Trumpism Threatens the Courts

Reuters had a powerful article entitled "Judges in Trump-related cases face unprecedented wave of threats."

Since Trump launched his first presidential campaign in June 2015, the average number of threats and hostile communications directed at judges, federal prosecutors, judicial staff, and court buildings has more than tripled, according to the Reuters review of data from the Marshals Service, which is responsible for protecting federal court personnel.

Judges have been subject to threats and violence. The shooting of Rep. Gabby Giffords included the murder of a judge. Members of families of judges have been murdered. 

Someone showed up at Kavanaugh's house with a gun, a knife, and tactical gear. He was captured before doing anything, but that is no reason to handwave the threat. Congress in 2022 passed a law to help protect federal judges, including keeping certain personal information private. 

Like that old PSA, there is an "I learned it from you" feel here:

Many of the threats against judges examined by Reuters echo Trump’s statements in social media posts and speeches, where he has attacked judges as “totally biased,” “crooked,” “partisan” and “hostile,” dismissed courts as “rigged” and called prosecutors “corrupt.” Threatening messages on pro-Trump online forums often repeat those terms or cast the former president as a heroic figure besieged by corrupt judges in secret “Democrat” plots.

The problems apply to both federal and state courts:

Arizona’s Maricopa County, an epicenter of unfounded election conspiracy theories, logged more than 400 cases of threats and harassment targeting judges, their staff and the courts between 2020 and 2023, according to previously unpublished county data reviewed by Reuters. Maricopa officials didn’t track threats until noticing a spike in 2020, a county official said.

This so-called (to cite Trump's side) "political speech" has encouraged multiple types of threats. "Doxxing" is the release of private information. "Swatting" is when someone makes a false call to the police regarding the need for emergency services.  There are also threatening phone calls. The threats are to judges and members of their families.  

Over the last four years, the Marshals investigated more than 1,200 threats against federal judges that they considered serious, according to the data provided to Reuters. Among the 57 federal prosecutions Reuters identified during that period, 47 involved threats against federal judges, six involved threats against state judges, and four involved threats against both. There is no national data on state-level prosecutions for threats against judges.

Nonetheless, in a vast number of cases, no charges are brought. Warnings are also given by judges in the Trump civil and criminal cases. He once had sanctions applied. It hasn't changed his basic behavior. 

When Harrison Floyd, one of the Georgia defendants, tagged people he was directly told not to contact, he just received a warning. His bond was not revoked. The rules were "clarified" so he (like Trump has) can know just how he can skirt the line. 

Judge Reggie Walton, whose daughter was also targeted, is named in the article. He went on CNN -- it is a novel thing for a sitting judge to do this -- to speak out:

We do these jobs because we’re committed to the rule of law & we believe in the rule of law & the rule of law can only function effectively when we have judges who are prepared to carry out their duties without the threat of potential physical harm.

A partial gag order has been applied to the New York criminal case. Manhattan DA Alvin Bragg argued the judge “should make abundantly clear that the [gag order] protects family members of the Court, the District Attorney, and all other individuals mentioned in the Order.”

Trump has already gone after the judge's daughter, including with his usual disrespect of the actual facts:

Trump on Wednesday also went after Loren Merchan, pointing to an account on X, which was formerly known as Twitter, that he said belonged to her, which showed an image of Trump behind bars. However, the court later released a statement saying that the account did not belong to Merchan, but rather someone else.

As the Talking Points Memo summary linked above notes:

This is, of course, only the latest in a months’ long series of Trump attacks on judges, court workers, prosecutors, witnesses, and others, with full awareness of the risk of inciting further threats and potential violence.

I have seen multiple concerned liberal types lecture people upset at how so little is done to address Trump's (and in some cases, other people's) comments of this nature. They are hysterical on social media. They disrespect freedom of speech. They do not respect the rights of defendants. They do not understand how the criminal justice system works. 

As a former federal judge noted last night on MSNBC (Melissa Murray and Andrew Weismann had a special regarding the Trump trials), this basic sentiment is bogus. Trump is again and again getting special treatment. People in regular trials who have said and done things he has done would have their bond revoked. At the very least, concerned liberal types should grant that Trump and company are playing a dangerous game.  

Judge Luttig, who strongly argued that the Supreme Court "dangerously betrayed" democracy in the 14th Amendment case, reacted to Judge Walton's [a Bush41 appointee] appearance on Twitter:

It is a regrettable commentary on our times that a lone federal judge, The Honorable Judge Reggie B. Walton -- because no one whose responsibility it is to do so has had the courage and the will -- would finally be left no choice but, himself, to express on national television.

That is a bit harsh. Others have spoken out. Nonetheless, the sentiment has bite. I think my recent comments about the Magni nomination are part of this. The bullshit* and lies aid and abet Trumpian hatreds and threats. Do you not think that the campaign against the Muslim-nominated judge succeeding will not benefit the same overall poison involved here?

This is the Republican nominee for president. Republicans control the House. We still have to worry about a "trifecta" of these people, who simply do not care about how their candidate is threatening the integrity of the courts. If they truly cared, would they support Donald Trump? 

The "Trump Trials" link provides details about celebrities who read from the Trump indictments. Shades of celebrities who read from the Mueller Report. The report included a list of possible criminal allegations against Trump. I will end with the upcoming trial since this is what -- as Judge Walton noted -- we need to focus on (equal justice):

"On the hush money payments, the defendant, Donald J. Trump, repeatedly and fraudulently falsified New York business records to conceal criminal conduct that damaging information from the voting public during the 2016 presidential election," Close reads from the indictment.

Keep your eye on the ball.

==

* As Laura Penny wrote in her useful book on the subject:

"Bullshit distracts with exaggeration, omission, obfuscation, stock phrases, pretentious jargon, faux-folksiness, feigned ignorance, and sloganeering homilies."

Bullshit involves people who do not care about the truth. They might not directly lie. Nonetheless, the result is largely the same. 

Couple Books

Hani and Ishu’s Guide to Fake Dating by Adiba Jaigirdar is a "fake dating" book, which those who are knowledgeable about the lingo is a category of romance novels.*  

The book actually takes place in Ireland, which doesn't really change things much though there is some lingo (like "head girl") that is specific to the setting.  More importantly, "Hani" is Muslim, and the characters are Bengali.  So, we have a lot of cultural references, which could have been more easily understood with a glossary.  There are also a few foreign language bits. Again, not translated for the rest of us.  This sort of thing is annoying.  The book is surely not just for a narrow audience who is familiar with these things.  

Okay. What about the book?  I liked the book as a whole.  From the book jacket and such, I got the idea Hani (the two names are nicknames; names are one good subject referenced; the book also has a lot of family stuff) alone was hiding that she actually liked Ishu (to be clear, both are girls).  

But it turns out -- earlier than I thought it would be -- both really like each other. And, after a while, it was like -- okay. Come on.  You like each other.  It's damn obvious!  So, I think that dragged out too long.  Other than that, I think the book balanced a lot of stuff pretty well.  I speak of family, culture, religion, same-sex relationships, and more.  

The two leads are good characters, and their relationship is very cute.  It's an example of how young adult books can be appreciated by adults.  Again, I think it was drawn out too long, so that bothered me somewhat.  Still, I read the whole thing, which is harder for me these days in general.  So, that's a plus on that side.  I do wish she included a glossary.

==

Like the menstruation book, but more so, Wildlife as Property Owners: A New Conception of Animal Rights by Karen Bradshaw is worthwhile without being something great for reading straight thru unless you are a bit of a specialist about such things.  It is not long -- around one hundred and fifty pages -- so it isn't that hard to actually basically read the whole thing. 

The book argues that we should give wildlife, and long term probably nature as a whole, property rights. She quite convincingly argues that wildlife always had a form of property rights, both as a matter of natural law, custom, and in various ways written law.  

(She cites a law article about giving trees standing, but for some reason doesn't reference Sierra Club v. Morton, where Justice Douglas famously talked about it too.)

Property ownership, she notes, involves various things: acquisition, exclusion, boundary marking, dispute resolution, and property transfers are all done in various ways by non-human animals.  Two things not done by non-human animals would be third-party enforcement and alienation (giving up control).  A key part of the book is the first: trustees for wildlife.

The nature of animals here shows a "natural right" to animal property can be cited. This right is also recognized by custom, including Native Americans, which also is reflected in some of their own constitutions.  

Law over the centuries also recognized some rights for animals, including being able to travel over private lands and protecting their rights in various cases.  Environmental protection laws exist. Finally, protection of federal land (one reference is that the feds control about a 1/3 of the land) in practice includes protecting property rights for animals.  

The book goes into the details here and the weeds started to make my eyes glaze over a bit.  Still, skimming through the material, it was good stuff.  I can see the basics being able to summarize in a relatively short law review-type article.  

(The natural property rights of animals chapter was the most interesting to me.)

Finally, the book does not focus on animal rights vs. welfare on an individual level like someone like Peter Singer.  She argues that property rights can be a useful approach since the law already is in place and can be adapted.  This makes it more likely that it can be put in place.  

The concept of the book turns out not to be that revolutionary at all.  It requires some new policies, including setting up trusteeships.  It would require tweaking standing rules, which would be within the parameters allowed. We need to determine how to best address the needs of animals (and nature), which can conflict. Okay. So, we take a complete "ecosystem" approach.  Still requires some subjective policy decisions. 

The end conclusion I have is that her approach still is quite possible. It is again working off what is taking place in various ways already.  That is usually a common way to bring forth change.  

---

* I arbitrarily, though my editor removed referencing that, picked the top ten romantic comedy novels and somewhat arbitrarily included this one, since I saw it at a local library. It also allowed me to toss in a young adult book.

Opinion Day

The Supreme Court cleaned some pending matters today with a busy opinion day. Five opinions, one each for the five with the least seniority (Barrett, Kavanaugh, Gorsuch, Kagan, and Sotomayor).

That is one unlikely majority, especially with Breyer more senior along with the Chief Justice, Thomas, and Alito. Sotomayor has it a bit easier with Breyer replaced with a junior liberal. Still unlikely as would be the in theory possible Kagan-Jackson majority. The best bet is to find something the high Federalists would dissent for and Roberts is recused. Kagan is harder. 

(The release -- again automatically since they don't show up for opinion announcements these days, denying us a chance for opinion announcement audio at Oyez.com -- came least seniority to most.  I won't do it in that order.) 

There were two unanimous opinions.  Barrett had a procedural opinion that gave a limited win (allowing the person a chance to fight on) regarding a tax case. Happy Tax Week.  Maybe, the IRS will finally clear up my issue.  (I asked AOC's office for help.  I thought they forgot about me but then got a call that they need a privacy waiver.  That day I receive another letter from the IRS saying they found another reason to delay things.)  

==

Kagan also had a procedural opinion that helped the person who brought the appeal, but only so much.  Providing some of her skillful prose ["The path of our decision has been as short as the hunt for Rue Saint-Honoré was long; our ruling is as simple as the conflict over its rightful owner has been vexed."], and attaching a couple pictures of the art, she explained why California law should be applied in an attempt to get back some Nazi seized art that wound up in Spain.  To be continued. 

(SCOTUSBlog has analysis to explain the nuances a bit more and  it sounds like the family of the original owners still have a stiff hill to climb.)

==

Kagan's pen, quite sharp, was in dissent in a Gorsuch case involving habeas.  I do not claim to have the expertise to parse such things, but Steve Vladeck and Leah Litman are usually reliable. So, if Mr. Shadow Docket thinks Kagan (for the liberals) is right for sneer at Gorsuch's "law office history" etc., her passion not for this case particularly, but the likelihood of what it will bode for the future, I'm inclined to agree. 

[Prof. Litman also panned Breyer's latest "book" (if noting her liking the man) in a well received article.]

===

Sotomayor had the opinion (Alito thought the the majority went somewhat too far; Thomas for Gorsuch & Barrett dissented) in case involving regulating signs.  The ordinance was upheld and as Breyer noted in a fairly convincing (to me) concurrence, part of the problem here is that the Roberts Court has become too one note regarding free speech cases, even when regulating commercial matters of this type.  

==

The most notable opinion involved Puerto Rico.  

Kavanaugh had the opinion upholding a federal policy where someone might be denied SSI benefits if they live in Puerto Rico. Ian Millhiser wrote last year (this case was argued fairly early, making one wonder about the drafting) that this was a tragic case.  His write-up today does as well.  

The tragedy is that justice is on the side of the litigant, but the result might be open season to second guess financial policy that can lead to unfortunate results.  For instance, my governor was upset the Supreme Court didn't take a case where blue states alleged a certain tax policy was discriminatory to blue states.  But, what constitutional rule protects states like that?

This suggests why this opinion was 8-1 though the opinion itself was a thin six pages.  It is basically a case of wanting to get rid of the thing.  Justice Thomas wrote a concurrence finding a new constitutional toy -- he argues that federal equal protection should not be a 5A due process matter, but rest of the 14A Citizenship Clause.  Thomas does, unlike in his same sex marriage dissent (where he had a long passage sneering at it), recognize equal citizenship has a "dignity" component.

At least, he "tentatively" talks about this. Now, on some level, a broad reading of the Citizenship Clause is not a bad idea (various liberals suggest it), but using (as noted in Legal Twitter) his usual selective history, abhorrence at applying equal protection to benefits, and so forth, the whole result is something of a mess when he does it.  Plus, history and precedent does back an equality aspect to due process of law too.

Gorsuch, in one of his "when the asshole is right, he's right" opinions, concurs to argue the Insular Cases should go.  These were a series of cases from the turn of the 20th Century until around 1920 that held the territories obtained after the Spanish American War can be treated differently than others.  He notes (as does Sotomayor) that it was not requested, so he would not dissent on that ground.  

(A few noted that since Gorsuch's concurrence summarized our racist history, that it might not be able to be taught some places who have problems with critical race theory.  Perhaps, such laws are vague enough to have loopholes for this sort of thing.)  

Anyway, it isn't clear (thought the majority avoided the point), if that alone would do the trick. During oral argument, the federal government argued that it was reasonable to treat states differently for purposes of tax policy if it was rational to do so. And, that is fair, but Sotomayor argues in her dissent (agreeing on the Insular Cases) that it is not shown here.  

The advocate for the claimant here (and it seems if he was granted a waiver, the whole matter could have been avoided) made some open-ended arguments during the oral argument.  He suggested the Guarantee Clause and so forth warranted treating the Territory Clause as not a fully open-ended congressional power.  The assumption was that at some point a territory would become a state or be treated on some sort of equal footing.  

It was a rather broad argument though could be a method of constitutional avoidance mixed in with an argument that Puerto Rico is special too in that it is more powerless (no representation in Congress except for a non-voting delegate).  But, Sotomayor argued even rational basis failed.  

I think the case was hard (see Ian Millhiser again), but would look at the regulation with a questioning eye all things considered. Thus, to use the jargon, at least apply rational basis with teeth.  And, policy-wise, change the rule.  Administratively, give the guy a waiver.  Avoid hard cases when possible.  

It seems like it was possible here.  

===

There was also a separate press release announcing an upcoming celebration of Justice John Paul Stevens (who would have been 102 on 4/20) on May 2nd.  Stevens regularly posted speeches on the Supreme Court speech page.  Perhaps, in honor of his open government approach, the release notes the event (which will involve Garland, Stevens' granddaughter, and other notables) will be streamed via the website.  

ETA: I also see a few more online links have been added.

TV Watch

I checked out the first episode of the new Chucky series (I liked the movies as a whole; did not watch the third and thought the last a bit garbled). It starts off on an impressive footing, with good performances, writing, music, and atmosphere. It also appears that you are allowed to say "fuck" on USA Network. The series has received some kudos as well for being GBLTQ friendly. Jennifer Tilly will be back. Maybe, they can get Catherine Hicks!

All Rise, the diverse crime drama led by a black woman judge appeared to have been cancelled after a two season run on CBS. The show had some behind the scenes drama with the showrunner, but ended fairly well. It in fact will return on OWN Network, which I hopefully have. We will see how this goes, but sounds good. The range of possible networks and platforms allows salvaging such worthwhile material.

A Taste of Honey (along with another film with the young British actress in the lead) was on TCM. It is a B&W film from 1961, which has some Mike Leigh in it. In that, I mean a realistic look at the working class without bells and whistles. It's well acted with people who seem like real figures (including a sympathetic gay character), not performers. This includes flawed characters and a somewhat downbeat ending [see link] though that part is not really totally necessary for things to be realistic. The actress still is acting today.

Abortion Ruling is Clearly A Religion Clause Issue

Reference is made recently at Religion Clause of a district court issued a preliminary injunction to the severe anti-abortion law in Arkansas.

This is the sort of thing Texas is trying to avoid via their "hey, it's just private parties" enforcement approach. Think antebellum states trying to get out of the fugitive slave retrieval business while also passing laws that support the slave states. How well this will work remains to be seen. The validity of the move as noted in the comments is dubious, but will it be hard to attack pre-enforcement in the courts? The comments are closed here but other law professors appear more open to the suit.

The district court opinion is really a holding action until the packed Barrett Court decide abortion cases. But, the citation on a blog focused on religious issues, without discussion of why exactly (as if it's obvious), is fitting. Abortion disputes are in a basic way about religious matters. Planned Parenthood v. Casey correctly spoke of it being a matter of conscience.

SCOTUS Watch: 3/3

These three [of eight left] (SCOTUSBlog summaries) were covered on Friday with Thomas joining the liberals in the standing cases and the liberals splitting in the other two:

[1] In TransUnion, LLC v. Ramirez, the justices held 5-4 that only a plaintiff concretely harmed by a defendant’s violation of the Fair Credit Reporting Act has Article III standing to seek damages against that private defendant in federal court.  

Comment: Kavanaugh wrote this one and it has potential to restrain access to the federal courts. Like the administrative law type appointment/removal etc. questions, if somewhat more "judicial," it is troublesome Congress' power to set discretionary policy as they deem the needs require is being interfered with here. And, in a way that is likely to set up various confusions.  Like in the Takings Clause case, things like "concretely" is rather subjective.  Standing law is infamously arbitrary.

Thomas has a strong and blunt dissent that is straightforward and joined by the liberals except in a minor way.  Kagan basically finds yet again something precedent requires, but notes that the point of disagreement shouldn't matter much.  Thomas notes that the majority opinion in the long run might not be too helpful for the credit agency since it leaves open state lawsuits though the judges are concerned with their own power here.  

This is one of these cases where people who are intuitive notice that even if abortion rights still exist and such, the Barrett Court (to use Stevens' approach of labeling it with the latest confirmation) has moved things significantly.  It is a "limited" movement if you assume the Court was really going to move really far.  But, that's spinning things.

[2] In HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Association, the justices held 6-3 that under the Renewable Fuel Program’s fuel blending requirements for domestic refineries, a small refinery that previously received a hardship exemption may obtain an “extension” even if the refinery did not seek a hardship exemption every year after initially doing so. 

Comment:  The notable thing on some level here is that it is not only Barrett's first written dissent, but the guys are going against the girls. Both are somewhat trivial, of course, but also Breyer can at times be more "conservative" or otherwise stand out from Sotomayor and Kagan.  How that applies here is unclear, but you can see divisions there. I won't pretend to know who is right here; it is basic use of judicial power to provide clear answers among reasonable options.  But, both Trump appointees (Gorsuch wrote the majority) was sure textual analysis was clear one way or the other.  As usual, as noted in Strict Scrutiny Podcast, not really.

[3] In Yellen v. Confederated Tribes of the Chehalis Reservation, the justices held 6-3 that Alaska Native Corporations are “Indian tribe[s]” under the Indian Self-Determination and Education Assistance Act and thus eligible for funding available to “Tribal governments” under Title V of the Coronavirus Aid, Relief, and Economic Security Act. 

Comment:  Sotomayor, Happy Birthday, wrote the majority here, tossing in a fish related example (SSP really hated it) that both the majority and dissent went with. Gorsuch dissented, which might have miffed him given his role as the "tribal judge," but the issue here was how to allot funds between various tribes.  So, even though Native American issues is one area where Gorsuch stands out some -- putting aside certain cases without much ideological heat -- it is not a straightforward issue. 

===

Five cases left, including a major voting rights case (or two; there is a disclosure case too). On that front, there is also action outside the courts as seen by the filibustering of debate on a major voting rights bill. Also, the Garland Justice Department Friday morning announced they will sue Georgia, alleging their new voting restriction law is discriminatory.  

Thursday was the last scheduled conference until the "long" conference in September preps for the new term in October.  

We then (people who keep an eye on these things) waited for the Supreme Court to schedule the next opinion day. And, waited.  Day ended with nothing.

Filibusters

There was a good summary of the history behind the filibuster and the point we are at the moment that reminds that the NYT does have value among various instances of it not. The matter is of particular importance at the moment, when there is a push (and apparent openness) to think big on what the federal government should do, without letting Republicans in the Senate block it. How far will this go?

The look at the text and history of the constitutional history here is informative. I think the text should (anyway does) have some important role here while history (including original history) should (but does anyway) have a more mixed role. History, surely someone with a BA in it and who now helps by writing little historical summaries for a site geared to high school students, is valuable. Decisions are made with it in mind. It just is a changing thing with various moving parts that we can use in various ways.

The text, to be clear, tends to leave a lot of space in most hard questions when resting on that alone. This is especially the case here. It is quite true that only a few things require a supermajority by constitutional rule (the op-ed cites some of the history here) but it also provides the Senate broad power to set rules of proceedings. The fact that only something like treaties requires a supermajority doesn't mean no respect should be allowed to the minority, blunt majority rule always winning. That isn't a good way to do things generally. But, that leaves open a lot of ground.

I will honestly note that during the Bush Administration, I argued that filibustering judicial nominations (at least) could be legitimate. It to me was a way to deal with certain wrongs involving the election of Bush, the two senator rule resulting in a majority of people represented by a minority of senators and the to me overreaching of the Bush side. OTOH, in hindsight, it is unclear how helpful the whole thing was. Most of the judges got through anyway and the precedent hurt President Obama. It is even unclear how much it helped to block controversial legislation. Also, should it?

We saw eventually that the back/forth led Democrats in the Senate to end filibusters for executive nominations (a rule that they never had a chance to apply to the Supreme Court, but Republicans did for Gorsuch). In effect, after years of both sides actually doing it, the whole thing was being used too much for the Democrats. This included Republicans refusing to confirm any judges for D.C. vacancies or to fill an agency that they didn't like. Other basic filibusters like blue slips (which Republicans didn't respect when control changed) also factored into the situation.

The result helped the Republicans fill in a lot of court slots, though there are ways to compensate (there are a lot of senior status slots, already starting to be taken, alone open, but the big solution is both quick confirmations and expanding lower courts). A few abuses of note here -- especially at the Supreme Court level -- very well can be cited. But, long term, this is good policy. Why should those who don't win elections have the power to fill the courts? Leaving slots open for years is abusive.

Then, we have policy. As some have noted, as a whole, even during the Great Society (involving controversial policy), filibusters have not historically been used much to block legislation. Surely, not to the extent used in recent years. The big story there was civil rights, but even there, there was often as much of a majority settlement against them. I think -- without analyzing the data in detail -- one can exaggerate. For instance, national education policy was blocked in part by filibuster as I recall in the post-Civil War period. But, it seems to be the sort of thing that might be used in a limited fashion, but not like more recent assumptions that it takes sixty to pass things.

So, we come to the present. Mitch McConnell at first blocked the rules for a new Senate because he wanted Democrats to agree to the filibuster for the next two years. The Democrats said "no way," but there is constant references to Manchin and Sinema in particular not wanting to let go of the filibuster. Some even fear -- though he consistently has voted for Democratic policies when it matters -- Manchin would switch as if he was some sort of DINO. Sinema, a newer member from the new Democratic state of Arizona, is a more interesting character there. How far will she go?

It's unclear. The first test was the rules. Next, comes financial matters which can appear to be something you can settle via the reconciliation workaround. That seems to be a key approach here -- avoid as much as possible any way to push the point. Change comes over a span of time, people appropriately pushing, but not all at once.

There already is talk that Biden saying he is for "unity" doesn't mean he will just agree to anything to get bipartisan votes. Basic core things will be demanded, details can be negotiated. How far this will go is unclear. We now have a probably not first ten Republican caucus proposal (thus 60 votes with the Democrats) on COVID.  The big test might be voting rights.

There is also an argument, one I noted above, about how each half of the Senate are not really equal. The Democrats represent many more people. I think that's valid though obviously that pushes against a constitutional rule. But, hey, the filibuster itself is not found in the Constitution. It supposedly is there to advance the overall principle of debate (ha ha) and the cooling saucer of the greatest debating society and all that. Such open-ended principles can factor in a lot of things, especially when the Senate equal vote rule is so locked in. 

When things are so locked in, you usually have workarounds too. A final thing there is that we are realistically stuck with a party in both houses (if somewhat less blatant in the Senate as seen on 1/6) that refuses to do the bare minimum. As an impeachment trial (people keep on saying "impeach" as if it means removal) already starting, the House Minority Leader goes to meet Trump. Can't wait a little bit, huh?  Republicans cannot simply even agree (though voting against tabling the question is not technically the same as supporting the merits) the impeachment trial is acceptable.  Bare minimum republican values, far from policy disputes, cannot be granted by even some significant limited number of them. 

Some would deem 2021 as the true beginning of the twenties. Should be interesting.

When Should the Law Forgive?

After reading Eric Foner's new book on the Reconstruction Amendments (good summary; get those high school students a copy) that had a Martha Minow blurb, read this small volume. She covered the same ground in short form some years back. It specifically covers child soldiers (giving them some agency can help; forgiveness requires admitting guilt), financial debts and pardons in general. Helpfully, she doesn't try to get firm answers, raising various questions and suggesting possible approaches. It did feel a bit rambling though.

Also: Brewers had a great September and then simply stopped winning last Friday. Hader blew a save to prevent the NL Central to possibly be decided in Game 163 (they lost Game 162 in the 10th anyhow) and then (with help) blew it in the eighth in the Wild Card game.

SCOTUS Watch

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

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

Baseball and Books

Couple late nite finishes in the playoffs and neither ended well in my eyes. Brewers still need to just win two straight.The Endings is a good idea, well done: photographs that tell a tale of loss for various women, a few portrayed by well known actresses. I'm not sure how far I'd take it but Why Honor Matters is at least an intriguing read up to a point. For instance, the Republicans during court battles to me in part are dishonorable -- in your face -- and Democrats need to factor that in when responding. Pragmatics need to take that into consideration as seen by the negative reply to a recent "compromise" that I'm not alone confused about the value of. But, not sure how far that is a matter of "honor" exactly.

ETA: Another team I preferred was eliminated, the Astros only winning one, in part thanks to a bad call and great catch at the end. Well that was Game 4, but it sealed their fate.

Ninth Circuit: Monkey satisfies Article III, but lacks statutory standing under Copyright Act

Talking about a monkey owning selfies as a claim sounds silly, but the basic constitutional standing argument the panel finds questionable isn't. Following links, the case cited left open the idea of Congress granting statutory standing to animals (e.g., to protect their rights under law) via their advocates. The subject criteria of Art. III (such as statutory claims) leaves that open. Douglas was right back in the day there. More widely, I think, if a corporation can be a legal "person," a monkey can be. A cat is more of a natural person than Hobby Lobby. Likewise, if ships, property etc. can be "sued" and sue, why not (legally) animals? ETA: Michael Dorf has more here.

Trump Pardons Arpaio

ETA: A few people argue the pardon is unconstitutional given the nature of the charges, in place to enforce a court judgment regarding violation of constitutional rights.  One thing that eventually came to mind was that he is out of office.  This alone makes it questionable to me that a criminal punishment is of fundamental importance to this extent.  Still, though the phrasing of "unconstitutional" doesn't convince me, I understand the overall message that is being sent.  There is a certain constitutional duty that is being violated here; it isn't just a horrible pardon. 

Racial profiling, ignoring sex crimes, and birtherism: Arpaio’s legacy 

The sheriff Trump just pardoned has done severe damage to Arizona, and to the country.

Arpaio is a Trump role model. The idea Trump would pardon him -- months before he even was sentenced -- still seemed outrageious. Yes, he tossed around the idea at a rally in Arizona, but he often is hot air.  The top punishment would be six months, but the guy is out of office and in his mid-80s.  Would he even get any prison time? At least wait .... plus, there was Hurricane Harvey in Texas. 

Arpaio was found guilty of criminal contempt for breaking a court order regarding a finding of racial profiling.  In a tweet, Arpaio blamed Obama holdovers.  The court order was handed down by a Bush43 judge while a Clinton appointee later handed down the contempt conviction.  A 1920s Supreme Court opinion said a pardon there was allowed.  But, the question itself underlines the court, not Obama, was ultimately the party behind the contempt.* In fact, a rather dubious argument (cited here) is made that in this special case involving enforcement of a court order to protect constitutional rights, a pardon isn't even allowed.

[The argument that due process, the Fifth Amendment, is an amendment to the pardon power seems off to me -- I think due process was generally accepted to exist anyhow. Plus, the importance of court process to enforce rights goes to the inherent power to contempt arising from Art. III alone.  Plus, various crimes are in place to protect constitutional rights. Why is court process here uniquely important?  Finally, it is unclear to me that other means -- such as civil contempt -- cannot be used. Plus, yes, there already is an exception for impeachment. Why assume more?]

He pardoned the guy though. Republicans need to do more than talk when he does things like this.  They have to do actions to underline that a certain level of dick-ness will have real consequences.  A Lawfare blog analysis noted: "Notably missing from the White House statement was the reason Mr. Trump gave at his political rally in Phoenix. He indicated then that Arpaio was “convicted for doing his job.” You basically got this in the press release released as well, if you did a minimal amount of reading between the lines regarding the praise of how he "continued his life's work of protecting the public from the scourges of crime and illegal immigration." Yup. Extra level of pissed off.

I shall repeat: I don't think the guy was going to be put in jail for six months, particularly now that he's out of office. So, the pardon was a full-fledged "I approve this message."  F rule of law. The pardon as a raw matter of power is allowed -- the argument above that it is not allowed is you know not likely to be made (e.g., the judge can just sentence him anyway, arguing that the pardon is illegitimate).  He will retain the pardon.  And, though I don't necessary think it's a statement of guilt [even here Trump in effect is saying he was a victim of injustice; in another case, that might actually be true], the contempt isn't taken off the books. It can be raised in a civil suit.

The fact that the pardon is not unconstitutional is not in itself conclusive. Government officials repeatedly have the power to do something without it being the right thing to do. A horrible war comes to mind. And, the reason why this is horrible has constitutional implications: it disrespects court judgments, furthers racism and even the slipshod way it was given (without going through normal processes, even waiting for the sentence) is problematic. Courts have every right now to not give him the benefit of the doubt regarding respecting court orders. Plus, it can still be an abuse of office. A pardon that arises from a bribe can be grounds for impeachment for the bribery. Like speech being used for criminal acts, this is sort of "pardon plus."

Trump is the poison that keeps on giving. This was after he finally got around to putting in place the trans ban in the military.  The courts will now get involved, but like DADT, Congress has every right to step in. After all, even conservatives like Sen. Hatch opposed the move, right?

---

*  As noted in the last link related to this story, the prosecution was carried out by the Justice Department.  But, the court asked the U.S. attorney office to file criminal charges.  The court has civil powers of contempt, but has to rely on the executive for criminal charges. So, that what was meant.

The article, which I saw while writing this, discusses how Trump wanted to stop the prosecution in mid-stream, but Sessions said it would be in bad form.  But, Trump was going to pardon if he was convicted -- so heads you win, tails justice loses.  Trump's individual involvement in an ongoing prosecution to help a pal underlines his disrespect of the rule of law. 

And More: One thing that comes up is the assumption a pardon is an admission of guilt.   I don't think so -- the current law is that a pardon is a choice that it is necessary for the public good, not merely an act of grace. Still, his conviction for now was not tossed. This often happens, but a hearing has been scheduled to determine if it should be here. 

Gorsuch Hearings

I myself can't stomach watching [thanks Twitter] Judge Gorsuch, who sounds full of shit and is here thanks to to the Republicans' unprecedented (and wrong) blocking of Garland. You are tainted too, Gorsuch! No, the "Biden Rule" application is b.s. But, do agree hearings in general have an educational function plus serve an overall legitimizing role by putting him out in the open interacting with senators. Finally, do think a bit of the person and views do come out, helped by reporting/commentary. Very well the questioning is stupid and it is right to expect more substantive answers. But, that doesn't change the rest. Fix that!

And Also: Sen. Schumer uses Russia investigation of Trump Administration as reason for delay. Sure. I see this as all connected though some things are more so in certain ways.

Judge Gorsuch's Originalism Contrasts With Mentor's Pragmatism

I'm annoyed that Senator Gillibrand's statement against Judge Gorsuch did not mention Garland, but opposition on the merits is fine. A NPR piece on his originalist views shows this, with a reminder "text" is not the same thing "artificial selective citation of what it meant back in the day." Pragmatism like anything else can be selective as seen by White who in various ways applied it well but was one note on abortion. But still is more credible.

And Also: His views on Chevron leave something to be desired long term.

SCOTUS Watch

Special opinion day (which SCOTUS didn't announce on their website) to hand down a criminal justice opinion yesterday. There were time restraints but couldn't wait a day? U.S. v. Texas was heard -- talk is a 4-4 split or punting on standing. Two technical rulings today, one partially 4-4 with a discussion on the rules for full faith and credit of "acts." The context was narrow (and written by Breyer) but can see the "equally dignified" states rhetoric used in a Shelby v. Holder (problem there was a reasonable ground for different treatment) context.

Rev. Joe: ULC Church Reprise

The ULC has no traditional doctrine. We, the organization, only believe in that which is RIGHT. Each individual has the privilege and the responsibility to determine what is RIGHT for him as long as it does not infringe on the RIGHTS of others.

A federal appellate ruling out of the 7CA a couple years ago referenced the ULC Church is an opinion holding that if you allow a minister to solemnize a marriage, you constitutionally must also allow a humanist officiant to do so.  As I have noted in the past, reading NYT wedding announcements will lead one to consistently notice the usage of ULC officiants. And, contra the comment in the opinion, the church does not "sell" ordinations though it has various products for a fee. You can get ordained for free.

A clergyman or minister of any religion, or by the senior leader, or any of the other leaders, of The Society for Ethical Culture in the city of New York, having its principal office in the borough of Manhattan, or by the leader of The Brooklyn Society for Ethical Culture, having its principal office in the borough of Brooklyn of the city of New York, or of the Westchester Ethical Society, having its principal office in Westchester county, or of the Ethical Culture Society of Long Island, having its principal office in Nassau county, or of the Riverdale-Yonkers Ethical Society having its principal office in Bronx county, or by the leader of any other Ethical Culture Society affiliated with the American Ethical Union.

This is from the NYC city's clerk office and NYC does accept ULC Church credentials to register as a wedding officiant. I myself obtained this a few years back.  As covered in the past, a handful of lower court rulings in NY read "clergyman or minister" more narrowly.  I would note that singling out certain ethical culture societies like this does appear problematic.  Looking at the state domestic legislation in more detail provides this caveat:

provided that no clergyman or minister as defined in section two of the religious corporations law, or Society for Ethical Culture leader shall be required to solemnize any marriage when acting in his or her capacity under this subdivision.

So, don't worry, you won't be forced to solemnize same sex weddings or those that involve someone divorced.  Anyway, the original provision sounds open-ended, but moving down on the state page, you see this:

The term “clergyman” or “minister” when used in this article, shall include those defined in section two of the religious corporations.

Such is the wrinkle and a court covering 3/5 of NYC held that it did not apply to ULC Church.  Years later, a different mid-level appeals court held differently.  I am not aware of any judgment in the other two, including the one that covers the other 2/5 (Bronx and Manhattan) of NYC. As noted in this recent article, having a non-traditional officiant, including a friend and loved one, is quite popular these days. And, I think it is a basic liberty with general First Amendment overtones to have a broad right to choose here. The ULC Church has been subject to various litigation over the years,including competing decisions nation-wide on if they are "churchy" enough to count for this purpose.  Only a handful of cases arose in NY, but it would be useful to settle this thing.

The ULC Church or some analogue at times seems like something of a joke. The first link discusses how I would argue that it is a specific religion with certain basic doctrines. Basically, it rests on individual conscience though is not an "anything goes" sort of thing. Hurting others would not seem to be appropriate. You don't necessarily have to join a specific religion to be guided by such principles and many for instance believe in God or Jesus Christ without belonging to a specific denomination. Does this make them any less a believer?  Joining a specific group has value to people though, including a sort of messaging function.

The ULC Church started years ago and the presidency passed to the wife and then son of the founder.  Looking at one link, "what's new" referenced 2005 though found a NPR piece five years later. Amy Long, ULC Seminary President used to have periodic YouTube videos where she talked about various topics.  But, the last one I see is from a year ago.  There is a "ULC" website with up to date content (see, e.g., an April 2016 blog) but is it the "official" one connected to the founder's church?  Well, bluntly, who cares really?  It seems to violate the spirit of universalism to worry too much about the "right" church here.  The whole point here is individual conscience, not worrying about the credentials of some specific minister or branch.  The whole thing is a bit convoluted.

Who is who here seems important largely to see who would get the profits for various wedding materials and other stuff you can buy.  The purity of whomever is running "ULC" when ministers become so by submitting their names is of limited importance. There is of course some basic concern about who is involved and if they are miscreants, they shouldn't be supported.  But, when someone wants to get married by a "ULC" minister, all of that doesn't really matter.  They are basically saying that they want to solemnize the occasion by means of an ordinary person who expresses individual moral beliefs.  "ULC" is a sort of shorthand means to do this, familiar since so many did so in the past.  That's fine.

The main concern, I guess, is like when being a member of the "press" gives someone certain special privileges.  So, New York and certain other states allowed "ministers" to solemnize weddings, but wanted that to have a bit of cachet, so to speak.  But, as I noted in the past, trying to draw a line there among certain religions has 1A problems, including establishment concerns about choosing those with a certain type of clergy.  If you want officiants to have a bit of knowledge about marriage law or take some sort of oath or affirmation, fine. If a small group of people think such and such a person is blessed by God is not exactly saying much about their bona fides though.  Some sort of minimum membership seems off too.  Is truth a matter of numbers?  Best to allow marriages to be "exercised" broadly.

The same basic thing would be true regarding other acts of "ministers" here including let's say have a ULC minister serve as counselor in prison or at a hospital.  Money used merely for such duties should also be tax exempt.  OTOH, some open-ended thing like saying your bakery business is in honor of God or something should not be enough.  Any exemption that is appropriate can be done via some sort of "conscience" rule and ULC Church ministers should count as much as anything else.  So, that shouldn't be an issue. Again, I think "ULC" just amounts to a shorthand that can be present without going through some online exercise and getting paperwork from some third party.  But, whatever works for you.

I don't go around telling people I'm "Rev. Joe" of the Universal Life Church or anything. I was raised as a Roman Catholic though my mom eventually was turned off by them and chose another Christian church. I respect Catholicism on certain matters but find their beliefs on a range of things not only absurd but at times simply harmful.  Many Catholics go their own way on such issues (including abortion), relying on their own conscience. They can still call themselves "Catholic" though such cafeteria personal choice decision-making sounds pretty Protestant to me.

Seems kinda ULC-like. Oh well. Choose the path the works for you, just try to be good and make the world a little better for you being there. That's not always that easy, believe me.

Couple Things

"Authors challenge Google’s book copying project." Might be an issue around the edges, but overall is a sign of how obscenely broad copyright claims are, violating First Amendment principles. "Shouldn't Criminal Defense Lawyers Prepare Clients for Prison?" I'd say yes, but see comments that see this somehow a problem. smh. BTW, lots of unbalanced bowl results.

Scott v. Sandford

The first Democratic debate is tonight in the midst of a possibly clinching Dodgers/Mets game while last night's game was in the midst of the second segment of the C-SPAN Landmark Cases. This is less important since not only am again pretty familiar with this case (reading more than one book on it etc.), but once it is on, we can view it online along with a bunch of other stuff. The same for the last segment.  There are not only extras but other C-SPAN segments including a lecture by Breyer (saying "Taney" wrong) and a talk by a descendant of the losing parties. 

I only watched the first part of the episode but there was an excellent segment at the historical site where the Scotts once served as slaves to a military doctor that in an effect started it all (he died and his took over but then her brother is the "Sandford" of the case).  I did listen to a talk (looks to be one of the additional video) by a historian who wrote a book on Harriet Scott that helped provide a personal look at not Roger Taney, but the actual ordinary slaves involved.  But, such a personal look at the lives of the people was not covered much in most of the accounts I have read.  And, what of the other side?  A traveling military doctor, a woman that ultimately married a Republican politician and her brother who ultimately wound up in an asylum are prime material historical fiction.  This stuff, along with the issues, is why these cases are such good fodder.

This case is infamous, the "self-inflicted wound."  It should be noted that Congress and others wanted the question of slavery in territories settled by the Supreme Court.  Congress provided an accelerated process of review if some case arose in land obtained out of the Mexican War.  It might not have thought the question would arise as it did, but "whatever the courts say" was repeatedly said as a sort of dodge.  The new President was glad they settled the question and the Democratic Party as a whole was too.  The problem was more the reach there -- wait ... you are saying that even the Douglas popular sovereignty approach, where territories have the power to decide for themselves if slavery is legal is constitutional? A bit much.  It split the party in the end.

The portion of the opinion that struck down the Missouri Compromise could still be a problem even if people wanted them to decide the question. Be careful what you wish for.  It also is an example of a court reaching farther than necessary and doing so using a theory that some accept but was but one of various beliefs held.  This is why it's useful to rule more narrowly, find a ground that is a sort of least common denominator. After all, even not every person in the majority agreed with the reach of Taney's comments on congressional power over the territories.

But, the bad taste that the opinion leaves is more a result of the main opinion (joined by only three justices though on this point others either joined the sentiment or didn't challenge it) saying blacks don't have any rights government need respect under the federal Constitution.  This went beyond even the immediate question since all blacks weren't slaves or even the immediate children or grandchildren of slaves.  The basic problem here is shown by Missouri practice alone -- if blacks had no rights, how could they go to court at all for freedom suits?  Once you have a right to go to state court, diversity jurisdiction (the source of this case) seems apparent. This is so even if, as many courts at time did so hold, blacks did not have rights under the Privileges and Immunities Clause, except perhaps in a few cases (such as in Massachusetts, where blacks had full rights).

To be clear, the problem is not that slavery itself was upheld. The dissents do provide a means to show how the parties here could have won their freedom suits personally.  The case probably was debatable given the law at the time regarding what happens when you take a slave into free territory and then take them back to slave states. The matter of the Missouri Compromise, especially as applied to the federal territory they traveled to, added a special complication. No, the problem was the reach of the language. Blacks (or even slaves -- cited as "persons") having no rights is not required by the Constitution.  In fact, quite the opposite.

A final issue here is again the problem of misguided judicial activism. One target here is the due process component of the opinion, one that actually is minor and a bit confused. The opinion is a lot more concerned with the reach of the Territory Clause and blacks not having rights under the Privileges and Immunities Clause (and one such privilege will be access to diversity jurisdiction -- there is a limited approach there and corporations having only the latter showed it).  But, the opinion did add that people have a right to bring a slave into the territory without seizure improperly applied.  Slaves are "property" and cannot be deprived without due process.

Meanwhile, some radicals on the other side were saying the "liberty" of the black "persons" could not be deprived in federal territories. This shows that we shouldn't throw the baby out with the bathwater here.  The opinion held that allegedly the Constitution cites no power to Congress to invade the rights of slaveholders. The rejoinder being the Territory Clause does and property for that matter is regulated in numerous ways, particularly certain types like shown by gambling laws or slavery codes. The basic germ of an idea of a packet of rights that people have a substantive right to is not wrong.  The opinion handled the question wrongly but such will happen, at times horribly so.  But, the due process gotcha is lame at some point.

The case is interesting for the people involved, as an expression of big questions of the day and as a matter of judicial parties at work. I will end on that point and it is also nicely touched upon in the episode. We even see a copy of the Scotts handwritten petition with their mark ("X") for freedom. And, that was a common thing in slave states, over three hundred freedom suits on record by the number cited in Missouri alone.  Taney's opinion is at times cited to show how originalism is a bad approach but then we got here because the Missouri Supreme Court altered long policy and no longer recognized the rule that residence in free territory even once you come back to Missouri will make you forever free. Why? Changing times warranted a new rule given those darn Northerners were abusing the comity applied.  Was that "living constitutionalism" approach tainted too now? 

No, the devil is in the details. Same here and there are so many, making it a quite fascinating and educational case to continual to examine. Oh, I'll toss in one more thing. Justice Breyer in his talk naturally focused on Justice Curtis' dissent as a well written rejoinder to the plurality opinion recognized as the opinion of the court.  And, though Curtis turned out to be a pretty conservative sort that denounced the Emancipation Proclamation and so forth, it was.  This is perhaps particularly so because it was not a grand proclamation of rights of blacks -- it put forth a limited view on citizen's rights in fact.  But, we should also honor Justice McLean's dissent too, as I noted on this page ten years back. 

Landmark Cases Series

[The author of a companion book to the series is interviewed here. Early on, a couple of the taped segments of the first episode were showed, and it was a good touch.  Problem is most of it involved the talking heads. Another thing is that the author notes one good thing about the shows is that we get a look at the people involved.  We do learn a bit about the characters but very little on nominal parties here.]

C-SPAN, in honor of the first Monday in October (official start of the USSC term), has begun a Landmark Cases series with the first one Marbury v. Madison on this week. The first episode was largely a talking heads segment with an author of a book on the case (which I have recently read) and Prof. Akhil Amar, a popular voice on television on constitutional matters. A few "C-SPAN on the road" type segments from the homes of CJ Marshall and so forth are intermixed along with a bit of a few statements from justices and apparently other parties (here a member of Congress). And, some calls are taken.

Those who are new to the case might have found it novel but basically nothing new was introduced for me personally. Letters from Jefferson and Adams, for instance, provide an intimate flavor but I'm familiar with them -- including Jefferson telling Abigail Adams that he thought the midnight judges was personally particularly hurtful. Reading the author's book and being familiar with Prof. Amar's style (looking at things in a somewhat novel way that he sort of portrays as kind of obvious ... why didn't others see it this way? ... in an "isn't this fascinating/exciting" nerd love sort of fashion) didn't help. Compare this to a 1970s PBS mini-teleplay where the events were re-enacted quite well. Or, another where the ratification of the Constitution became a televised political campaign. Again, I have the disadvantage of being more familiar with most of these cases (after all, I wrote papers about two of them!) than many others. Still, sort of disappointed.

Agree with Prof. Amar that the case was not quite as seminal as some suggest. The importance of the case was an official statement of something that was already in the air -- judicial review, including in the federal courts up to congressional action -- was already repeatedly cited and in some fashion even applied. A federal carriage tax was challenged by some Jeffersonians (along with the Alien-Sedition Acts opposition, I wonder about the evenhanded opposition the critics their had as to striking down the law -- did they accept even the latter could only be overturned by legislative action or perhaps jury nullification?). It was upheld by the USSC, but there was no suggestion of legislative supremacy. In the right case, judicial review might strike down federal law, just as it did in a few state cases. A few justices also refused to serve as pension hearing officers in a judicial capacity since they found it unconstitutional to be liable to be overturned by an executive officer. An attempt by Washington to get in effect an advisory opinion was also rejected, if unofficially.

Judicially striking down a congressional law might have upset "high" Jeffersonians, though by the 1820s even they were accepting, but the main problem in this case was the belief that this was in effect a political question. The President had the power to not deliver commissions pursuant to his discretion. The determination Jefferson did something wrong rankled for the rest of his life, even if the net result of the opinion was that the Supreme Court found that it could not offer relief. Some find problems with various aspects of the holding; one thing that seemed the case for me is that the Judiciary Act of 1789 provision need not be found unconstitutional. The wording is somewhat opaque but it seems to me that it could have simply been interpreted not to have applied in this situation. In effect, like Chief Justice John Roberts centuries later in the PPACA Case, a bit of constitutional avoidance would have been quite possible.

But, the genius of the guy has been long deemed to be his strategic use of the Supreme Court to promote a certain judicial vision. Merely applying the law, granting my reading is possible, would not be as useful as making clear the Court had the power of judicial review, even if it requires striking down a provision passed by the First Congress, one with various signers of the Constitution in it (including James Madison), signed into law by George Washington, who presided over those proceedings of the Constitutional Convention. It also allowed as was noted in the episode in effect the top Federalist remaining, now that Adams lost the election, the most popular one at least -- John Marshall, to shake a finger at the Jefferson Administration with only a mild shaking of the head at the challengers. They (there being four, even if three are mostly forgotten) didn't even misapply the provision in question not meant to apply to this situation; it was simply unconstitutional. The power to strike down a federal law not applied apparently (I have saw reference to one or two maybes involving technical issues) again until the 1850s, but it was there for the taking.

Prof. Amar noted that the opinion pointed to the importance of the Constitution for all government actors, not just the judiciary. A notable point even though the author was right to note the importance of the courts was specifically the point here. Note, for instance, that not striking down a federal law (or perhaps only doing so in a blatant case, much clearer than many of the times these days) does not make courts potted plants. Putting aside that statutory interpretation and oversight of local action is a big part of their duties, federal courts still would have the responsibility to protect persons from wrongdoing of executive officials. For instance, when a person was charged with a crime, they would have various rights that would rarely be interfered with by explicit congressional laws (an ex post facto law would be a situation where the courts would directly run into Congress). The Bill of Rights is largely open-ended, but executive action was probably assumed (outside of the First and Second Amendments) to be the biggest concern there.

The basic idea of judicial review was expressed in Federalist No. 78 and accepted as a logical application of constitutional text by a range of people by the time of the ruling. There was some dissent, but again, the holding that judicial review exists was not as revolutionary as sometimes implied. Opinions do however serve as markers and forthrightly hold things that often are only expressed in a more limited fashion. Griswold v. Connecticut is an example. The "right to privacy" was not totally newly applied in the mid-1960s in a 7-2 holding. Various other opinions spoke of a "right to privacy" in various respects, the right both a matter of state law (privacy torts) and constitutional law in various respects, particularly in the Fourth Amendment context. And, various opinions spoke of specific things now deemed as private that were protected "liberty" including family matters over children. These were useful later on.

But, such a clear expression of a right to privacy, particularly to protect private choices over not just spaces but actions in those spaces in this fashion and to do so as an opinion of the Court was special. And, something comparable is in place with the opinion at issue here though as Prof. Amar. noted the power of the courts to use it become much more important later on. Ditto the assurance of the courts to act, even when internal executive department matters are involved. In fact, Marshall himself would in a few years have an opportunity there while presiding over the treason trial of Burr and his alleged conspirators. This aspect of "judicial review," usually applied to examining the constitutionality of laws as such, was very important too. A trial where presidential clerks and even the Attorney General was involved showed the power of the judiciary as did the treason trial where interrogatories to Jefferson himself was involved.

So, the case was important, both for the national drama involved, but as to the particulars. It was not completely novel, since judicial review was "in the air" and even applied in a few cases, but the Supreme Court actively using the power in this fashion was of special significance. More so as judicial review was widely accepted, even by past critics, the debate now more over details. There still would be great debates over political questions and proper usage. The USSC, however, in a major way won the ultimate battle early on back in 1803.

But, it wasn't and still isn't all crystal clear, and this series should help inform the public at large to understand and further debate matters. Perhaps, later episodes will seem a bit more novel for me personally though.

"The Myth of Magna Carta"

The Magna Charta article cited is the start of the 800th (or 790) anniversary coverage over at Concurring Opinions Blog. 

The "great charter" was renounced shortly after it was signed but in time was seen as a seminal moment of English (and American) liberties.  Edward Coke (who in an originalist sort of way and otherwise is something of a patron saint of judicial review) apparently did some law office history before it was cool.  Coke was a 17th Century jurist who claimed a special role to even hold a law passed by Parliament void, judges have a special role to applied the "artificial reason" of the law. And, the obligation to respect their judgment goes up to the king, who at the time wasn't so gung ho about the outer limits of such logic.  

His writings and rulings were seeds for the future. By the time of the American Revolution, the great British jurist William Blackstone spoke of parliamentary supremacy, but the colonists were not quite so sure.  Just what this would be in respect to judicial review by the time of the Constitution still remained somewhat unclear, but Coke was at times appealed as precedent. Just how valid and strong such appeals were is still debated.  Single opinions rarely tell us much in a vacuum. It is what they tell us in context and over time that generally matters the most. 

The Magna Charta appears to have a kernel of an idea of the limits of executive power and the rule of law, even if how it was applied in the times of Robin Hood the Merry Men (about as fictional as how the Magna Charta was remembered) it was very different. The British article cited above flags how the Magna Charta, including the key "law of the land" article, is misunderstood.  I think this can go a bit too far. The key clause:

No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.

This was a basic rule that didn't have the power of judicial review to back it up, juries were in their infancy (more grand juries to collect facts) and "the law" was more a matter of accepted traditions than written statutes. And, the basic way to enforce it was what occurred then -- a civil war where you use the force of arms to get relief.  Also, as noted in the article, the idea that English kings swore to follow the law was not invented in 1215.  Still, the core idea -- with much detail and institutions added -- is very important.  The importance of the Magna Charta, mostly forgotten feudal rules, might be a sort of "invented tradition," but that's nothing new.

This could in some fashion be kept in mind when it is applied in a much later context, but it's important to keep in mind the changes. This should be kept in mind when applying history in the same sex marriage cases.  I wonder how future generations will understand our own times, including a new constitutional amendments. Consider, e.g, GRANHOLM v. HEALD involving the 21A. Justice Stevens, who remembered the times when it was ratified, dissented and had a different view of the "original understanding" than the majority.  Justices Scalia and Thomas also were on opposite sides. 

"Myth" is sometimes demeaned as merely fictional, but there's more:

a traditional or legendary story, usually concerning some being or hero or event, with or without a determinable basis of fact or a natural explanation, especially one that is concerned with deities or demigods and explains some practice, rite, or phenomenon of nature.

Like fiction generally, there is often a core truth. [post expanded]