SCOTUS Watch: Order List

The Supreme Court, as expected, got around to labeling Thursday and Friday as opinion days. There might be over twenty opinions left. I think there will be three opinion days next week. 

The Order List was six pages and bland. Jackson said why she recused, Barrett did not. The case Jackson recused in (previous service) was an Indian Gaming Regulatory Act dispute. Kavanaugh for some unstated reason noted he would have taken the case for review.

The Supreme Court also took four cases for review, their schedule for next term is still somewhat thin. Matching the cases with SCOTUSBlog summaries, the controversies involve a Fair Labor Standards Act exemption, mail or wire fraud, the Private Securities Litigation Reform Act, and False Claims. Nothing hot button.

The bump stock opinion had a typo. It was corrected. 

One Way Back by Christine Blasey Ford

I enjoyed books about the Warren, Burger, and Rehnquist Courts. I have had less luck with books about the Roberts Court. 

Perhaps, it is somewhat related to the fact that I read more contemporary material online about the Supreme Court. For instance, Linda Greenhouse's book about the year surrounding Barrett's entry is basically fine. I did not find much new. 

Some accounts say a book added useful background to the Affordable Care Act Cases. I found the discussion somewhat underwhelming. 

Ruth Marcus’s 2019 book, Supreme Ambition, about Brett Kavanaugh’s rise to power and the events that took place after Dr. Christine Blasey Ford accused him of sexual assault was another matter. I decided that reading that book would have too many disgusted moments. I would be screaming into the void too many times. I have enough stress as is. 

I will let Prof. Sherry Colb -- RIP -- do her usual excellent best to handle that book. She had two basic levels -- professorial and angry -- the latter upped a notch when she knew she had little time left. Her anger and disgust that her two daughters had to live with "Commander Sam Alito, At Your Cervix" would have led to some disgust, regardless.

As the National Women's Law Center noted:

The recent revelations that the FBI performed the most superficial of investigations into the claims against Kavanaugh is part of a pattern of failing survivors, from Anita Hill, to Dr. Blasey Ford, to Debbie Ramirez, to Simone Biles, and more than a hundred athletes. Three years after Kavanaugh’s confirmation to the Supreme Court, we have a new administration and an opportunity to chart a new course. Our leaders cannot continue to be complicit in enabling abusers. The Biden administration and Congress must show that they are invested in real investigations, not hollow, three-day reviews. They must show they value truth and the pursuit of justice, and institutions like the FBI and the Department of Justice must prove to the people of this country that they are here to serve the people, and not just the powerful, from those in our highest courts to those in our college campuses.

On this blog, I opposed Brett Kavanaugh's nomination to the Court of Appeals. He was the primary author of the infamous Starr Report. I felt Kavanaugh was a needlessly partisan selection. The Democrats blocked his appointment until the bipartisan "Gang of 14" reached an agreement. 

Others, including the co-hosts of Strict Scrutiny Podcast, are not impressed with his career overall. They felt he was a sort of "bro" hanger-on type.  He does come off as a bit of an asshole. Gorsuch has different asshole vibes, more of a patronizing ass type. Kavanaugh seems more needy. 

My opinion did not improve when he was nominated to the Supreme Court. For instance, he helped to delay the abortion of a teenage non-citizen. Of the not great options, I thought Amy Coney Barrett would least worse. She seemed to provide a somewhat different perspective. I think her time on the Court overall reaffirmed my limited support at the time.

We then found out that Dr. Christine Blasey Ford notified two members of Congress that he sexually abused her in high school. While drunk, he helped hold her down and tried to remove her clothes. She was able to escape but his laughter stuck in her brain forever. Kavanaugh handled this badly.*

Retired Justice John Paul Stevens originally supported his nomination. He changed his mind after Kavanaugh's ranting in response to the allegations. Kavanaugh's antics were hilariously portrayed on Saturday Night Live.  

Obviously, it is not a funny matter overall. Just how much so is shown in Ford's autobiographical account, One Way Back. She suffered years of harassment, death threats, and more for coming out. Someone without her professional reputation, financial means, and support would not be likely to handle it.

For instance, she hired expensive security guards, took a leave of absence, and spent months away from home in hotels and other temporary housing. Lots of people would not be able to do this, even with help from GoFundMe.

Manchin (who did not vote for Barrett) voted for Kavanaugh. Collins did so as well, after a vitriolic speech attacking her critics. Murkowski was the one Republican who did not vote for him. Her act of courage was a vote "present." 

Chuck Grassley, now 90 years old, later released a smear job. The FBI did a sham investigation, not even questioning Ford herself. I was angry for her reading the book (which she wrote herself; no co-author cited). Imagine how people who were victims of sexual abuse felt.  

The book has three photos. The first photo is of her leaping into an ocean. She is a big surfer. The second is her in a Metallica shirt surrounded by letters. She dedicates the book to people who send her letters. She says the book is in effect her answer to them. The third is the back profile picture.

Her husband's family was publicly vocal in their support. For instance, the actress Bridgit Mendler (Good Luck Charlie) is her niece on her husband's side. She tweeted support to "Aunt Chrissy." Her family was not. She notes she barely talks to her brothers, even at family events. 

Ford does not want to be harsh (she notes not being difficult is her thing) but hard to think there were not some bad feelings about how that went down. Her mother was frail after an illness but her personal opinions are mostly left out. 

Her father did not want her to come out. He desired to stay out of it. She notes her father's brief rather impersonal statement to the press:

I think all of the Blasey family would support her. I think her record stands for itself. Her schooling, her jobs, and so on.

He might be socially liberal, by her lights, but Ralph Blasey was still conservative. Likewise, she notes her father wrote to Kavanaugh's father (they belonged to the same country club):

I'm glad Brett got confirmed, so we can all put this behind us now.

Well, the fathers might be able to do that, but Dr. Ford continued to get death threats and so on. She cried when she found out (after he hairsplit about not sending a "letter" but then admitted he sent an email).  

It's simply hard to imagine the level of anger held against her for daring to release information that in the end did not change much for Kavanaugh. The level of ugliness on that side is appalling. The Republicans released a 400-page report that dwelled on such things as doubting she truly feared flying and enclosed spaces. No quarter.**

Some liberals continue to want to play nice. Do not do too much, including talk about expanding the Supreme Court, since it will lead to partisan revenge. What is wrong with you? Were they somehow gentle in the past? 

It is a well-written and down-to-earth book. We learn about her complete life, not just two moments. It is at times not easy to read. If I wanted to carp, she probably could have edited a few pages near the end. But, sure, do not ask me to write a book that is around three hundred pages!  

Some people who are survivors might have some trauma reading it. A few who have been harmed will be upset that they do not receive the support she did. "Ophrah Winfrey didn't call me! Where is my invite to her home?!"

She -- to use surfer imagery -- did "paddle out and took her chances." She felt it was her duty as a citizen. She dealt with a lot of shit and many have a lot to apologize for. 

It is somewhat amazing how much she felt a need to apologize and grant her imperfections. A reader might want to say to her that she is a wonderful accomplished human being who dealt with life's prevails a lot better than many others have. 

And, yes, we are still waiting for that time when "justice will prevail." Meanwhile, Kavanaugh is a justice of the Supreme Court. I doubt that will ever not rankle.  

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* Dr. Ford offered the hypo of Kavanaugh not being a total asshole. He could have said that he did not remember doing it or even apologized for his youthful actions. 

She thinks he does remember doing it. But, if he had gone that route, she might have done some serious thinking. She noted two of her friends offered the possibility that some people do change. BK apparently did not. 

(Prof. Colb notes the book cited above has two other convincing accounts of him doing sexual predator-type things. The two accounts involve him drunkenly exposing his penis and having a woman -- at least once not consensually -- touch it. This time he was at Yale. Okay.) 

I also think the most egregious part of his actions was his response as an adult, a sitting Court of Appeals judge. There were numerous other choices. You did not have to go with a sexual predator. That has an "own the libs" feel to it.

His ranting and raving during the nomination process clinched the deal. 

** The fact only one Republican failed to vote to confirm (there were a couple votes margin; Jeff Flake or someone else could have at least gone Murkowski's route) just underlines the type of party they have become.

The idea that Dr. Ford -- in the heat of the #MeToo Era -- along with the Democrats were cynical partisans is bullshit. 

Sen. Feinstein mishandled the whole thing. She was already running for re-election (she should have stepped down) while she was in her mid-80s. Ford notified her congresswoman and senior senator early in the process. Feinstein for whatever reason wanted to bury it but it came out anyhow. 

Once it did, what exactly did the Republicans expect them to do, especially at that time? And, it is hard to expect such an allegation to stay hidden. Ignore a credible allegation from an esteemed professor and biostatistician? 

SCOTUS Watch: Ethics and Opinions (Part II)

Ethics

Senate Judiciary Committee Chairman Dick Durbin and others appeal to Chief Justice Roberts to address ethics. Why? There is a likely feeling that he is the CHIEF JUSTICE, having special responsibility. 

But, he is actually merely a "first among equals" with no special powers. The more specific reason, which is not clarified enough, is that he is the head of the Judicial Conference of the United States. As its website notes:

It convenes twice a year to consider administrative and policy issues affecting the federal court system, and to make recommendations to Congress concerning legislation involving the Judicial Branch.

Senator Whitehouse explains how the Congress established this "policymaking body." Congress is empowered to do so, especially under the Necessary and Proper Clause. The Judicial Conference handles ethics. 

Roberts has a special responsibility as the leader of the conference. He also has a duty as Chief Justice. Chief Justice Warren took that duty more seriously, pressuring Justice Fortas to retire for much less than what Thomas did. 

I partially disagree with this take that overcorrects the valid concern that people are focusing too much on ethics alone. 

Ethical abuses, including the Chief Justice ignoring them, is a useful way to show the Supreme Court is abusing its power. Once you cite someone as an abuser, not worthy of trust, there is an easier path to general limits on their behavior. 

The analysis at one point even suggests Justice Thomas did not do something worthy of impeachment. His activities suggest "bribery" (trying to cover things up is a red flag), which is a specific ground for impeachment. 

Yes, and many critics say so, the Supreme Court has crossed the line beyond ethics. The slow-walking of the Trump immunity case as well as how they overturned abortion rights is an overall misuse of power. 

It is a factor in why I support court expansion. It is not merely a partisan "get you back." There are a variety of possible court reforms to recalibrate how the Supreme Court does its job. Change often comes when the current personnel can not be trusted to do the job properly. 

Reforms can also address the lower courts, including handling universal injunctions, which give much power to affect national policy to possibly a single district court judge. The Senate is also considering a bill to expand the number of lower court judges. 

Republicans realize that the criticism of ethics is not a stand-alone. If it was, they would be more likely not to be so against ethics reform. Nonetheless, it is useful to highlight soft spots. 

Bankruptcy 

The Supreme Court recently determined a bankruptcy rule violated the constitutional uniformity requirement. The question then becomes what relief, weighing everything involved, is required. 

United States Trustee v. John Q. Hammons Fall 2006, LLC in a 6-3 opinion written by Justice Jackson determined a refund was unnecessary. She appeals, using her favorite theme, to congressional intent, to show why this is so. It also does not violate due process of law. 

Gorsuch dissented with Thomas and Barrett. 

"Aliens" vs. "Non-Citizens"

Justice Jackson appeals to the "plain text and context of the statute" to decide the proper procedures for the removal of noncitizens from the United States. Justice Gorsuch joined her along with the other liberals. This time it was a dissent.

Justice Alito wrote the majority opinion. The more conservative approach is unsurprising as is Gorsuch dissenting. Gorsuch is regularly libertarian when it comes to federal power. I will allow others to debate the law here.

What stands out for me is that Alito continues to use "aliens" instead of "noncitizens." The liberals do not do so. The new conservatives do not. I will have to check to see if Thomas does so. Nonetheless, I do know Alito insists on using "alien." Using a term his wife might understand, it's a red flag. 

The term is criticized as dehumanizing and not suitable for our ideal national character. The Biden Administration announced in 2021 that they were not using the term "alien." 

Bump Stocks 

The Trump Administration banned bump stocks after a shooting spree in Las Vegas murdered fifty-eight people and wounded 500 more. To quote Justice Sotomayor:

He did so by affixing bump stocks to commonly available, semiautomatic rifles. These simple devices harness a rifle’s recoil energy to slide the rifle back and forth and repeatedly “bump” the shooter’s stationary trigger finger, creating rapid fire. All the shooter had to do was pull the trigger and press the gun forward. The bump stock did the rest.

The regulation was challenged on statutory grounds. Justice Thomas for the conservatives [Alito providing a short concurrence saying the "horrible shooting spree" doesn't change the law] agreed that the policy went beyond the statute. 

Sotomayor dissented from the bench. The Supreme Court wrongly does not provide audio, so we have to wait months until Oyez.com releases the opinion announcements to listen.  She argues the case is easy; the majority makes it hard:

The majority looks to the internal mechanism that initiates fire, rather than the human act of the shooter’s initial pull, to hold that a “single function of the trigger” means a reset of the trigger mechanism. Its interpretation requires six diagrams and an animation to decipher the meaning of the statutory text. 

The case does not turn on the Second Amendment. Justice Alito grants in his concurrence that Congress can pass a law banning bump stocks. They should do so. 

My understanding was that there was a good chance that the regulation would be upheld. OTOH, the oral argument was concerning. Multiple justices were doubtful. 

A liberal SCOTUS analysis argues the right answer in this case is debatable. Sotomayor argued that a rule against ineffectiveness favors her approach. Both sides think they support the "obvious" interpretation. 

Realistically, especially when the lower courts divide, these cases are not obvious. When Sen. Feinstein said legislation was needed, cited by the majority opinion, this is partially what she was talking about. And, if there is room for discretion, who has the final say? A conservative Supreme Court. 

There is a hazy test: just reasonable is a regulation? At some point, passing a new law (which is hard) is necessary to clarify matters. The same concept (change being much harder) applies when passing new constitutional amendments. 

The federal government did not prosecute the person. A "rule of leniency" is less clearly necessary here. The reasonable division between the lower courts and justices here also counsels that this is not obvious stuff. 

I am inclined, unless there is a crystal clear case, to agency deference. The rule can be changed. Congress can pass a law to change it too. The ideological split of the opinion is also suspicious. Bottom line, it is now left to Congress.

We have another message bill for the U.S. Senate Democrats.

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There will be an Order List on Monday and opinions next Thursday. We are likely to also have a second opinion day next week. Wednesday is a holiday (Juneteenth). 

And, yes, we should not cheer the abortion ruling handed down yesterday too strenuously. I said so and will say so again. See also.  I do think that red states have enough anti-abortion laws to remind people (maybe, I should say "women") that they are not safe. 

SCOTUS Watch: Ethics and Opinions (Part I)

Alito and Ethics Reform

The Supreme Court Historical Society has already received some controversy. It provides ideological groups to obtain access. It appeals to groups who bring cases to the Supreme Court for funding. Nonetheless, still seemed a low-key place.

Progressive activist, Lauren Windsor, paid the fee and did her secret taping / I'm one of you routines to get audio from conservatives. Get the smelling salts. 

Roberts sounded reasonable, Alito said some iffy things, and his wife sounded unhinged. See here. 

People want Sotomayor and Kagan to retire.  It's rather late in an election year even if we want them to do so. If we want messaging appeals, let's ask Roberts to retire for the good of the Court. He won't. Neither will they.  

Maybe, I would be more stressed out if Roberts et. al. were willing to talk with Congress.  House Democrats had their own unofficial hearing. The Senate Democrats put a binding ethics bill to a vote, which required unanimous consent. Of course, Republicans blocked it. Sen. Durbin continued to sound so concerned. Where are the damn hearings? 

Meanwhile ... a good article on the Supreme Court advancing transparency by permanently flagging edits to opinions. 

Abortion Pills

Under Article III of the Constitution, a plaintiff's desire to make a drug less available for others does not establish standing to sue. Nor do the plaintiffs' other standing theories suffice.

The Supreme Court (as expected) via Kavanaugh disposed of the mifepristone challenge on standing grounds. The case was extremely weak. So weak that the Fifth Circuit (reversed again) toned down the extreme district court opinion. 

Abortion pills are in danger in the states. The challenge here is trying to block them across the board. Or, at least, to make their use harder. Anti-abortion health personnel argued that the possibility of harm from the drugs (which rarely cause problems) would give them standing since they might be forced to provide medical treatment (which is doubtful too). And other weak tea.

The argument was so bad that (this is somewhat surprising) Alito and Thomas did not address the merits. Thomas used his separate concurrence to attack standing rules generally. The result is a game of "keep away" that Republicans should appreciate, for the cynics around here. 

A possible problem here is that the opinion assumes a strong conscience protection, which can allow doctors to refuse to provide care even if the result is a threat to a person's health. A lesson that even "easy" and "okay" opinions, especially with this Supreme Court, can be problematic. 

Also, when you dispose of a case on standing grounds, it might come up another way with different plaintiffs. So, the whole thing is really a big "to be continued." 

Labor Dispute 

Justice Thomas had two cases. Eight justices went along with one with Justice Jackson having a strong partial dissent:

The National Labor Relations Board can bring in-house enforcement proceedings against employers and labor unions for engaging in unfair labor practices. Section 10(j) of the National Labor Relations Act authorizes the Board to seek a preliminary injunction from a federal district court while these administrative enforcement proceedings take place. The question in this case is whether the traditional four-factor test for a preliminary injunction articulated in Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7 (2008), governs the Board’s requests under §10(j). We conclude that it does, and therefore vacate and remand. 

Thomas handles this in ten pages. Jackson disagrees with the reasoning in part. However, her opinion is sixteen pages more because she is concerned with a wider principle:

I am loath to bless this aggrandizement of judicial power where Congress has so plainly limited the discretion of the courts, and where it so clearly intends for the expert agency it has created to make the primary determinations about both merits and process. 

Jackson continues to speak her mind. She has promoted the importance of congressional intent and judicial restraint. 

"Trump Too Small" Trademark

Someone wanted to trademark the slogan "Trump Too Small," which arose from a Marco Rubio/Trump 2016 campaign bit. Trademark law blocked such usage of the name of a living person without their consent. UPHELD.

The policy was not viewpoint-based, which is a basic "no no" in First Amendment jurisprudence. It is content-based, which can be. Thomas for a unanimous court agreed the policy was constitutional. The justices split multiple ways on why.

The main problem is that Thomas (with Alito and Gorsuch going along the whole way) relied on "history and tradition." Kavanaugh (with Roberts) did not want to only rely on that. 

Barrett was wary of the whole enterprise, not being impressed by the way Thomas collected the historical evidence. Sotomayor (for the liberals) -- taking a potshot at Thomas' Second Amendment case -- rejected the enterprise:

Yet this back-and-forth highlights the indeterminacy of the Court’s history-and-tradition inquiry, which one might aptly describe as the equivalent of entering a crowded cocktail party and looking over everyone’s heads to find your friends. 

It bothers me when a majority opinion needlessly causes confusion. Thomas could have obtained a majority of five by toning down his history and tradition bit (Kavanaugh and Roberts didn't join a section mostly involved in sniping at the other opinions). These plurality opinions are ideological bait.

The bottom line here is that the opinions provided a chance for the justices to debate the "history and tradition" test that has been used in multiple opinions. 

Thomas and Gorsuch care about that. Alito will selectively use it and do so passionately when it suits. Roberts and Kavanaugh will pragmatically go along. Barrett is wary and willing to say so (Prof. Barrett). The liberals do not like it. 

==

So, low-temperature day, but let's not be too "happy-clappy" about the first case. The last case suggests dangers ahead. The middle one shows Jackson's plans to make herself heard, even if she is going alone. You go girl. More to come. 

The Velveteen Rabbit

I do not think I ever read The Velveteen Rabbit. My general understanding was it is about a toy that a boy loved, even as it got all worn down.

Chandler bought a special edition for Kathy, who he fell in love with even though she was Joey's girlfriend. Being a Friends watcher, I checked it out of the library.

It's a touching book from the 1920s. There is a rule where a child's love makes you "real" ("I really like you!"). When the rabbit was going to disposed -- the boy got scarlet fever and it was seen as contaminated -- a fairy magically made him a real rabbit.

Missouri Executes David Hosier

Missouri does not plan to let a recent serious health event stop plans to execute sixty-nine-year-old David Hosier.

Hosier had an affair with a married woman. She then went back to her husband. The pair were murdered with a submachine gun. 

Court documents say Oklahoma authorities allegedly found 15 firearms in Hosier’s vehicle after his capture, along with a bulletproof vest and a crowbar. She received a protective order and received threatening messages from him. He claims innocence but it looks rather bad.

The murders took place in 2009. A fifteen-year lag time (COVID likely helping delay things) might be notable in other countries. It is relatively normal in this one. I would still cite Breyer's Glossip v. Gross dissent on the constitutional concerns of a long delay. 

A past execution also involved the set fee procedure in Missouri, which could inhibit a good defense. I do not know if this influenced matters here. The usual kitchen sink procedural claims were rejected in the lower courts. 

My biggest concern is prosecutorial discretion. The firepower does concern me. It suggests a higher degree of dangerousness. 

On the other hand, the accounts do not suggest he had a criminal history. His policeman father was murdered in the line of duty when Hosier was a teenager. He later served in the Navy. It is unclear what drove him personally to decide a woman going back to her husband warranted this.

The whole thing appears to be a personal crime that is akin to many other non-capital defendants. The crime warrants a long prison sentence. 

No final SCOTUS appeals. He opposed a failed clemency appeal focusing on his father dying. He stayed with the "I'm innocent" line. Innocence is a favored movie plotline. A few times there are grounds to be concerned. I don't think there is many grounds to think this is one of them. 

The Rev. Jeff Hood, Hosier's spiritual adviser, said he is "accepting his fate, and his faith. I think he feels like he's stood up for himself and gained a lot of dignity in the process."

Missouri executed him. 

SCOTUS: Order List

Today's Order List, a list of Supreme Court orders, is low temperature. As usual, it does provide a few interesting tidbits.

The Supreme Court is slow walking both handing down opinions and granting new cases for the next term. The Order List added two low-temperature cases. These cases still matter, obviously, but still notable.

Issue: Whether the phrase “entitled ... to benefits,” used twice in the same sentence of the Medicare Act, means the same thing for Medicare part A and Supplemental Social Security benefits, such that it includes all who meet basic program eligibility criteria, whether or not benefits are actually received.

They even limited the question examined one case:

Whether risk disclosures are false or misleading when they do not disclose that a risk has materialized in the past, even if that past event presents no known risk of ongoing or future business harm.

Conservatives continue not to explain why they recuse from cases: Alito, Barrett (2), Gorsuch (3), Chief Justice. The liberals have consistently explained (once in the same case where a conservative did not) why they recuse, citing the new code of conduct. Both sides don't do it. 

Meanwhile, the Order List includes the usual odds and ends, including summary dispositions that clean away cases like those already decided, solicitor general briefing, and a refusal (as usual unexplained) to allow a petition in forma pauperis (in the manner of a pauper, a waiving of costs).

An Order List FAQ would be useful. Meanwhile, another Opinion Day for SCOTUS. There will be opinions on Thursday and Friday. 

Privacy and Due Process: Some Old Cases

A blog noted the anniversary of Gitlow v. N.Y., which upheld a prosecution for advocating anarchy with Holmes (and Brandeis) dissenting. 

The 1925 opinion is remembered for granting certain First Amendment rights are applied to the states:

For present purposes we may and do assume that freedom of speech and of the press — which are protected by the First Amendment from abridgment by Congress — are among the fundamental personal rights and “liberties” protected by the due process clause of the Fourteenth Amendment from impairment by the States.

In hindsight, this was the beginning of the modern incorporation doctrine, which is now nearly complete (the Third Amendment was cited in dicta; the grand jury and Seventh Amendment provisions have not been incorporated). The First Amendment (including later religious liberty) led the way. 

A minority opinion arose after the ratification of the Fourteenth Amendment that total incorporation of the Bill of Rights was appropriate. Justice John Harlan was the leading advocate on the Supreme Court.

He wrote the opinion of the Court in Chicago, Burlington & Quincy Railroad Co. v. City of Chicago (1897). The opinion held that just compensation when the government took property for public use was necessary for due process of law. Due process was not merely a right to fair procedure:

In determining what is due process of law regard must be had to substance, not to form. This court, referring to the Fourteenth Amendment, has said: "Can a State make anything due process of law which, by its own legislation, it chooses to declare such? To affirm this is to hold that the prohibition to the States is of no avail, or has no application where the invasion of private rights is effected under the forms of state legislation."

Just compensation was necessary to protect property rights. Property rights were necessary to secure a republican form of government:

Due protection of the rights of property has been regarded as a vital principle of republican institutions. 

The Supreme Court has held the Guarantee Clause is not justiciable. Nonetheless, republican values could be secured by enforcing other provisions. The opinion cited previous declaration of open-ended principle:

[T]here were private rights in every free government beyond the control of the State, and that a government, by whatever name it was called, under which the property of citizens was at the absolute disposition and unlimited control of any depository of power, was, after all, but a despotism, said: "The theory of our governments, state and national, is opposed to the deposit of unlimited power anywhere. The executive, the legislative, and the judicial branches of these governments are all of limited and defined powers. There are limitations on such power, which grow out of the essential nature of all free governments, implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name"

Such open-ended boilerplate with reference to "private rights" might have some implication to privacy rights. The traditional security of private property gave people control and privacy on their own propety. 

The Supreme Court regularly, however, rejected attempts to incorporate other rights. Twining v. N.J. (self-incrimination) was a 1908 case leaving open the possibility that other rights enumerated in the Bill of Rights fell under "due process of law." Not because of incorporation:

If this is so, it is not because those rights are enumerated in the first eight Amendment, but because they are of such a nature that they are included in the conception of due process of law. 

Due process of law developed over time:

This court has always declined to give a comprehensive definition of it, and has preferred that its full meaning should be gradually ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they arise. 

Traditional rights provide clear evidence of what is required. Nonetheless, the past is not a straightjacket. Doing otherwise "would be to deny every quality of the law but its age, and to render it incapable of progress or improvement." A "living constitutonalism" approach is not something invented by modern liberals. The case cites a 1880s precedent.

Twining refers back to a 1819 case:

The words 'due process of law' 'were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice.' Bank of Columbia v. Okely.

The word "arbitrary" is an open-ended principle that can include volumes. What are "private rights"? The term "distributive justice" also is curious. The term appears to reference an evenhand supply of goods and services. Nonetheless, the term is somewhat vague and open-ended.

Twining referenced the dissenting views about incorporation, noting they were respectable. After all, Harlan was respectable, and he was still around. Nonetheless, the precedent against it was thirty-five years and consistent. The one case about just compensation somewhat an exception.

Incorporation later became offical policy. After the First Amendment, most of the criminal justice amendments were incorporated by the end of the 1960s. The Second Amendment came years later. The Supreme Court around five years ago made clear the Fine Clause is covered too. 

Meanwhile, the true meaning of due process of law is open-ended and still developing. The Dobbs decision disrespected "private rights." Arbitrary exercise of government power continues.

Congestion Pricing

No, congestion pricing does not have to do with antihistamines.

New York’s most prominent business leaders, longtime supporters of the congestion pricing proposal to raise money for the MTA and to reduce traffic, are angry at Gov. Kathy Hochul’s decision to postpone implementation of fees for vehicles entering Manhattan south of 60th Street.

I probably should have been paying more attention to this. Congestion pricing has been an issue for years. It has the potential to be a major influence on transportation with significant environmental benefits. 

Gov. Hochul until recently supported congestion pricing, which was due to start at the end of the month. She suddenly (via a recorded announcement!) changed her mind. The Metropolitan Transit Authority in theory could override her. Doesn't seem at the moment they will. 

Drivers entering Manhattan’s commercial business district south of 60th St. would need to pay a $15 toll. Without that money, the MTA can have a billion-dollar deficit. Gov. Hochul has no clear explanation of where this money will come from. She denies it was a political decision.

Democrats in the state and federal legislatures are divided. My state senator strongly supports congestion pricing. The House Minority Leader supports a pause. His political decision-making has been at times questionable, including supporting a moderate/conservative-leaning Court of Appeals nominee that received strong opposition. I'm wary of the guy.

Gov. Hochul has been strongly criticized for how she has been handling this. It is shocking (not really) that an upstater / Cuomo's lieutenant governor has been a dubious character on various issues. I worry if she continues to look so weak, the Republicans will manage to find one of those blue-state "reasonable types" that win governors' races. 

The whole story has a big "to be continued" feel. One major reaction is that this underlines the questionable nature of how New York runs things. Why should the governor have this much power to bring to a halt congestion pricing? It should be up to the legislature to handle funding matters.

Maybe, we want the MTA to be one of those independent authorities. But, if the governor's tail is wagging the MTA's dog, how useful is it? 

The final concern is political. A major factor is that suburban swing districts tend to find this an unpleasant policy. I put aside how fair that would be as a matter of good policy. 

Nonetheless, the general argument seems to be that her move here won't help much even there. 

===

Meanwhile, the Mets are playing two games in London. 

The first game was earlier today (a bad inning led to a loss). The second airs at 10AM EST. Both games are not on SNY though home fans could listen to familiar voices who are actually Mets-friendly on the radio.  

I think these international games are fun and good for baseball. My preference would be to have a bunch of Latin American games too. I remember back in the day when the Bobby Valentine Mets went to Japan. Real "Bad News Bears" energy there!

Well, that's something: Former Met Daniel Murphy defeated Phillies Icon Chase Utley in a Home Run Derby in Trafalgar Square, London on Friday night. 

Hunter Biden Trial

As we await sentencing in the New York Trump election interference trial, Hunter Biden's trial is taking place. 

Slate provides an excellent summary of how different the two trials are. The defense portrays Hunter Biden as a reformed addict who sympathetically got his life back together. His family, including his mother and sister, are supportive. The defense carefully makes a limited argument and handles prosecution witnesses gingerly.  And so on.

We have a more slipshod analysis, including the obligatory Merrick Garland* and Democrat-bashing (it really amounts to a criticism of President Biden, which is just asinine) from the weakest link at another blog. 

I again wonder how Garland was going to get rid of the obviously biased special prosecutor here without looking like a hack in hock to his boss. Democrats have defended Hunter Biden and criticized Republicans who tried to weaponize his case. House Democrats did so when House Republicans had one of their show hearings. 

Yes, laying on the defense too thick probably would be bad politics. But, they are not just letting him swing in the wind. Furthermore, how much more would it help Hunter Biden if they were more vocal? His best bet is either a sympathetic jury or the appeals court overturning a weak case.

[The Slate article notes that a key piece of evidence involves him not disclosing that he is an "addict" on his gun registration form. Aside from the possible Second Amendment concerns here, the "knowingly" intent required is somewhat hard to prove.]  

A typical person would not be prosecuted for the tax and gun crimes involved here. Biden tried to plea out but the whole thing was screwed up by the special prosecutor. The prosecutor appears to have a vendetta against Hunter Biden. The N.Y. case was a more carefully handled affair. 

We do not have the election-related concerns found in the Trump case or the fact that multiple other people involved were prosecuted or obtained non-prosecution agreements. The defendant has not been a criminal all his adult life with multiple serious cases pending. 

The limited overlapping -- including little prosecuted felony charges in the N.Y. case -- details do not make the two cases the same. I hope he either is not found guilty or the appeals court correctly finds multiple things wrong with the conviction. 

Anyway, even though they tried so very hard, Biden critics received little benefit from going after Hunter Biden. The "Biden Crime Family," unlike the actual nefarious acts of Trump and his associates (including members of his family), is just a fantasy. 

Let this peter out as it should. 

ETA: "A federal jury found Hunter Biden guilty on all three federal felony gun charges he faced, concluding that he violated laws meant to prevent drug addicts from owning firearms." 

This judgment is probably fair. My concern is a biased prosecution, which should not have been brought in the first place. 

There is still a possibility of criminal tax charges, which would normally not be brought as long as the money was repaid. 

==

* Garland did begin investigating the January 6th attacks shortly after he came into office. Multiple things held up the investigation, including the FBI and Republican stonewalling. Trump was indicted twice. 

He didn't immediately appoint a special prosecutor since he was not conflicted. Trump running for office was a new development there. Sen. Elizabeth Warren proposed a special investigatory committee. Biden did not. And so on and so on.

Some readers are opposed to this line of scapegoating. They upvoted me when I called it out or spoke against it themselves. I didn't see any doing so on the thread, perhaps because they know how pointless it is at this point.

SCOTUS Watch: Financial Disclosure

Fix The Court provided an analysis of the gifts received by SCOTUS justices for the last twenty years. Justice Thomas stands out by a ridiculous margin. Alito and Scalia come up a respectable second. Justice Stevens is a distant third. 

Other justices might have things to answer for but Thomas truly is the king of SCOTUS grift. And, who the heck would give Brett Kavanaugh a six-figure book payment? The article also reports that Thomas finally got around to disclosing two instances of Harlan Crow largesse (his Senate subpoena is still pending) while leaving out many more. 

In a sane world, Justice Thomas would have long been investigated by a House impeachment proceeding for financial wrongdoing, including failure to disclose millions of gifts (ProPublica per the article estimates just one trip costing $500K). Not to worry:

At the Judicial Conference meeting in March, the head of the conference said a committee is still examining the allegations from lawmakers.

He is guilty of "bad behavior," which violates the basic requirement of being a federal judge. If the Democrats win the House, they should start an impeachment investigation. Justice Fortas resigned for a lot less.

Justice Jackson getting a few thousand dollars worth of Beyonce tickets and Sotomayor getting lucrative book deals are things to keep your eye on. Financial disclosure does not only include the ridiculous corruption of the likes of Thomas and Alito. So, let's have sunlight across the board.

The same is true with court ethics as a whole. Ethics should not be a partisan issue. McCain-Feingold supported campaign finance legislation as a bipartisan team. Morality and ethics should be a universal good.

The point holds that the blatant guilty parties are found on one side. Noticeably, not everyone on the side is equally corrupt. Nonetheless, ethical reform should be a non-partisan issue. It's not. Wonder why. 

===

In MAYBE an ounce of justice is coming news, a federal judge has ordered Stephen Bannon -- who could have been in prison for multiple crimes at this point -- to report for his few month prison sentence for stonewalling Congress during the 1/6 investigation a few years back.

Meanwhile, Trump's son-in-law continues to act like an anti-American scumbag, using his connections to help enemies of our nation and way of life (see also, his friendship with the Saudi prince behind the murder of an American journalist). 

This is all generally relevant since Thomas and Alito are MAGA supporters. After all, with Trump, Thomas enjoys watching his former clerks become federal judges.

SCOTUS Watch: Still More Low Temp Stuff

The Supreme Court released three opinions on Thursday. None were too exciting. Yes, Supreme Court opinions are not really meant to be "exciting" but it's June. They have in the last few decades had some hot-button cases in June.

An insurer with financial responsibility for a bankruptcy claim is sufficiently concerned with, or affected by, the proceedings to be a “party in interest” that can raise objections to a reorganization plan. Section 1109(b) grants insurers neither a vote nor a veto; it simply provides them a voice in the proceedings. 

Justice Sotomayor wrote a unanimous bankruptcy opinion. Alito was recused. He did not say why. The general reason he recuses is that he has some financial conflict, which is made more likely since his stock portfolio opens up much more of a chance for problems than his colleagues. 

A corporation’s contractual obligation to redeem shares is not necessarily a liability that reduces a corporation’s value for purposes of the federal estate tax. 

Justice Thomas had a unanimous opinion in a case whose main interest appears to be that one of the parties is also named "Thomas." 

The question before us is whether ISDA requires IHS to pay contract support costs to support tribal programs funded by such third-party payments.

The opinions are announced in order of seniority. When Thomas announced, the next one was going to be Thomas, Roberts, or perhaps an unsigned per curiam. So, people watching the opinions show up online [there being no video, though there should be], had some reason to expect a significant opinion to finish things off. 

Not really. The case involves the allotment of federal health funding to tribes with some effect on tribal self-determination. Thus, the case is of some interest to Native Americans. The case was a win for the tribes so it is not surprising that Gorsuch went along. Kavanaugh for the other conservatives dissented. But, it is still not exactly a hot-button case.

There are three more weeks in June. The Supreme Court is going to have to do more than release three or so opinions once a week to complete their work. Next Thursday is now scheduled as an Opinion Day. There will eventually be additional days to handle the twenty-something cases left.

The policy of back-ending so many cases, especially hot-button cases, is misguided. It is a college cram style of doing things.

There is an execution scheduled for next week. An Order List will come on Monday. More flag news? Won't surprise. 

ETA: Native American case, as noted, has some interesting aspects about Native American self-government. It also covers questions of congressional intent, agency discretion, and more. "Low temp" cases can still be notable.

Insular Cases 

I also forgot to include a SCOTUS-related Justice Department statement, responding to a congressional request. 

The Justice Department strongly rejects the racist rhetoric of the Insular Cases, a series of early 20th-century cases treating new territories obtained overseas differently than old (white) territories. 

The opinions assumed the new people were unfit to be treated on equal standing with the rest of the country. The Justice Department does not say they want a full overruling because there can still be some differences between territories and the states/D.C. America Samoa, for instance, does not want to be treated completely like American citizens. 

(Comparably, Native American tribes are not treated the same as everyone else. For instance, tribes can have religious establishments. Also, partially given how small many are, jury requirements are different.)  

The line drawing there is complicated with some apparent injustices as seen in one case involving disability benefits in Puerto Rico. Overall, it is unclear what is realistically left of the Insular Cases, including the idea that the Bill of Rights need not be applied to overseas territories. 

The Insular Cases are a relic. If we do not apply an absolute "Constitution follows the flag" rule, it is time to clearly overrule them and clarify. 

Georgia Trump Case Delayed Until 2025

Judge Aileen Cannon, a Trump-nominated judge confirmed after the people voted in 2020 (mid-November) continues to provide fodder. 

She held the national security trial in indefinite abeyance. However, Cannon still has the chance to put forth asinine orders, such as giving argument time for friends of the court (amici) regarding the constitutionality of Jack Smith's appointment. This sort of thing is simply not done and is just a continual exercise of delay, delay, and more delay. 

Multiple legal minds have been disgusted at her "incompetence" but the evidence at this point makes that generous. There is clear evidence of a pattern that shows bias or (at least) the appearance of bias. The rules in place make it extremely hard to remove her. The truth remains.

Question: Did Willis violate any laws, codes, or policies? If so, let them appeal. If not, there is no justice, and should be no peace.

Answer: I don’t think she did, no.

The Georgia trials (likely all of them though something may take place) will now be held up until 2025. Mid-2025, perhaps.

The appeals court agreed to hear if the trial judge's decision that Fulton DA Fani Willis could remain on the case after a conflict of interest dispute arose should stand. The appeals court has a busy schedule. So, on normal scheduling, this made it basically a goner. 

(ETA: Yes, it was a long shot for the trial to begin in 2024, but there was still a chance. This decision ended any hope. It also helps delay the trials even further. Generally, even if the trials — remember there are many defendants — did not come, the possibility still would keep them fresh in our minds. This pushes the whole thing into the future.)

I say "basically" since it is hard to believe there is no room to speed things up for a time-sensitive case of this importance. The U.S. Supreme Court could have heard the Trump immunity case in December or January. I grant I know little about Georgia appellate law. Nonetheless, it would surprise me if it was absolutely against the law for the court to this court to speed up. 

Prof. Anthony Michael Kreis (the "no" above) is an expert on Georgia law. He has regularly been a legal analyst, discussing state and federal constitutional law. Kreis is a reliable source. He is on Twitter/X and splits his time being a serious scholar and kidding around. I appreciate him except when he goes into "virtuous liberal" mode. 

There are only two people responsible for the Georgia trial not having a chance to go to trial before the November 2024 election. Neither of them wear robes. History will judge them for their poor decisions, especially if Donald Trump wins the presidency. And rightfully so.

He's wrong as are those who "yes" him on the thread. What is particularly bothersome is that he does not even think they should have taken the case! It angers me that he wants to remove the agency of judges here. Or whoever specifically was involved in taking a needless delaying tactic. 

The "poor decisions" in his view do not violate any laws, codes, or policies! Multiple ethics experts agree. Since articles often speak in generalities, here is a helpful timeline of events. 

A significant factor here is how long the judges involved take to deal with the situation. They have agency. People, including prosecutors, make mistakes. The proper thing to do is to balance all factors and not let the mistakes needlessly affect the overall process. People make mistakes and misjudgments. They are human. We have to factor that in. 

Should the two prosecutors have had an affair? No. The importance of the investigation also warrants an extra degree of due care. People rightly note that other prosecutors have affairs, including those in a supervisory position. This does not take them off the hook. My comments here are not meant to be a full apology for their actions. 

The bottom line still holds that this is not merely supposed to be a human resources or internal ethics matter. The dispute involves a conflict of interest that allegedly threatens the due process rights of the defendants. 

The "live in infamy" (reminds me of Pearl Harbor) stuff aside, how exactly is that involved here? The affair seems to have started after he was appointed (he was the third choice after two others turned her down). She did not pick her boyfriend for the role. And, picking people you have some personal relationship with (other than romantic) is regularly done. 

He is not incompetent. He had basic qualifications. There are also references to some spending that might be a misuse of public funds for personal reasons. Trips and the like.  

I don't know what relevance this has to the actual issue here -- the defendants' fair trial rights. It's all soap opera bullshit. The trial judge had a two-week (or so) hearing over this bullshit. It was just too drawn out. 

Yes, I am annoyed at the whole thing. Since she was personally attacked, Willis struck back when she was on the stand.  The trial judge in his ruling strongly criticized some of her remarks. The judge sets her up and denounces her when the expected happens. 

Yes, she should have toned down some of her remarks. A sense of perspective, however, is warranted all around. Again, the two prosecutors are not the only ones at fault. And, bottom line, as Prof. Kreis noted, she did not violate any laws, codes, or policies.

Critics were upset for various reasons. What about Justice Alito and Judge Cannon? That is just whataboutism! Not quite. People have a right to be upset if the rules are applied selectively, especially if it leans one way. 

They (rightly in my view) think this is a tempest in a teapot. The core allegation is in the relevant form (the defendants' rights) a nothingburger. Why should this be dragged out so far? See also, the Supreme Court and the meritless Trump immunity claims. 

Yes, here Fani Willis specifically helped things along. But, her human failings do not take everyone else off the hook. The failure of people to understand this appalls me. Many examples in ordinary life would suggest the problem here. Ditto if we are judging legal liability. 

Consider someone who negligently leaves a loaded gun out. Someone else uses it to kill someone. The first person is not the only person responsible. Shared fault is a basic legal principle, is it not? And, multiple people with expertise argue Willis is not even on the same plane there. She was not legally negligent. She did not break the law or internal codes. 

They think sexism, racism, and partisanship (various Republican state judges) are involved. If this was not a successful delaying tactic, something else would have been. Prof. Kreis resists the idea but the facts are there to be suspicious. Some lashing back goes too far and adds fodder to his belief the critics are unreasonable and uninformed. Not everyone.  

He notes the New York trial was not blocked. Nonetheless, quite a few things (some of which people thought had some merit) were tossed at the wall. There is still plenty of time for something to be latched onto on appeal (see the Harvey Weinstein case). 

"History will judge" everyone here, including the judges and everyone else who has not taken things with a degree of seriousness and timeliness warranted by the situation. Oh well. Obviously, the true person at fault here is Merrick Garland. He is the general scapegoat, including of the Mets season. 

ETA: Kreis wants to be above the fray, an honest broker law professor but he is overcompensating. The emphasis on the two prosecutors having all the agency is a choice. 

He even eventually said that he probably would write an amicus brief in support of her! Not on his own. He only said that in response to criticism alleging he was biased against Fani Willis. I don't know how fair that charge is but at some point, I don't think it is totally unhinged either. 

His opposition to the appeal is only referenced in passing when he specifically was called on it. Isn't it RELEVANT to show how the appeal is a questionable choice?

The net result is counterproductive. It is akin to a liberal newspaper going out of its way not to support a candidate and in the process going too far the other way. I do not want him just to be a cheering session for the prosecution. Nonetheless, there is a middle path possible. 

People are not just treating (as he alleges) Fani Willis as a "celebrity." That is a bullshit charge. 

Kreis went this virtue-signaling route other times. 

Many people were upset at Trump (and others to some extent) repeatedly breaking the gag order. They wanted him to be locked up (it could be home detention). The threats to witnesses and court personnel are real. He argued this was one-note pro-prosecution stuff. 

He once put all the delays on the prosecution as if the defendants had nothing to do with it, including their complex criming by people that require an extra level of due care. Likewise, stonewalling by Sen. Lindsey Graham took months. That's the prosecutors' fault too? 

He was SURE Lindsey Graham did not testify to the grand jury regarding anything warranting punishment. It was unlikely -- given legislative immunity -- he would be. 

But, Kreis had no special inside knowledge of what Graham testified behind closed doors. His level of cocksure assurance here ("I'll eat my hat") was unnecessary. When people pushed back, he could have simply said, "Fine, we will see." 

(The idea Graham's involvement in "investigating" the 2020 elections by checking up on officials in other states was all part of his job voting for the electoral count is dubious. He is  a senator of South Carolina. Why would he call officials in Georgia? 

This would allow every single member of Congress to do this. They would have the clear authority to call officials to "suggest" certain things and "just ask questions" all over the country. They do not do that. It would be problematic if they did.

The selective nature of his actions is suspicious. Again, when pressed, he granted there were some outer limits to Graham's legislative actions. Since the grand jury deliberations were secret, we do not know what was exactly covered. 

A consciousness neutral law professor would qualify his remarks somewhat more.) 

He calls out the Supreme Court and Judge Cannon (though him merely calling her "incompetent" is annoying) for delaying the trials needlessly. But, his blessed Georgia court system is different! They are doing things by the book. I think there is some home court bias there.  

I respect him a lot. But, he deserves criticism too. I'm using him as a case study since I respect him. The stakes have led some people to yell at him, which I think overall makes him think he is doing his job. Sometimes, however, I think there is a kernel of validity mixed in. All the "attaboys" notwithstanding.

Presidential Primary Season Ends (And Other Biden Stuff)

There is an allusion in Around The World In Eighty Days regarding how many elections take place in the U.S. The primary season continues, even after yesterday ended the presidential primary season. The New York local primaries are at the end of the month.

We do not have the final results (especially in South Dakota), but we can have a sense for Montana, South Dakota, New Mexico, and New Jersey. Trump is alone in South Dakota. Biden has about 74% of the vote with the rest divided with some guy named Mando Perez-Serrato (4%) mixed in. 

Christie isn't around anymore in New Jersey. It's Trump (98) and write-in. Biden has 88, 9% uncommitted, and some anti-abortion person named Terrisa Bukovinac with 3%. The only place with actual Republican opposition was New Mexico with Haley getting 9%, Christie (and Uncommitted) 3%, and mini-Trump with 1%.

It's Trump 91% and Uncommitted (with a handful of write-ins) in Montana. Biden got about the same. Meanwhile, so far, Uncommitted (I wonder how that is allotted) has thirty-five delegates, Jason Palmer has three, and Dean Philips (who wants Gov. Hochul to pardon Trump, which should lead to his delegates being taken away) has four. 

Haley has 93, DeSantis 9, and Mini-Trump has three. Haley has had some support since she dropped out but it didn't translate to any delegates given how things were allotted.

The primaries have been somewhat of a joke this year. There was a chance for around 20% (a few times more, depending on the county) to not vote for Trump. I put aside Iowa and New Hampshire here as special cases. Biden's main opposition was uncommitted (an Israel/Gaza referendum basically) though in places like West Virginia, a significant minority didn't vote for him. So, there was that reason to vote. 

Anyway, someone praised the Secretary of Interior, basically because that is one of his interests (along with labor). He tacks on a dig on Garland, who he cites as the worst member of the Cabinet. Do people ever fully judge his work? The main disgust comes from Trump/January 6th. Some people call out the criticism. As Mueller, She Wrote noted recently:

If not for Garland's early privilege battles with Trump and co., Jack Smith wouldn't have been able to indict Trump. Garland also gave the green light to search Mar-a-Lago over objections from Trump holdovers at the FBI. Garland began investigating Trump for 1/6 the week he arrived at DoJ, creating a group called "The Investigations Unit" to carry out the work. He also authorized use of Inspector General Agents and Postal Cops to seize phones from folks like Eastman and Clark when Trump holdovers at the FBI refused to do it. He's far from useless, and I'm not going to stop correcting the record on this.

People used to compare Fani Willis positively but now her love life caused problems (the court of appeals will hear arguments in October; no rush). Garland's integrity, including no leaks, alone is notable. What about how the department handled other civil and criminal matters? I am not even saying it does things well. When does that even come up?

The other thing flagged is how he handles special prosecutors. How was he supposed to handle investigating President Biden and Hunter Biden? Fire Hunter Biden's special prosecutor (who clearly is a hack)? That would go down well. I am not giving the guy a pass. I just think it would have been hard regardless of your fantasy replacement to thread the needle.

An issue that sometimes comes up is Biden's handling of the border. People remind the critics sometimes that the public is conservative on this issue. Republicans blocked a conservative-leaning reform bill to allow Trump to campaign on how bad things are. 

Since only Democrats have agency, this is bad, and President Biden felt a need to announce a new policy. There are various framing like this NYT article that Biden and Trump now have the same policy. It then buries a comment like "president correctly notes that he has ruled out some of his predecessor’s extreme policies." Right. Not the same.

A libertarian spells it out:

Biden’s overall immigration policy is still vastly better than Trump’s, and he deserves credit for a variety of improvements. But he also deserves blame when he adopts cruel Trump-like asylum policies in the hope of scoring political points.

The accurate way to frame that is "Trump-lite" with the knowledge that litigation will temper the problem. The reality of the situation is that President Biden is acting within a political system in an election year. He has to "score political points." He does not have the freedom to just act above the fray. Criticism him. Still, realize the whole situation.

A popular line in 2016 is that the voters had to pick from two unpopular evils. A horrible framing. President Biden is not an "evil." And, the country these days is strongly divided along partisan lines. Biden is likely to always have around forty percent of the people not liking him, a combination of the passionate conservative core and people just upset about things.

My final thought is to wonder just how popular various other people were over the years. Was Bob Dole very popular in 1996? People wanted change in 2008 and 2020 but overall how excited were people over the years? 

Books and Films

It was nice to see "Fake Melania" (Laura Benanti) on Stephen Colbert again. She started doing Melania Trump (noting the two looked alike) as a joke, but in time the "innocent victim" theme started to fall away.

Salman Rushdie was on the show recently promoting his new book (based on events that are also the subject of a pending documentary). I had not read any of his books, but support his right to freely do his art. The book discusses an attack from a few years ago in upstate New York. The book is around two hundred pages and is an approachable and honest accounting. 

I have enjoyed various writings by Kristen Ghodsee, whose expertise is Eastern European communism. I wrote a book summary of Red Valkyries: Feminist Lessons from Five Revolutionary Women. Her new book on utopias is somewhat longer than her usual books and it was harder for me to get into it. Following my "reading is not to be forced" sentiment, I put it aside. 

Galaxy Quest was on television and I finally got around to watching it. I did fast forward a few parts, including part of the serious portion where things are not going well for our heroes. It is an amusing and well-made satire of a Star Trek-like crew of actors who get involved in a real-life space adventure. Multiple Star Trek actors were tickled by the whole thing. 

I also watched Housecalls, which was a pre-Hopscotch pairing of Walter Matthau and Glenda Jackson, down to the Matthau character liking to sing classical music. Art Carney (who seems to be playing someone a bit older than he was at the time; he was around 60) played an old goat. 

[Matthau also was the presenter when Glenda Jackson won an award for her role years earlier in Women in Love.]

I believe I saw the film a long time ago -- one or two scenes seem vaguely familiar. Glenda Jackson is very cute and they make a good pair. Art Carney is also very good. Films often turn on supporting characters. 

The film starts off fun but sort of peters out after they start dating. There are over twenty minutes left and you basically just wait for the expected conclusion. Overall, it was enjoyable.   

The latest Showtime at Night entry is Sex and a Double Date (see here). A bestie has to find a date for a wedding. The bride finds a guy for her (a familiar face in these films) while she herself chooses a woman. 

Hilarity, or at least some softcore sex [these films somewhat annoyingly only show so much, even though it looks like the full scenes are more hardcore] ensues. Apropos of the lesbian content, the first episodes of the "L" Word television show (Happy Pride Month) were also on last night on Showtime. I generally enjoyed that show, liking some characters over others, but did not see all of the episodes. 

The bride sounds familiar and looks like a totally toned/fake looking (nude at least) porn actress. Her fiance looks a bit like a dweeb and plays that sort of character in other films. The bestie/maid of honor is also standard though she has pretty nice breasts. Her girlfriend has nice if smaller breasts and really long hair (if that is your thing).  

The sex scenes are pretty long (something like ten minutes?) though are not that exciting overall, again since we only see parts of them. The rules are: a lot of sexy talk (if hard to understand without subtitles, which often are amusing), shots of breasts, some ass, very little crotch, and no penis at all. 

It's an Adam and Eve film, so overall, it's respectfully done. Decent overall as far as these things go. 

SCOTUS Watch: Order List

The Order List was so vanilla that I did not even have a chance to criticize a conservative for not explaining their recusal. There is one grant:

Issue: Whether a crime that requires proof of bodily injury or death, but can be committed by failing to take action, has as an element the use, attempted use, or threatened use of physical force.

We do have a bit of Alito news. A liberal-leaning professor (who does not cite him by name on her webpage) called him out to recuse in an op-ed. She respected him, well, at least until Dobbs:

As a former law clerk to Justice Samuel A. Alito Jr., I often admired him as a person for his integrity and honesty. As a progressive liberal, however, I vehemently disagreed with the approach he takes to reading the Constitution, the narrow interpretation he adopts, and his reverence for the framers’ restrictive intent.

Federal judges and justices have had many clerks over the years, so it is not surprising that a newspaper found one to write an op-ed. I suppose these days, Alito might check more closely ("Okay, do you watch MSNBC?"). 

I only know about this because Josh Blackman over at Volokh Conspiracy is obsessed with the whole thing ("Say her name!"), having about five posts during the controversy insisting there is nothing to see here. It's all a lefty plot! 

Another liberal-leaning law professor (a former Kennedy clerk) has an analysis of Alito's property law views. It might shock you, but Prof. Dorf thinks he is wrong about something. 

Finally, there was a typo in the NRA opinion, which they corrected. There used to be a new practice where revisions were cited in a separate column. They stopped doing that. 

I'm unsure why they corrected a few cases while others waited until the preliminary bound copy (now done much faster) was released. If you click a bound copy (it has a volume and page number next to it) link, go to the bottom of the file, and it will say if there are any corrections. 

We have more opinions on Thursday. It would not surprise me if something else pops up, including more on Alito. 

Summary of Trump NY Crimes

I found two helpful summaries for those who wish to understand the nature of the law behind Trump's conviction. I retain my belief it was correctly brought, both legally and prudentially.* The crimes also have a sleazy aspect that is also a violation of how elections should be handled. 

The first article answers the basic questions a reader might have. The second provides a more detailed "pro" and "con" argument.  I will combine them in my summary below. 

In New York, it is a misdemeanor to falsify business records with “the intent to defraud.” It is a felony to do so to "commit another crime" or "aid or conceal" another crime when falsifying records.

The core of the scheme was money claimed to be for lawyer's [Michael Cohen] fees was really to pay off Stormy Daniels. Business records falsified for deception reasons are a misdemeanor. 

The "Trump did no wrong" brigade does not want to grant even this. But, it is generally granted he did this. Michael Cohen admitted guilt and other evidence was supplied to prove the case. 

The statute of limitations has run out for them. (I saw a discussion that it might not have but seems it was determined they had.) Felonies have a longer statute of limitations. Also, time spent outside of New York does not count for that. Not that a bunch of misdemeanors are totally trivial. 

The thirty-four counts corresponded to a check, invoice, and voucher generated to reimburse Cohen. Why was it a felony? The crime was done "to promote or prevent the election of any person to a public office by unlawful means.” The second article calls this an "obscure" law. Nonetheless, it appears to be a standard campaign finance concern.

What is the "unlawful" means? The jury did not all have to agree with what specifically was unlawful. They had three options:

What exactly those "unlawful means" were in this case was up to the jury to decide. Prosecutors put forth three areas that they could consider: a violation of federal campaign finance laws, falsification of other business records or a violation of tax laws. 

This would address certain criticisms. For instance, some argue that an "attempt to defraud" has to be for concrete reasons, not something like hush money payments to protect your reputation during a campaign. 

But, New York law is more open-ended. Anyway, the violation of tax laws would alone cover that. It also helps refute the idea Michael Cohen got as much prison time as he did because of tax violations. 

The second article has a good general defense of the prosecution:

The prosecution’s argument rested on untested legal theories, not absurd ones. Contrary to the claims of prominent Republicans, Trump’s conviction does not prove that Democrats will stop at nothing to persecute their political adversaries. Rather, it proves that if a man perpetrates a wide variety of frauds over the course of decades — and routinely advertises his contempt for the rule of law — prosecutors may aggressively scrutinize the legality of his business records and get a bit creative in holding him legally accountable.

I dispute the idea that the only reason why the federal government did not prosecute Trump was that it was a hard case to bring against anyone. Nonetheless, little-used laws are in place for extreme cases. 

Trump qualifies here. The arguments against the prosecution try too hard.** They are more suitably applied to a law that severely hinders free speech. The specter of politically inspired prosecutions can be taken so far that they selectively provide immunity to those who run for office. This result would nullify the basic purpose of campaign finance laws.

I will not presumptively say that Trump will not win his appeals. Courts have bent over backward at times to narrowly interpret the general crimes involved here. But, my opening argument holds. 

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* The fact that the NY criminal trial was the one that went first, taking the sting away from prosecuting a former president (officially), is an unfortunate result of Supreme Court stonewalling. 

Nonetheless, if this is the only trial before the election, it is better than nothing. Either way, it covers its own subject matter, particularly 2016 election interference. 

** For instance, one argument raised is that Michael Cohen's guilt, in the furtherance of his client's (Trump) interests, does not mean Trump himself is guilty. This doesn't pass the laugh test factoring everything in, including Trump's hands-on approach.