise claims, even giving a religious angle to a stun gun case (less lethal/can appeal to people on morally; I actually send him a letter to thank him though unlike Sotomayor, he didn't reply).  And, Alito was wise to do so since the dissent was based on this assertion: "The  Church has agreed to abide by the State’s rules that apply to  comparable  secular  businesses."

This has been addressed a couple times on this blog and one wonders if  Kentucky, e.g., will have grounds get a second bite of the apple.  SCOTUSBlog summarizes how the state here pointed out that a church service is not like a store:

California (along with San Diego County) and Illinois urged the justices to deny the churches’ requests. They began by explaining that indoor worship services are different from retail stores or businesses because people are more likely to gather in close proximity for longer periods of time. Moreover, they added, the singing and speaking at worship services “increases the danger” that people who are infected with the COVID-19 virus will “project respiratory droplets that contain the virus,” passing the infection on to others. Indeed, they noted, there have been several examples of significant COVID-19 outbreaks linked to worship services.

The Trump Administration has been reported to be especially concerned about singling out religious services here for understandable reasons given their base. The concerns for choirs specially were flagged in a recent article.  Religious liberty does at times require care but that is a two-way street as well.  To quote the end of Roberts' concurrence: "The  notion  that  it  is  “indisputably clear”  that  the  Government’s limitations are  unconstitutional  seems quite improbable."

===

* Roberts cited the Jacobson v. Massachusetts case as well as one from 1970s, involving denying a drug rehabilitation alternative if the person was guilty of two felonies. That opinion had three dissenters but this quite quotable bit, which Roberts took the first part of:

When Congress undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad, and courts should be cautious not to rewrite legislation, even assuming, arguendo, that judges with more direct exposure to the problem might make wiser choices.

The provision there was thus upheld in each of the courts for which a challenge was brought. The dissent has some bite on the facts though this part also shows it was coming from a mindset just not prevalent at the time: "we must be mindful that the growing concern with treatment of narcotics addicts has not arisen in a legal vacuum, but has paralleled a growing awareness of the Eighth Amendment questions raised when criminal punishment is imposed for activities which are the symptom or direct product of the disease of narcotics addiction." The oral argument also flagged that prisoners also received some drug treatment too. 

It should be noted all cases here are not the same. The Wisconsin voting rights case was not necessarily rightly decided because Roberts was consistent.  And, applying the rules there with special actions taken given the situation, is different too since here we have state rules that are being challenged.  There, we had a claim a federal judge overreached by providing special actions to deal with the situation. 

George Floyd Death / Protests

Update: The MN AG, who once was the deputy head of the DNC,  was put in charge of the Floyd investigation and had an update on the charges.  He now announced there is evidence warranting a second degree murder charge (if so, fine enough) and charges for the other officers.  As referenced here, the local investigation at first had issues.  A basic necessity is a quick and careful process, one that if done here might have led to a different reaction. An important factor here is a more above the fray person in charge.  Early charges that can be changed/removed later also is possible.  It all is a reminder of how far we have to go that in 2020, over a half-century since the height of the civil rights movement, we are still here with so much more to do.

There are reports NYC is ten days away from the first step of "re-opening" (though this still includes various limits, including masks and from what I can tell no regular restaurant service -- for me personally, it won't change too much.  This is far from "normal" and there is a lot of lack of clarity and possibility of much more death and suffering in these times.

The focus of the nation now is one particular death, one made only more symbolic as new details come out.  For instance, reports are that the police officer and arrestee (one fired and then arrested; the other dead) worked as security in the same club.  George Floyd, dead by being knelt on the neck for eight minutes, had an up/down life but was recently was a security guard who lost his job ... well, you know why.  He was arrested for allegedly passing a bad $20 and accused of "resisting arrest."

This was on Monday evening, and as these things do, was filmed by observers  (a recent event when a bird watcher asked a white woman to leash her dog in an area especially for birds was as well; turns out the guy she called the police on, emphasizing a black man was hassling her, was Chris Cooper of Gay USA!).  The next day the officers involved were put on leave (this being in Minneapolis) and then fired.  So, it is not like "black lives had no meaning." Firing police officers isn't a minor thing.  The mayor supported the move. Both local and federal authorities started to investigate.  But, George Floyd is still dead.

(A lawyer I follow on Twitter argues that if some average person did what was done here, killed a man and it was on tape, the person would have been arrested the next day. Probable cause to arrest. Arrest, no protests.  I simply don't know, and yes, some people are treated differently here. He was fired almost immediately.  I get that isn't enough.  But, this whole thing is a matter of days.  Arrest of a police officer, even of the average person, is not just some mild discretionary act.  The case below is telling in that regard.) 

In March, a twenty-something black woman  (Breonna Taylor)  was killed during a no knock raid related to a drug investigation. Various developments, including the announced resignation of the police chief and release from detention of her boyfriend because of corona virus concerns have occurred since then.  Taylor's house alleged received illegal drugs. She herself was an emergency medical technician. and once worked for Louisville, Kentucky, which is where the shooting took place.  This Twitter feed, from a journalist who had rubber bullets shot near her at one point, provides some reports and video of the protests yesterday. 

There has been various protests, including in my city, largely focused on the George Floyd case but clearly he is but a representative of a wider problem.  There was a statement by a union that city bus drivers would not assist with transporting arrested protesters. The mayor was criticized for not doing more to address excesses by police on the ground, one more example of criticism of him in recent months.  I have little direct cause to find fault with the guy really but the evidence it is time for a change is increasing.  It also seems that the protests are a sort of release from a nation partially under lockdown ("partially" since the limits are in no way akin to actual lockdown; the DOJ choosing last night to announce -- in caps on Twitter -- this lawsuit because of alleged overreaching involving car washes and such is moronic).  There are also reports that it is being used by third parties for disreputable anarchist and disorder reasons.

I am a white guy from a middle class area where there is nearly no police presence.  So, I know my lane.  Don't find the protests and rioting shocking really but there is a mixture of things here. Don't find looting Target or setting fire to McDonalds a sane approach here, even if we can in some wider sense see it as a response to society's basic violation of basic responsibilities. Take to the streets. Block traffic. I can even see (though rooting for police stations to be burned since you know -- okay, privileged white professor type -- cops are just all fascists anyway -- is to me sort of an asshole move)  targeting police cars or whatever.  Very wary of that shit, but that is logical reaction.  A Target?  Burning McDonalds, and probably hurting members of the community who work there?  OTOH, talking "logical" is probably also a bit misguided too. Levels though. Levels.

Various snapshots. Those rubber bullets. A camera crew being arrested, after the reporter calmly started to report in a way that if anything made the police on the scene seem organized.  They were let go within a few hours, the charge being that they were asked to move and refused.  A white woman police chief (another fascist cop, I assume) in Georgia calmly listening to protesters and reassuring them she understands and agrees Floyd was not how police should operate.  Note she isn't wearing a mask. Mixed bag there, looking at the photos. A final thing is that there was a thing where various people referenced the Boston Tea Party, since that too was a "riot" and involved a lot of property damage. Yes, a lot of property was destroyed, but it wasn't a riot. They had riots back then. They tar and feathered people.  They broke into the homes and looted government officials.  But, the Boston Tea Party was an organized act of protest, led by people of fairly high standing.  It was not akin to looting a Target.

George Floyd's killer was arrested, charged with third degree murder (lack of premeditation; the work connection is curious, but beyond reasonable doubt proof available? doubtful) and manslaughter (lack of depraved mind).  He had a record of excessive force violations, including one that came near the end of Amy Klobuchar's term as prosecutor.  Some flagged this and how she did not bring a prosecution in this and other cases.  But, it is not like she did nothing.  She carried out a far from atypical policy of sending things to the grand jury, which here did not indict.  She later said she changed her mind on that policy, showing that things have changed  over the last 15 years on race as much as #MeToo.

Joe Biden provided an empathetic statement for George Floyd and how we have a responsibility to address racism and police overreaching. He does that well.  One hopes we shall see him in action.  Trump responded to the protesters as "thugs," tossed in a partisan attack and used a 1960s dogwhistle.  The Obama Justice Department had multiple reviews and consent agreements arising from police overreaching.  The Trump/Sessions Department went another way.  As with criminal justice matters generally, some were upset Obama did not go further.  I found that a tad unrealistic but let's not (like the Sentencing Law and Policy Blog guy) lose perspective on the differences between the two administrations.

(Note the first link there speaks of Twitter flagging Trump's tweets, a follow-up from an action regarding him promoting some conspiracy theory involving the long ago death of a congressional employee of "Morning Joe" leading to action too.  This pissed off Trump and he responded with an executive order that is largely bluster bs, but as noted there, still is problematic.  As I underline in a comment, AG Barr being there as it was announced shows the taint in the Justice Department.  Multiple people also flagged him defaming Rep. Adam Schiff by name there.  Not in a tweet.  In an official executive order.)

We continue along in our tainted ways.  A man dies because police use excessive force while arresting him for allegedly passing a $20.  It is unclear why such a person was not just given a ticket and told he had to show up for an appearance.  The talk of resisting arrest appears to be dubious.  A medical tech dies in a drug raid where at best allegedly there were drugs present; it wasn't as if drugs were being allegedly sold there from my reading. The abuses in such raids have been detailed for years.  New York still has not decriminalized marijuana.  "Defund the police." Yeah right.  We will have crimes.  We will have arrests.  But, there is a way to limit the damage.  I still wonder about the citizen militia concept, using members of the community while arresting people etc.  Handling protesters and reporters respectably also is possible, and as noted, many did. Also, some of the mishandling of the press came from civilians.

This essay regarding letting felons vote -- to the degree we should keep a mark of Cain on people after they serve their time -- is germane here too. I have been keeping track of this issue for at least twenty years, felony disenfranchisement, including mistakenly depriving people of their right to vote, factoring into the mess in Florida.  Significant progress, including in Florida, has occurred in this area.  We even had a major presidential candidate say even convicted people in prison should vote -- something done nearly nowhere in the U.S. now.  The problem lingers with special wealth and race implications that to me makes it unconstitutional as a whole as well as lousy policy.  A few tragic cases of people mistakenly voting and getting prosecuted only is a small part of it. 

The protests continue.  It is likely the case we should had more, including in response to Trump.  One loses track; so instead of addressing George Floyd or something, he announces breaking off our relationship with the World Health Organization in the midst of a pandemic.

===

* Years ago, I was wrongly arrested, put in a little cage with about twenty people and needing to spend two days in court for allegedly not paying $2.75 in an outside bus kiosk -- I shoved the tiny slip in my front pocket and forgot about it ... I only checked my back pockets as four police officers stood over me & only found it after leaving ... they put handcuffs on me etc. ... nice trip to feed a relative's cat.

It's a petty thing but my little personal experience with the crudeness of the criminal justice system.  When I wrote a letter about it to some criminal justice group, they weren't interested.  Someone else could have lost a job for missing two days of work or something.  Someone died in prison of the virus, being arrested for some petty shit.  We can't "end prisons" but there is a lot of room to cut back there. 

Various TV/Film/Book Thoughts

I saw that "Cathy" -- who we last saw married and pregnant ("Ack) -- is back in single panel segments for the Big V era.  Also, there is talk of consideration of "grab and go" (hey, it works for food at schools) books at NYPL (closed since mid-March), which is something I was thinking about too.  In lieu of libraries, I have been buying a few books and re-reading.

The latest was Charles Beard's famous defense of judicial review as a matter of original understanding (intent maybe back then), this version a 1962 edition with an interesting introduction by Alan Westin.  Beard's book itself is more of long law article, under 100 pages long, and is fairly readalbe though at times a bit tedious. It also is fairly convincing and he even notes that he is not saying it is somehow now binding. It is just an exercise to show that it is as we would now say "originalist" and at the time of the first publication (1912), that was somewhat controversial for the left leaning crowd he was appealing to in other writings.

Now, I'm reading Holly Hope's 1980s reminiscences about growing up in Kansas (born in 1950s) with the second half a collection of interviews.  The book was recommended as a way to understand the era, as I recall in a book about Harper Lee and her assistance in writing In Cold Blood.  I could not find much on the book itself or what she has been doing after writing Garden City: Dreams in A Kansas Time.  The book itself was probably received via Amazon (the owner reportedly might be a trillionaire too but sorry it is still rather convenient; plus someone told me one "alternative" -- AbeBooks was owned by them too!) and does provide a window at a run of the mill girl growing up in a Kansas town.  As the review suggests, it is not comprehensive or anything though maybe that wasn't the point.

One thing that was noted here over recent years is that I have been less inclined to watch television than in the past, even though there are lots of new shows (even without other platforms, which I do not have) on various cable channels that are available. One thing I do sometimes watch are old syndicated shows, including as noted Friends.  Without access to NYPL, I bought the last season cheaply on Ebay, buying the first there because the NYPL for some reason doesn't have that one.  Meanwhile, no one (tried lots of times) seems to want to spend $5 total for that first season DVD set.  Also, I'm watching a bit more of The Big Bang Theory, which is on repeatedly (including at night 11-12) on syndicated channels. 

Anyways, even with Hulu no longer providing free stuff like when I saw the run of Major Dad there, online does provide a lot of free video too.  I saw Madchen in Uniform, the classic German lesbian themed girls school film on YouTube.  Not all of it, but much of it (the version I saw was split the video into like six parts), and it is rather good -- very good performances, insights at the girl school experience and not the sort of too slow/boring quality of some 1930s films.  I checked out a bit of the 1950s remake and it really didn't seem as good, including the main girl looking more "movie star student" and the teacher not as good either.

The Supreme Court (6-3) recently determined unanimous juries are constitutionally required for state courts (Puerto Rico is starting to apply the new rule).  In the 1970s, the Supreme Court allowed six person juries in state cases (is that rule next up?) including for purposes of the 7A. The case that first upheld that in passing noted that the right to a jury (to be specific, an impartial jury) from the beginning did not consistently have all the common aspects of a federal jury (twelve, unanimous and so forth).

As with other various cases, the case that drew the line at five had other non-criminal process implications.  This often included equal protection and First Amendment issues, which thus fits into the general tenor of this blog entry.  The case concerned a prosecution for the airing of the well known porn film Beyond the Green Door.  Georgia had a few of such cases.  The Supreme Court said that it was a bridge too far to prosecute Carnal Knowledge.  OTOH, they left stand a prosecution of Deep Throat.  Prosecuting all three is ridiculous.  As to me was a prosecution summarized thusly:

The Illustrated Presidential Report of the Commission on Obscenity and Pornography, and an obscene advertisement, which gave information as to where, how, and from whom and by what means the Illustrated Report might be obtained.

I guess the advertisement could be considered a form of pandering, a factor used to determine obscenity.  But, though maybe this wasn't directly involved in the issues presented (Justice Douglas in his separate dissent referenced it but the other dissent relied on other matters), illustrating a major national report seems to meet the "whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value" prong of the then new and so-called improved obscenity test.  The other movies might have had prurient material that some find patently offensive, but why one could not go to a closed off public movie theater to see them -- home movies not quite a thing in the early 1970s -- is a tad clear, let's say.

The opinion of the Court here noted: "application of the community's standards and common sense is important in obscenity trials where juries must define and apply local standard." But, an argument that the 1A made special rules required here was not taken up specifically (four justices made clear they felt obscenity prosecutions are generally unconstitutional; four didn't join all the discussion, three in particular calling out Blackmun for "heavy reliance on numerology" and "studies relied on merely represent examined findings of persons interested in the jury system."  Rather harsh.  Justice White briefly concurred as is sometimes his wont. Only Stevens fully joined his opinion, himself referencing his earlier opinion against obscenity prosecutions.  Why not have one of the other three write the opinion then? This business where they can manage to find something that five agree on is a bit annoying, especially when it is down to an opinion of two or three people. 

One more thing: Last Week Tonight a few weeks back had a good segment on the post office, which is at risk now, especially with board members now leaning Trump.  The US Post Office provides a means to order specialized stamps and the show has a sheet with stamps related to the show.  I bought a sheet (20 stamps -- .55 each with a $3 S/H charge). 

Virtual SCOTUS Update

And Also: This article discusses how thought there is a shortage of blood that only Manhattan and Staten Island have permanent blood donation locations.  I'm with the woman -- speak as a blood donor for many years -- who doesn't think an extended subway trip is a good cost/benefit equation.  Put aside that on top of that, there will be another better part of an hour spent with a mask.  If blood is in so high demand, have more places to give them!  It's stupid as a rule that the Bronx (or even Brooklyn!) does not have a permanent center and Manhattan has several. 

Since the last Order List, we had three miscellaneous orders (note that separately things happen like requests for briefing from certain justices, relisting orders for conference discussion and other stuff that might just be on the case docket page).  Each are fairly important in their own ways though putting aside the execution matter there is still battles to be fought.

A troubling execution, as previously flagged, was allowed to go on without comment.  A battle between the House and DOJ over Mueller Grand Jury materials (taken up about two weeks before) continued with a cert petition due June 1 (the House as a back-up asked for an accelerated deadline).  And, a divided 9CA request from Idaho prison officials to block court-ordered sex reassignment surgery for a transgender prisoner was rejected though Alito/Thomas (without comment) dissented.

The scheduled Order List day for this week, delayed a day because of the holiday, was mostly a "see ya in June" affair.  Few things of passing note. Alito/Breyer ddn't take part in a denial for unstated financial conflict reasons.  A pending House bill would require notice unless there is a clear reason not to do so.  The wife of a deceased trans challenger replaced her though it might be notable that "wife" or "spouse" is not referenced, but "Trustee of the Aimee A. and Donna Stephens Trust" used instead.

And, the no comment passing of a California Voting Rights Act case was notable over at Election Law Blog.  I didn't note it, but a past order list not taking up any qualified immunity cases even regarding a blatant injustice was of some note to various court watchers.  OTOH, the Court held up deciding multiple gun disputes; to recall, we have two very tainted people having a key role in all these cases, including pending major disputes that were first heard in October and November.  #ButGorsuch  One major dispute that is a live controversy is the lines of delegation, which this article notes is perfectly fine as an "originalist" matter. 

But, who knows what that word even means. There is a conference scheduled on Thursday and June 1st (it's June!)  will at the very least have an update on the grand jury controversy and probably more orders.  Be unsurprising if we also have opinions that week too.  As noted, there are some major cases from last fall left though finishing the May bunch by the end of June might be unlikely.  We did have July opinions in the past.

I held from posting this since there often is -- for some reason that seems suggestive but it is not like they explain themselves -- some other separate order later in the day.  And, yes, from Kimberly Robinson: "#SCOTUS rejects Trump administration's request to halt court order requiring certain safety measures for covid-vulnerable inmates. But it's really a procedural ruling, noting that the administration hadn't appealed newest order."  The three most conservative justices still dissented (without comment), which is a tad gratuitous.  The order going out of its way to hedge is suggestive and is often the sort of thing you settle with when dealing with Roberts and/or Kavanaugh.  I hope Kagan has some outlet from always battling.

(SCOTUSBlog with more details. Seriously, TAG?)  

Also saw that among the graduation speakers this year was Chief Justice Roberts for his son's high school graduation (not the first time he spoke to one of his children's class).  He had a message of humility and compassion. Me personally, I think it would have been nice if Roberts made a statement before the telephonic arguments (saw one Chief Justice of a state court doing this), taking notice of the times and thanking all for dealing with it.

But, they went another way, basically trying to stay above the fray.  We even have to hear indirectly, from the Court's spokeswoman, that they are in good health though RBG does provide press releases regarding her medical condition from time to time.  As to the telephonic arguments, I noted in the past that SCOTUS vet Lyle Denninston was not really fan. Think he had some good points but was too critical.  For whatever reason, he had been more actively (he retired in his 80s a few years back) commenting lately.  See, here, a sort of general reaction.  One issue I had was that it did not cite the long practice of video in other supreme courts.  Leah Litman had a report that suggested some gender discrimination.

I appreciate criticism of the telephonic arguments though as a whole did think they went fairly well, especially given their novelty. Think live broadcast also worked.  The "seriatem" approach has its ups/downs, including providing a path for some justices (especially Thomas) who might otherwise be crowded out.  I'm basically fine with Breyer's long-winded old slightly befuddled law professor questions but if they need to be pared back some to give other justices time, fine.  The issue of cutting justices off too in an unfair way can be addressed, but it is not like the normal approach is so much more ideal in that area.  The concern for more crosstalk to allow justices to push against each other is valid though again I think there is some way to do that here too even without some probable behind the scenes communication between some justices.

Again, multiple supreme courts, including in these times, used video and that helps some of these things.  Anyway, more might come but I'll post now.  Like with primaries, there is more to say than one might think. 

Friends: The Last One

This was the season that at first was not planned to occur (there were enough episodes for a good syndication run) and one that not each cast member was that gung ho about. They were already starting to get new post-show roles and their new schedules also had to be worked around. It was decided to make only eighteen episodes though multiple ones were extended, so there was the same amount of content over twenty.  Thus, there was some additional cutting to fit into syndication.  DVD episodes already has extras bits and syndication often cut off final credit scenes as is.  There is a new set, I think, that found a bit more material. 

Each season has something of a "reason" for it, such as the previous two being largely focused on Rachel being pregnant and having the baby with other subplots. So, e.g., we had the risky but fairly successful plot of Joey falling for Rachel. What was left open here really? Two basic things: Chandler/Monica for a while wanted a baby and that was not addressed. The other matter was Mike, who it was flagged was someone serious for Phoebe. The second could have been addressed if Season Nine was the final one. A couple episodes were Phoebe focused there including one of the best episodes of S10 (her wedding) but not much time was spent there really. Mike/Phoebe seemed times less of a concern than even Chandler/Janice though Mike seems nice enough. A bit bland.

One common thread here is the absence of Ben Geller though he is referenced at the hospital when Emma is born but afterwards basically disappears. It would not have been hard to at least mention him more often.  Have the child actor with his baby half-sister at least once.   Rachel's mother not being around at the hospital is clearly a matter of casting a name actress, but addressing Ross' son -- hey, maybe even reference the moms moving away which is how one explained it years later -- could have been easier. Rachel's dad does pop up in S10 in a pretty good episode. Ross continues to shine in this season. In the last few episodes, it is apparent "Monica" (who in a commentary it was noted had her own pregnancy issues) is pregnant in real life. Monica and Rachel are the ones who clearly aged, especially since Courtney Cox is older than her character anyways.

This review looks pretty good.  It references the now standard case of Janice popping up.  Always fun but yeah there seems a bit recycled here, even pretending Chandler still wants her to keep her away.  Janice in an earlier season had a serious moment when she met Rachel, talking about her marriages.  I think they could have gone another way here too. It is almost forgotten that once Chandler was stricken breaking up with her, their break-up scene other than the questionable ending (going for comedy) rather touching. I think now that they all matured some more that a different approach that touches upon that some would have worked better here.  It adds to some plot laziness though that pops up (at times late in the season) in past seasons too.

Basically, I think as originally planned, it was possible to make things work with nine seasons though (with some lame aspects) it worked fairly well.  S9 was good as a whole.  The Rachel likes Joey subplot, which even the actors didn't care too much for, easily could have been removed.  The Charlie subplot was okay enough, with some amusing moments, but that too was disposable (as were some other moments; even the Rachel/Paris subplot though the last night episode was especially touching) to fit things into one season.  The Phoebe break-up/back with Mike stuff wasn't really necessary though it did allow one more David moment.  S10 did have some good moments, all which might not have fit.  Rachel/Phoebe's siblings had nice returns. One more flashback and Thanksgiving (the first half was mostly filler), plus Emma's birthday.   And, the surrogacy handled in a bit of an abrupt manner, though Chandler shined in the episode where they were picked and the meeting of another adoptee couple was amusing.* 

Series Finale has various callbacks including a reference to Ben that was nice too but it really would have been nice if we actually saw Ben and/or his moms one last time.  The twin surprise in the commentary was as with some other moments admitted to be "because the funny" and yeah the thing that comes to mind is that Monica would have wanted to see the ultrasound pictures where that would have come out as well as other medical materials.  It is suitable that one of the people in the commentary was emotional at the end since the cast was as well.

We have the usual three episodes (the Thanksgiving episode and finale is expected; the stripper one too really with the flashback material and it being a favorite of one of the producers) of  commentary.  There are also bloopers (including the first four seasons) and interviews of some guest stars (Charlie, Amy and Mike).  Christiana Applegate was one of the three guest stars who was in that segment but she did not note that she worked with "Joey" in Married ... with Children. Time goes on -- she is basically my age and I first saw her as Kelly and she aged a lot there, in a series that ran even longer (somehow) than this one. 

There is a also a documentary with talk from not only the producers but also the stars. "Joey" as the others say goodbye (the segments taped before the last episode aired) notes more was to come, probably in reference to his spin-off.  Other than one special documentary of producing an episode on one DVD, we get very little of the cast [bloopers give us a sense] as such in these DVDs extras so this is notable.  For instance, "Ross" directed several episodes (two of Joey), and it would have been interesting to at least get a comment.  More so to get him to do a commentary track of one of the ten he directed!

As with the first season -- which is not in NYPL -- it was worth to pay about $5, this time since the library was closed.  Nice box too.  Anyway, need to find a new series. This was fun.  A reunion was scheduled this year though its release has been delayed because of ... you know. 

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* Anna Faris played the surrogate here and it is sort of an in joke since she was in a parodies franchise significantly about the films Courtney Cox were in.  She had a few appearances here, but was not too notable.  The potential here is seen in the surrogate arc in Rules of Engagement, including Audrey wanting to be part of the process and being jealous at times of the surrogate.  We get more in past seasons too, back to S1 where Monica's desire for a child was first seen, including signs (before the writers thought it would be a thing) of a special connection between her and Chandler.  The two simply work. I'm Team Chandler/Monica.

Opening Schools in the Fall and Big V Constitutional Liberty Issues

I agree that the linked piece regarding the perils of returning to school [specifically college and so forth but the concerns are largely applicable to lower grades] in the fall and the conservative views on certain subjects helps provide common ground.  In the comments, it was noted that special concerns should be given to return of schoolchildren.  I agree since we are dealing not just with the needs of parents but children, who have more of a need for education at that age for different reasons.  Relatedly, though the complaints at times seem a bit exaggerated, there are grounds to worry about Zoom teaching:

For reasons I describe here, in-person teaching has important advantages over online instruction. Among other things, in-person teaching makes it easier for faculty to make eye contact and otherwise gauge the reactions of students, and to make sure that the latter are "getting" what the instructor is saying. Being in class also makes it easier for students to stay focused and effectively interact with each other.

A Trump supporter complained about "moral panic" and "overreaction" of what something (other than New York and maybe a few bad apples) was basically "a bad flu season." Mark Field in a later comment noted something like 12x (in May) normal net deaths is a tad worse than that.  Also, the person failed to (as is his wont) be evenhanded both selectively citing information and in apportioning blame. He alleges there is "Trump Law" that selectively targets Trump.  I think he practices the reverse.  Anyway, as I note there, such complaints are overblown and 100K (so far) etc. if anything warranted more action though the various things done including social distancing and isolation followed standard protocols.

Another person went back/forth with someone even less worthy of reply (though for years people have, with a mixture of vitriol and facts) regarding how government regulation here overlapped with traditional methods. The usual cases here involved regulating transit points, particularly quarantining or blocking entry totally of ships and people.  The broad sweep of such principles (see New York v. Miln) was limited somewhat in Edwards v. California, which barred blocking entry merely to keep out paupers.  Nonetheless, the basic principle appears to be good law.

There is, of course, a sphere within which the individual may assert the supremacy of his own will and rightfully dispute the authority of any human government, especially of any free government existing under a written constitution. But it is equally true that in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.

Not that we have many recent precedents that appear on directly on point. If so, it is unclear why Jacobson v. Massachusetts (1905) is quoted so much.  That case involved a state compulsory vaccination ($5 fine, which was notable but not confiscatory at that point) that was used during a smallpox epidemic. And, there was a process set up to determine if the vaccination was necessary, which was met there. Finally, the opinion left open a special case where the vaccination would case special harm to the person in question.  The link shows that there was some allegation of particular harm, but apparently was not strong enough for this exception.  Likewise, the law was not applied in an "unreasonable, arbitrary or oppressive manner."  Note two justices did dissent.

So, it was not a compulsory vaccination of a baby, let's say, as an absolute rule.  The opinion has various quotable language such as how the minority protected by a locality could not in such cases allege a right to be excepted from a general law passed in protection of the community.  In Prince v. Massachusetts, a 1940s case allowing applying child labor laws even if the behavior is religious in nature, the case was cited to show general applicable laws are valid in such a case.  The cases that grant exemptions to my knowledge was in applying statutory exemptions and maybe RFRA type laws. That question is still somewhat open. 

And, in Planned Parenthood v. Casey, the law still was cited in good law, but that the general state interest in protecting life was not strong enough to meet the test to justify a general abortion ban. This would be a useful citation against various attempts to severely limit abortion rights without good cause during the pandemic.  As noted here, in general, modern day views of liberty would in various cases be more stringent than in 1905.  It is unclear, putting aside ability to send children to school or something, if a compulsory vaccination program of adults would be allowable. Various cases against compulsory medical procedures can be cited. OTOH, one can be detained in a mental institution if one endangers others.

Though dealing with the breadth of action present today has no exact recent precedent, over the years there were general principles that could be applied.  A prime case here would be the well being of those in state run institutions, which includes certain due process protections for safe conduct.  Various cases, imperfectly applied in recent days, also protect voting rights and guide how the laws should be applied in this case.  Broad executive power should be carefully analyzed, but emergency situations repeatedly have been shown to justify it, especially if the legislature provides guidelines.  Religion is of special concern but general rules still apply.  Emergencies do not provide "anything goes," but that hasn't been the case now, even in places like New York City.

A value of our system of law is the ability to reason and apply, a form of common law within constitutional and statutory guidelines.  A final word can be said about an interesting precedent, noting that new times bring new practices, so I'm not saying it just means we can apply what they did. But, it still is helpful and informative. I speak of the 1793 yellow fever epidemic, yellow fever being what led to a few cases of the Supreme Court (and lower court judges in some cases) closing shop temporarily. Over the years, plague, yellow fever and related instances led to broad social and legal implications that do provide some help to our current affair.

Various things stand out in the discussion, putting aside disputes (at times having a partisan tinge) over proper medical techniques. The government had the power to close ports, block scheduled coach schedules, require private religious burials (and hold church bells) and had special cleaning regimes put in place.  Quarantines were enforced including limiting the movement of refugees.  And, in general, limits on normal business were allowed.  This is a time with less population and government in general. Overall, though it's a fool's game to rely on this in many cases, a conservative legal mind could find the current methods "originalist."

A basic thing in my own comments in the opening link is care. It is unclear what will happen and given the scope of the harm to life and well being, we should be careful.  This can be difficult -- it seems that the New York City schools should have been closed sooner, but that had a range of difficulties that led me to be wary about it early March.  And, there is a national need here, as noted by one who cited how the mismanaged travel ban probably worsened the situation.  It's May, so it's unclear to me what exactly should be done regarding colleges in September. The article is helpful as we figure how to handle this, any solution a balance of costs/benefits.

This is will also apply to sports -- Gov. Cuomo has reportedly welcomed the opening of training facilities and efforts are being made to do so also in Florida regarding the Mets.  This sign of  restarting of Spring Training suggests that it is more likely than before that there will be a baseball season of some sort perhaps starting in July.  More so a football season. I'm wary about the scope necessary to do this, including the more close nature of football (with more people close together on the field).

But, we shall see.

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* I think this should be separated as a bit of a footnote. 

The Trump supporter I clashed with tends to latch on to certain things, one thing there being nursing homes.  It is hard to keep up with all these details, so it is best to try to keep on track with general principles. Generally, it is logical that many would die at nursing homes given that older people are especially at risk here and they would be a logical place where at risk people would be or would be place.  There still are about 70K who did not die there.

The implication was that somehow people were wrongly sent to nursing homes and this negligently infected people there. But, nursing homes would seem like a logical place to send people to be cared for though ideally we would have independent areas, perhaps, set up as have been to isolate people without the means to do so on their own .  The person in question argued in a previous comment that ventilators should be distributed based on means to pay, so he might not be a good advocate here. It seems on a basic level, see the numbers, more dust.

And, we have this:

The Centers for Medicare and Medicaid Services issued a memorandum on March 13 stating, in part, "Nursing homes should admit any individuals that they would normally admit to their facility, including individuals from hospitals where a case of COVID-19 was/is present."

I didn't look that up at time but thus what is the argument? Many people died at nursing homes?  What does this tell us?  The concern here was to avoid overwhelming hospitals with those who were not in immediate need of medical care.  Perhaps, this is also a sign of where truth arises from collision of error to the extent I looked it up after reading his bs.