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Thursday, February 28, 2019


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

Billie Coble Executed

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

Wednesday, February 27, 2019


A few oral arguments, including a potential big one regarding religious displays regarding a "peace cross" that hopefully will be decided narrowly though not likely to go the humanist's way. Roberts again the swing vote in a limited win (death penalty case) for the liberals. Less close defendant win with Thomas/Gorsuch (but not Alito) adding a bit in the dissent questioning the constitutional right to state provided lawyers on originalist grounds. Win for international organizations with Breyer with a solo dissent that is most interesting regarding his purpose based approach that questions textual analysis of the majority.

A Day in the Life of Majority Rule

The Michael Cohen testimony was not likely to be earth shattering, but hearings need not be to be useful, including to air things out to the general public who are not political nerds and get a sense of each side. Plus, some useful stuff will come out, including bringing things back front and center. It's a race, not a sprint. Plus, AOC et. al. had great moments.

Meanwhile, a background gun check bill that passed the House, basically on a party line vote. Using a procedural maneuver [people upset about that, but total majority control is not a good approach either], Republicans got a limited win by getting a tack-on that requires the federal background check database to notify Immigration and Customs Enforcement (ICE) when an undocumented immigrant tries to buy a gun. Swing district Dems went along.

Precedent suggests it will be blocked in the Senate, but the facts are on the record for when sanity rules there too.

ETA: Remember too that Cohen also testified behind closed doors.

Monday, February 25, 2019

Oscars and Supreme Court Watch

Didn't see the beginning, but the second half of The Oscars was pretty good and guess not having a host isn't a big deal. (Maybe, just have some representative introduce it briefly?) with many nice black, women, gay/lesbian friendly moments. And, then they had to ruin it by ending with Green Book winning? Oh well. Meanwhile, the Supreme Court in a brief per curiam (Sotomayor concurring without opinion) says you can't count a judge's vote after they died, even if the panel "decided" beforehand. Seems right though maybe merited a bit more contemplation. Also, district court held all male draft unconstitutional. RBG smiles.

ETA: I saw Juliet, Naked (no nudity) on demand and liked it. Rose Byrne very good. [To add two more.] Saw I am Not Your Negro on DVD; well, half of it -- it seemed a bit rambling and half of it gave a good feel of the general tenor. Good. Saw the lead of the foreign film Two Lives in other films (such as Nowhere in Africa) and that too was a half movie watch. Have less patience these days. Half was good; skipped to ending tbh. Felt a tad obligatory.

Saturday, February 23, 2019

The Bell Jar

The fiction of Mary Boykin Chestnut, of Civil War diary fame, was hard going so I put it aside. Did finish The Bell Jar, using the version shown here (with "PS" author background material). Overall, I liked it. Smooth reading, some insights of the young characters' struggles etc. A bit sudden fall into madness after she comes home and the latter part of her confinement (when she was on the way to recovery) might have been fleshed out better. But, it's a deserved classic. Couldn't get into Sylvia movie, which I watched when it came out.

And Also: Mets Spring Training started today. Oscars tomorrow; haven't been interested in them for a few years. I used to be a regular viewer but also watch movies in theaters much less too. The Favourite being one I actually saw.

Thursday, February 21, 2019

Excessive Fines Clause Incorporated (Explicitly)

Perhaps because they already did in dicta (if that; McDonald v. Chicago however ignored the case), the Supreme Court thought it obvious that the Excessive Fine Clause should be incorporated, doing so in an opinion under ten pages. The opinion is being cited as important given it included within its ambit civil asset forfeitures, but that too has been cited in the past. This was noted in the opinion to cite how weak the state's claim was in trying to argue they don't count. RBG wrote the opinion and seems to be doing well. But, maybe so. Also, not sure seizure of his land rover was that excessive for use for a felony. Borderline. Yes, it is 4x (but is that too much?) the criminal penalty, but the usage seems to be notable.

Also: What's left? Third Amendment (Griswold dicta, never pops up, but bet it can someday), grand jury (many states don't use them; doubtful), unanimous jury trials (one state left; quite possible, cited as a joker in opinion) and Seventh Amendment (civil trials; also broad reach).

Update: And, does it matter if we use the Privileges or Immunities Clause? Depends on how limiting it turns out to be. Justice Gorsuch already restrained the feds regarding immigrants in part by concerns about vagueness. Some limits on power will protect liberty of non-citizens. Also, including by originalist arguments, equal protection concerns should apply to them, including as a matter of due process. If this sounds substantive, it shows sneering at "substantive due process" is you know a bit stupid. Selective application likely.

Tuesday, February 19, 2019


The Supreme Court decided to take that census question case after all, the clock on writing the forms running out, even though a lower court opinion could have mooted the question. Unclear how broad the opinion will be. The justices, via per curiam, attacked a lower court for not following their precedent. Roberts, unlike in the abortion case, expressly said he was joining for that reason. Kavanaugh (unlike the other three) silently went along. Thomas flagged he didn't like NYT v. Sullivan, at least as applied to public figures like a Cosby accuser. Originalism aside, he might have a point. Clean Water Act case taken.

And Also: Sanders announced. Liz Warren fills his role, minus additional baggage.

Note: My comment is limited to the reach of current law to public figures. If strict defamation rules for people like a Cosby accuser are somewhat weaker, it very well might be acceptable. Public officials are of a different caliber. Maybe not, but worth thinking about.

Thursday, February 14, 2019

Patriots and Cosmopolitans: Hidden Histories of American Law

I enjoyed his Lincoln’s Code: The Laws of War in American History and after comments by him was referenced on a blog, I found this earlier book. It covers James Wilson, South Carolina freeman Elias Hill, feminist/pacifist Crystal Eastman (skimping her later years), professor Roscoe Pound and lawyer Melvin Belli. It is a bit too academic, but that is less of an issue in the second and fourth sections in particular. As a whole, interesting vignettes.

And Also: Eric Segall's Originalism as Faith is a case where reading his blog stuff/articles basically give you a feel of the topic. And, a summary (like a few pages why such and such result isn't really originalism) is somewhat underwhelming. Originalism ultimately causes my eyes to glaze over -- it is like counting angels on the head of a pin and a lot of self-righteousness [which is one of the most annoying aspects of it] on a foundation of sand.

Satanic Temple Religious Liberty Argument vs. Abortion Law Fails

And Also: Somewhat related, perhaps, is the whole Rep. Ilhan Omar kerchuffle based on a tweet where she said AIPAC (the Jewish, or rather some form of them, lobbyist group) is "all about the Benjamins." She respectfully apologized, which as this Republican noted, basically settles the matter.

He is right specifically on how sometimes a comment is going to cross the line, especially one said on the fly.  We say loads of things; one's overall record should be our guide. She brings a good perspective to Congress and will get pushback for saying things seen as unpleasant. And, unfairly (hey, Trump!) she will get some special attention, so to continue to be a respected voice, will have to take a bit more care. She can handle it.
In addition to the 72-hour waiting period, Missouri’s informed consent law requires a woman to review a pamphlet about fetal development, including language that says life begins at conception. The woman must also be offered the chance to see an ultrasound and hear the baby’s heartbeat.
Not surprisingly, the Missouri Supreme Court rejected (the quote is from the article) a challenge by a member of the Satanic Temple to the state's informed consent abortion law. Rejecting both an Establishment Clause and a religious freedom challenge.

"Satanic" here is sort of misleading branding since the mission "is to encourage benevolence and empathy among all people, reject tyrannical authority, advocate practical common sense and justice, and be directed by the human conscience to undertake noble pursuits guided by the individual will." This probably is the point though I think there is some serious content behind their ironic name (less so Pastafarians or something).  This is also the case, as I noted in the past, for "Universal Life" ministers that can be in effect self-ordained online and seen as something of a joke but later are popular wedding officiants as seen by a range of NYT wedding announcements as expressions of individual beliefs.

Anyway, the underling religious arguments are valid and especially with stronger RFRA claims (that go beyond what the Free Exercise Clause requires), there is a place for them.  Harris v. McRae rejected specific Establishment Clause claims, not all of them, and didn't even reach the Free Exercise Clause for standing purposes. The dissent ignored the issue though Justice Stevens later flagged the first issue in various opinions. Also, in Planned Parenthood v. Casey, the fact abortion is basically a matter of conscience was also recognized. The claims here might be seen as "hey if Hobby Lobby gets protections, why not me" tit for tat that just underline the problems with the doctrine, but there is something to it.

The basic point is that the choices involved in abortion are deep down matters of personal conscience that quite often don't just have a by chance overlap with religious beliefs. Take the "human being" and "life at conception" message that is part of the case at hand. These are not scientifically neutral statements of fact or something.  As expressed here, maybe the religious liberty claim is too weak (though if the state requires materials with it, the opinion is weak arguing it isn't really the state's message as such). But, it is still bad policy to require such divisive moral tinged messages, the words for many not applicable to fertilized eggs.

The overall question of abortion overall is even more freighted with religious significance and burdening the rights of some here is not only a free exercise problem.  Again, maybe this specific case (that avoided the earlier standing issue because the woman wishing to choose made the claim, not some organization deemed not to have standing) is weak. For instance, just providing an option of an ultrasound (as compared to a law that requires it) is arguably protective of religious liberty.  It still might be a problem because it is burdensome to clinics on other grounds.

Finally, as a state case, federal doctrine is not all that is at stake. The three day waiting period in general very well might be unduly burdensome, especially given specific facts, even under Planned Parenthood v. Casey. And, Justice Stevens' concurrence there specifically pointed out the problem and there the law was for one third as long:
The mandatory delay thus appears to rest on outmoded and unacceptable assumptions about the decisionmaking capacity of women... A woman who has, in the privacy of her thoughts and conscience, weighed the options and made her decision cannot be forced to reconsider all, simply because the State believes she has come to the wrong conclusion.
Note again how "conscience" along with privacy/liberty and equal protection concerns are raised in this context. The line between "conscience" and "religion" is often thin,* especially when a person specifically raises it in a religious context such as here.  The state court rejected the claim, however, because the three day waiting period did not have the purpose or alleged effect of interfering with her religious liberty.  If someone had to wait three days to choose what religion to be baptized in, such an argument might be a tad weaker. Again, I think the argument  has merit, but the best argument is against such a long waiting period in general. Still, WHY it is a problem will have a religious component.

A truly unduly burdensome abortion regulation very well in somewhat borderline cases can be more so if the person also has a religious liberty claim. This also would arise if for some reason state constitutional claims specifically are being made. Finally, however, the argument is likely best made when stronger ideologically based materials are at issue. The Supreme Court treating crisis pregnancy clinics differently here need to infect lower courts.  Nonetheless, like back in the day how religious liberty was a factor in such things as integrated marriage, religion is part of the issue here. And, it is fine -- including to show how an evenhanded application of RFRA would work -- to push the issue.


* We often hear of "freedom of conscience" though traditionally that was assumed to have religious content. There is some concern that "conscience" is too open-ended, especially for certain types of exemptions. But, that often is a matter of the exemptions themselves (see, e.g., for vaccines). 

Wednesday, February 13, 2019

Equal Respect v. Being an Asshole

Justice Kagan in her dissent involving town meeting invocations cited their legitimate reach: “speak of the depths of [one’s] life, of the source of [one’s] being, of [one’s] ultimate concern, of what [one] take[s] seriously without any reservation.”

Various governmental bodies include non-theistic invocations, but some people want to be assholes about it. Pure separation of church and state in practice won't happen for various reasons, but equal respect at least should be our goal. This works both ways -- have seen some liberals scornful of "religion" and I understand given how it is weaponized to harm (a few simply are skeptics). But, allies come in all shapes and equal respect should be our rule.

Tuesday, February 12, 2019

Lincoln's Birthday

Great speech with continual relevance. Note he was a bit cute -- the Republican platform was a threat to the South/slavery -- he wasn't some professor giving a nuanced take here. But, the in depth discussion in a day when the Founding were still in direct memory is still powerful and raises themes that still arise. A passionate fact-based attack.

Sunday, February 10, 2019

Amy 2020

Harris excitement and Warren had passion with an economic focused message; Klobuchar was more of a sedate Midwest nice with possibility of just doing her job and being the President for everyone (Middle America?). The snow was a nice touch. Her laundry list of the usual proposals didn't do much for me. Earlier there was some reporting of her being an asshole boss which is valid though I'd like to hear about the others in comparison. Usual concern.

When Christians Were Jews: The First Generation

I noticed Lent starts a bit late this year, but read this book now anyway. Not going to respond directly to the review except to say that yes it could have addressed critics a bit more but did address matters (and said so) before in more detail(e.g., full books on Jesus and Paul). In that respect, it wasn't comprehensive or fully satisifying, but was overall an interesting read. Bart Ehrman, who has also wrote on the basic topics, had a supportive blurb.

Friday, February 08, 2019

SCOTUS Watch: Late Night Edition

Chief Justice Roberts (the subject of an upcoming biography, which might be subtitled "Part 1")  is often seen as a crafty type concerned about the long game and the overall integrity of the Supreme Court.  The two late night (after 9PM, admittedly not that late for the last minute death penalty order) actions might be seen as a mixed bag in that respect.

As tends to be the case, the capital case of Domineque Ray (spoiler alert: he was executed last night) had various due process concerns. But, the matter at hand was a rather novel one -- could he have an imam present at his side instead of the Christian minister provided by the state. To be clear, it is not about only disallowing Muslim religious personnel.  And, some years ago, the Supreme Court in Holt v. Hobbs protecting Muslim prisoners who wished to wear short beards for religious reasons.  So, this seems like a fairly easy way for the Supreme Court to show they are consistent regarding religious liberty claims, instead of such reactions.  Especially after the travel ban ruling.

The not overly liberal Eleventh Circuit basically so agreed in a strong opinion, holding that the result here favors one religion over another.  It is unclear why the state could not tweak its process to carry out the prisoner's wishes.  Thus, Justice Kagan (who rarely dissents in these late execution appeals) ala her Town of Greece v. Galloway dissent, provided an eloquent call for religious liberty, evenly applied.  The majority (and often responses to these orders are merely "denied" or "we dissent") merely noted that the challenge was too late.  Kagan dealt with that claim as well.

This case suggests the difficulties with usage of state religious officials, the specifics of this state's practices perhaps novel. This was also an issue, to again return to the legislative prayer conext, in the 1980s case of Marsh v. Chambers. Justice Stevens specifically noted that usage of a single chaplain of a particular faith for so long had a tendency to favor one religion in practice. Kagan's dissent in the later case was similarly moderate, accepting usage of legislative prayer generally, but critiquing the nature of the practice at hand. Religion is touchy and in practice nuance is key. Bending over backwards should not just occur when birth control is involved.  The result is religious favoritism.

[It perhaps can be the case that the justices missed the religious liberty claim because all they saw was a late appeal in a death penalty case. They did protect prisoners in general, but this was someone due to die in a few weeks. Maybe.  But, this didn't impress many who were appalled, including some who are conservative in general.  Finally, compare the majority here with Justice Alito and Thomas flagging the religious and moral concerns of a constitutional nature in allowing non-lethal weapons. Which I respected; I even sent Alito a letter thanking him.] 


The case getting more attention involved handling an appeal upholding a restrictive abortion law out of Louisiana that seemed blatantly in conflict with a 5-3 Supreme Court precedent from a few years ago. The lower court en banc (with a strong dissent) argued there were differences. How much that really matters is dubious but it flagged a quite possible means of not totally overturning Roe (Casey) but severely weakening it in practice.  When a state might very well have one clinic, a "fetal heartbeat" law is not the only way to stop abortion rights in practice. There is a difference here, to be clear, but rights are not an all or nothing affair either. The test is after all "undue burden."

Since the membership of the Court has now changed, some are basically merely waiting for Roe to be gone. I think the rhetoric is a tad overblown, admitting that I can't get pregnant or anything. Again, we are talking about many laws that severely burden women here.  This drip by drip approach has occurred since the 1970s.  This case to me seemed like a landmine since it offered a chance for five justices to provide, as the law of the land, a weaker test (cushioned in so-called neutral fact based language or not). Not taking the case would send a signal, but not change the law.  To me, this might be a best of a bad situation choice.

What we got last night was in effect a "to be continued," which on the abortion rights side per one account was "not nothing" but a limited win at best. The majority didn't even provide a brief comment this time so the reasoning is basically by implication.  Basically, Roberts (and the liberals) appear to be saying that the law is dubious enough per the earlier precedent that it should not go into effect while the case is pending. The rule tends to be that this is done when there is a strong case of reversal, at least when the alternative would be burdensome to those affected.

It is rather risky, however, to assume that Chief Roberts would serve as the fifth vote to strike down the law. As referenced here, there is an argument that the state is more protective of the rights of doctors and abortion providers than Texas was, an argument that long term would seem to be a good "out" for Roberts.  A sort of "minimalist" approach.  The article also suggests how much respect we should give to Kavanaugh's "I'm just being reasonable here" dissent.  If the law is unconstitutional, delaying striking it down, providing more chances for burdens because maybe the state will play nice, is basically the whole thing the original ruling meant to avoid. The dissent, however, very well might foreshadow the eventual approach on the merits.

The result sends a message to other judges that similar laws are at least dubious though again it has no formal legal meaning in that respect. It also shows that Roberts does not want to speed up things in regards to abortion rights. We will have another partisan gerrymandering case soon, in part since the Supreme Court has less ability to avoid certain voting rights cases. They took a Second Amendment case for full review after around a decade.  A religious display case is coming. Hot button issues now that we have the start of a Trump Court will come. But, like driving on urban streets, Roberts rather it go a bit slow.

So, unlike the first case, this is a "to be continued."

Wednesday, February 06, 2019

Baseball Approaches

Moving past Super Bowl travesties, pitchers/catchers are due to report soon and we are about two weeks from televised Spring Training Mets games. Also, there is talk of a lot of changes including (whenever it comes) ending the DH in the NL. Ugh. There is also talk of each pitcher needing to face at least three batters. What of the LOOGY? Changes don't really sound that positive. Ending defensive shifts? Eh. Meanwhile, The Bookshop was a tad too precious quirky for me but nice lead and lack of a deus ex machina is honest enough.

And Also: Book pile reduced a bit by a couple more not doing it. More to come. Skimming long RBG biography; doesn't seem worth a full read though has some interesting tidbits.

Saturday, February 02, 2019

Black History Month

Short month, so the news started early. Cory Booker declared his candidacy for POTUS, his specialty criminal justice, being a vegan and enthusiasm. Problems would include some connections to money and education ... and coming off as a bit too much of a showboat. Meanwhile, after remarks related to a proposed abortion bill, the governor of Virginia (D) got in trouble for a racist medical school yearbook from the 1980s. I'm wary about such ancient history (not attempted rape either) forcing him out though his attempts to explain it away today did him no favors. Plus, guess in this day and age, the taint means he has to go.

And Also: No Human is Illegal is about an immigration lawyer in the age of Trump.

Update: The governor just might hold on while someone else third in line mentioned (handling the announcement better) that he put on blackface himself back in college/1980. The lieutenant governor is accused of a sexual assault that happened fifteen years ago and of course came out AFTER his election in 2017. The responses (some at least) are starting to get a bit more reserved, wary about requiring people to resign (over focus on elections as deciders). My immediate wariness is starting to seem a good call. But, let's wait and see.