Liberal Blog Upset Readers Tired of Their Tiresome Biden Coverage

Lawyers, Drugs, & Money is a blog I have read and written comments for since the Obama Administration. It leans liberal. 

Erik Loomis, a historian, has regular posts about labor history and graves he visited with mini-biographies. He also talks about other things, at times talking a bit like an asshole. He had a recent blog about Japanese convenience stores where his old man shaking his fist at cloud came out.

Scott talks about law and politics. Robert Farley, an original, speaks about foreign policy from time to time. The one regular woman contributor is Cheryl Roper. She is the only one (except for someone who rarely posts) not joining in with the "we are doomed, Biden must go" drumbeat.

There is also Paul Campos. He's a law professor but he usually doesn't talk about law, except to make some extreme knee-jerk comments (like comparing Lawrence v. Texas with Bush v. Gore as both being all about values, nothing about law). He replaced an even-headed woman who talked foreign policy. So, we now get "Sotomayor must go" stuff. 

Elizabeth Nelson (a musician) sometimes talks about music. 

The main guys went into as I said doom mood since the debate. Over and over again. At times, one or more tossed potshots at President Biden's physical and mental well-being. At least one spread unfounded rumors. People who pushed back were told they were naive fools.

Erik Loomis already had a "what?" post. Loomis sometimes "bluntly tells the truth" in comments by grumpily calling out people as fools and such. Team members preaching about tone is a bit much. 

Now, we get another from Farley. It seems the critics are the problem. We don't like hard truths. We are being too mean. And more tiresome stuff. It has a feel of someone aggrieved like a certain law professor who was upset when protestors strongly opposed him on Gaza. Me? I'm the good guy!

You covered the ground. You talked about it. It has been weeks now. Let it go. It's your blog. This is my space. I try not to be stupid about things even if I have every right to be so. And, almost literally no one reads me. You actually have a broad following, shown by the replies to the posts alone. 

This year didn't start off that great in my view and darn if it is not going that well mid-way in. When will the Mets go into a slump?

Teamster President Speaks

Meanwhile, we have the Republican Convention, and James David Vance as the vice presidential candidate. A young mini-Trump with a beard. 

The Teamsters president spoke and is scheduled for the Democrats too. Some LGM commenter was glad, noting it was just union red meat, and nothing about Republicans. Not quite. As I replied there ...

"President Trump had the backbone ... no one else would" invite him. He's "one tough SOB." A bit of pandering. To be expected. You speak to your audience at least a little bit.

He talked about Republicans, including how their union endorsed Republicans in the past, and how some Republicans worked with them. He praised Josh Hawley, for instance, repeatedly.

He also praised JD Vance, Roger Marshall (one of the few senators who voted to challenge the electors in 2021), and other Republicans. These Republicans "truly care about working people."

I understand him speaking to both sides. That is what lobbyists should do -- try to get support from both parties. A lot of what he says is great. OTOH, Republicans will assure us that they overall support that sort of thing too.

Him speaking at the convention is a good talking point to the workers who support Trump/Vance. The backers know what the guy stands for. 

Vance speaks -- like him -- against "elites," which the people there code as Biden and the Deep State.

They want "change." So, a Trump presidency, the true populist! The deep pockets will understand. They know you have to give something to the little people.

== 

Some of the delegates might have been a bit surprised at the message but they seemed to be fine with it overall. Again, it's fine he was there. His job really.

Update: I thought he went too far supporting Hawley (he was name-checked multiple times) and now he went for him again, even when his position has offensive stuff. The union seems to be at best dubious about his strategy. Ultimately, it's their call.

SCOTUS Watch: Order List

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

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

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

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

SCOTUS Watch: Ethics and Opinions (Part I)

Alito and Ethics Reform

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

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

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

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

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

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

Abortion Pills

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

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

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

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

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

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

Labor Dispute 

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

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

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

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

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

"Trump Too Small" Trademark

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

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

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

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

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

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

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

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

==

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

Some Early May Holidays

The beginning of May is just filled with holidays.

Just what is May 1st? Is it a spring festival (May Day) or in honor of labor (one Bluesky reminds us "labor" only involves workers we like, not people like people or those strike breaker non-armed security guards sitting at your local library). Let me add here that when cynical Erik Loomis thinks there has been good labor news, with the help of President Biden, it's notable. 

Or, perhaps it is Loyalty Day? Apparently, this honoring of U.S. values was started in the days of Eisenhower to combat the workers' celebration. Talk about un-American activities!  

The Congress, by Public Law 100-307, as amended, has called on the President to issue each year a proclamation designating the first Thursday in May as a “National Day of Prayer.”

Ike also made sure to talk about "under God" in our Pledge of Allegiance, since god is clearly on the side of America, unlike those godless commies. Congress made sure to establish religion in other ways, including having presidents announce a national day of prayer (for some reason, addressed to "citizens"). We spoke about this before, including citing Baptists for religious liberty (they are originalists) against the practice. 

[ETA: A closer reading shows that President Biden calls citizens to give thanks while "all people of faith" are called to ask God for guidance. It is more inclusive than I first thought but still curiously split into factions.]  

The most well-known early May holiday is in the spirit of the Fourth of July in that it involves rebelling against Europeans and not having much creativity name-wise. I speak of Cinco de Mayo, which these days seems mostly to be a day for Mexicans to party or people to celebrate in a Mexican fashion. Like our 4th of July, it honored independence before it actually truly occurred.  The French lost a battle but stuck around for a few more years.  

Don't forget ... Mother's Day is the third Sunday of the month. The month then ends with Memorial Day, which honors the semi-official start of summer. Well, also, people who have died in wars. 

May is also Mental Health Awareness Month. Let's read about mental health symbols!

SCOTUS Watch: Opinions and Stuff

Justice Thomas, without explanation, missed Monday's oral arguments. He was back on Tuesday, which involved not only him announcing an opinion, but also a 1/6 related case. A case, given his wife's involvement, he probably should have recused from. A past case of unexplained absence is unclear. He will take part in the cases he missed.

Trans Case

I will allow Chris Geidner (various bits put together) to explain:

On Monday, the U.S. Supreme Court — over the dissent of the liberal justices — allowed Idaho to enforce its ban on gender-affirming care for minors for the first time against anyone other than the two transgender minors challenging the law. 

Under the court’s order, the law remains blocked as to those two minors. This was a ruling about the scope of the relief issued by the district court in the Idaho case — a statewide injunction of the entire law — in light of the plaintiffs in the case

Also Amy Howe: 

But here, the challengers emphasized, the district court concluded that the Idaho law should be temporarily blocked in its entirety to make sure that the challengers can continue to receive care. Otherwise, they said, the two teenagers – who are proceeding anonymously – will have to reveal their identities whenever they seek care.

Gorsuch (with Thomas and Alito) concurred with a special focus on criticism of universal injunctions. The alleged "spot-on" nature of this concern generally is less clear here. This is not a typical national injunction that causes concerns. As Jackson (with Sotomayor) notes in dissent, it's a fact-based dispute if this specific one is warranted. 

Kagan would have denied the stay of the district court ruling but did not otherwise have anything to stay. Roberts was totally silent so technically could have not been involved at all. Kavanaugh with Barrett concurred and discussed what should be weighed in cases when the Court is asked to step in. He also referenced the concern about universal injunctions. But, had more on the merits. 

I find the choice of means to address this issue, in a fractured way (3-2 or 3-2-1), in a trans case with these facts dubious. Other children in need of protection can potentially bring a case separately. The case has limited procedural effect. CG was generally moderate in his tone. Still, it rubbed me the wrong way.  More shadow/emergency docket monkey business.

Anyway, we continue to wait for a substantive decision from the Court on various pending major trans cases.  Nonetheless, the practical effect here will harm Idaho trans children in need of treatment. 

Opinions 

[Tuesday]

Jackson had an opinion upholding employment benefits for service members as applied to two provisions. Kavanaugh (with Barrett) concurred to flag his concern for a "veteran canon" which puts a thumb on the scales for veterans. Notes it has equal protection issues. Thomas (with Alito) dissented. 

Thomas had his first opinion of the term. It was another short opinion (a little over six pages with two photos) avoiding a broader result. "It would be imprudent to decide that question without satisfying ourselves of the premise that there is no cause of action."  The Takings Clause claim could be raised in the state court.  Another narrow ruling. 

[Wednesday] 

Kagan with a unanimous opinion (Thomas, Alito, and Kavanaugh wrote separate opinions concurring in judgment) held that an "employee must show some harm from a forced transfer to prevail in a Title VII suit, she need not show that the injury." Involved a sex discrimination claim.*

Steve Vladeck flagged on Twitter that Kagan has yet to be in dissent this term in fully argued opinions. Alito has also not written an opinion of the Court. Both held today.

Sotomayor with a unanimous opinion (13 pages) concerning federal criminal procedure rules involving forfeiture procedures. The employment opinion was flagged as a good one. This one is not likely to get much attention.

We now have eighteen opinions. I gather this is not even a third of the total number. And, it is mid-April. 

Most of the cases -- the Trump insurrection case is a major exception -- have been limited. There are many hot-button cases this term. Maybe Alito will write for one. 

---

ETA: Professor Murray on Twitter flagged Kagan's opinion (noticeably rejected by three conservatives) as a way to avoid the use of racial discrimination claims as a means to attack diversity programs. 

Her "some" harm rule might help there because employment actions to further diversity would not truly be "harm" even if it meant a change of employee duties. 

We will see how the lower courts handle this. See also, this article on the matter. This shows the many complications of rulings, including specific aspects that might not cause difficulty at that time. Different facts can result in a more divisive ruling. The nuances of the ruling are the rub. 

Leftover In China

I first learned about "leftover women" from Leta Hong Fincher. She wrote a book (tenth-anniversary reprint out recently) about them. She also wrote Betraying Big Brother: The Feminist Reawakening In China. I also went to a panel that she moderated.

My "about the author" summary gives a taste of her background:

Leta Hong Fincher is a journalist (she won the Society of Professional Journalists Sigma Delta Chi award for her China reporting), writer, and Seminar Associate at the Weatherhead East Asian Institute at Columbia University.  

She is fluent in Mandarin.  Her parents were Chinese scholars, and she spent much of her childhood traveling to China.  

Fincher was the first American to receive a Ph.D. from Tsinghua University’s Department of Sociology in Beijing.  She also worked at Radio Free Asia, Asia Television (1997–1998), CNBC Asia (1998–1999), and Voice of America.

Dr. Fincher is an academic. Her writings also have a certain muckraking feel to them. For instance, she wrote about the "Feminist Five," five Chinese activists who were willing to be arrested to protect gender inequality. She also argues that the current leadership in China is anti-feminist, arguing it advances their authoritarian style of rule.  

Looking for something else, I found Leftover In China: The Women Shaping The World's Next Superpower by Roseann Lake. The book was published in 2018, a few years after Leftover Women. It covers some of the same ground though takes a more "Sex in the City" type approach. Mixed in with a lot of informative material (including a chapter covering other Asian nations), we get the dating life of four women in particular.

One review compares:

Lake’s anecdotal approach contrasts with the more political work of Leta Hong Fincher, who has argued that the rhetoric surrounding leftover women is the result of a deliberate government campaign. 

Roseann Lake (going by her photo) is a white journalist, who spent five years in China. She later shifted to Cuba. I think the book is well-written and provides a helpful analysis of the material. Also, the book covers different materials in certain respects than the other book. Multiple books that overlap are useful. Different perspectives help.  

I was surprised that Lake did not cite at all Fincher's work. It is not that she was not aware of it.  She engaged with her years before publication. And, Fincher had done a lot of research on the matter. Lake's book references the feminist five in passing.  That book came later.  

So Hong Fincher was surprised to find that a major new book, Leftover in China: The Women Shaping the World’s Next Superpower (W. W. Norton & Company), doesn’t acknowledge her at all in its extensive bibliography. And it’s more than a matter of ego: Hong Fincher says the book’s author, Roseann Lake, a journalist who now writes about Cuba for The Economist, has been following her work since 2011.

The bibliography is two pages long. There are no endnotes. So, I don't know about "extensive." Nonetheless, I can understand why she is open about being "very angry" that a book that perhaps would receive more attention than her academic work did not reference her work. Academic works are extremely important though get a lot less love.

Roseann Lake's response is not very convincing:

When Leta’s book was released, I decided not to read it because I was working on the manuscript for my own book, and I chose to stay focused on the stories of the women whose lives I feature in it.

This is a non-answer to the concern that her scholarship was not cited. Likewise, the book was not just about "the stories of the women." The book also provided an analysis of the "leftover women" (women not married) situation. She read other stuff to help understand the situation. It seems like she also read work by Leta Hong Fincher. It was wrong not to cite it. 

I cannot without more determine what was going through Roseann Lake's mind or how much it was "calculated erasure." 

I will state that it is important not only to take advantage of the best research. It is also important to give credit where credit is due. I know that my own research, not comparable to people who are professionals, takes time. I am annoyed at people who cannot deign to do a bit to find things out or respect my efforts.

I do recommend Leftover In China. 

Note: One critical review notes "It’s too at odds with her story, which has so firmly cast her subjects as victims and not agents." 

I don't agree. The women to me repeatedly seem to be in control of their lives. They are partially victims. China is still sexist in various respects. But, the book shows the system has positive aspects too. 

Lake, for instance, notes an (unintended) result of China's one-child policy is that daughters were given a lot more attention.

===

Tom Wilkinson has died. 

I have seen many films with this British actor. He has great range, able to play an elite noble judge in Belle (mixing truth with fiction regarding the interracial woman involved) and Americans like Ben Franklin (John Adams miniseries) and James Baker (in an HBO look at the 2000 recount).   

RIP.

SCOTUS Watch: Order Day (Last of Year)

Case Grant

A grant was dropped on Friday:

Issue: Whether the 60-day deadline in 5 U.S.C. § 7703(b)(1)(A) for a federal employee to petition the U.S. Court of Appeals for the Federal Circuit to review a final decision of the Merit Systems Protection Board is jurisdictional.

The issue sounds technical but was "relisted" which suggests some notable interest. Of course, we don't know why it was relisted for multiple conferences. The word "jurisdictional" means that the deadline would block a judge from taking a case after the deadline. It is fixed by law. 

Sometimes, for instance, judges have the discretion to do something. A judge might find that a normal deadline could be waived for equitable reasons. Nonetheless, though the details suggest the lack of a hearing is unfair, the argument is that the judges as a matter of law had no discretion. This might be bad in an individual case but the system as a whole is a good policy. At least, Congress has the power to think so.  

A separate due process argument is possible but is not at issue. 

Order List 

We also have the last scheduled Order List of 2023. 

The US Supreme Court tossed competing appellate rulings on an executive order President Joe Biden has since revoked that required all federal employees to be vaccinated against COVID-19. Jackson added statements referencing her views on vacatur (see first opinion of the term).

The notable news in today's final scheduled order list is that three justices want to take a case concerning bans on conversion therapy. Kavanaugh simply said he wanted to take the case. Thomas had an extended dissent, including making it a grave free speech issue. Alito had a more limited dissent that addressed the particulars much less.  

[As usual, Chris Geidner helpfully discusses this case and notes that the claimed circuit split -- a basic reason why the Supreme Court grants cases for full argument -- is disputed]

Alito also added a dissent to a rejection of Robert Kennedy's motion to intervene in a case accusing the Biden administration of violating the First Amendment when communicating with social media companies about content moderation. 

Quoting Alito:

This case concerns what two lower courts found to be a “coordinated campaign” by high-level federal officials to suppress the expression of disfavored views on social media platforms that now serve as the primary source of news about important public issues for many Americans. us.

He already has expressed his view that this was some very concerning threat to free speech when it is much ado about nothing. He was joined there by Thomas and Gorsuch. He speaks alone here. 

==

Justice O'Connor 

Okay. So, this is the final scheduled scheduled order list of the term. There has been a policy of granting cert. (full argument) for other cases in a separate order some time mid-December. Next Monday, O'Connor will lie in repose (the public can give their respects) and a private funeral will occur on Tuesday. 

I expect further orders this year.  

First Monday In October (Not the Film)

After the NY Jets cruelly gave fans hope only to have their QB make a mistake and have KC not give the ball back again, icing the game, we have the beginning of the new Supreme Court term.

==

ETA: Regarding the last term, all of the opinions have been assigned a volume, with a preliminary version posted on the website. 

First is a long clean-up Order List. The biggest news might be that Clarence Thomas, for the first time in a 1/6 related case, recused himself. It involved pal John Eastman (also close to his wife, it seems) and maybe you would think that would factor in as does the fact Ginny Thomas also was questioned by the 1/6 Committee. But, Fix the Court notes that he didn't recuse in the past in cases involving the committee.

Thomas not explaining why he did not take part is not unique. Kagan in recent months a few times (two or three) noted basically the category of reasons she checked off when recusing. No other justice explained their decision. Alito (as a few did in recent decades) noted why he did not recuse. This is not a great policy.  

(The Supreme Court also didn't drop a press release or media advisory noting that they went back to live audio during oral arguments. It would be a simple act of clarity and openness to do so. It only noted it on the calendar, which is a more hidden location.)

Thomas did take part in the decision not to preliminary intervene in a 14A, sec. 3 case. Many think there is an appearance of impropriety to him taking part in any 2020 election dispute, especially involving the insurrection, after it came out that Ginni Thomas was a strong election denier. 

===

The first oral argument was a statutory case that came off as a somewhat absurd law office hypothetical. Barrett dropped the term "Calvinball." But, we should not forget that the case ultimately involves the reach of a criminal justice provision that is of some importance.   

===

Meanwhile: The soon-to-be new senator from California sounds like a promising choice, checking boxes like forty-something, black woman, labor advocate, women's candidate supporter (EMILY's List), lesbian, and more.  

Strict Scrutiny Podcast dropped the news that the mother involved in a tragic atypical case involving a truly late-term abortion was sentenced to two years in prison for her crimes. 

I think that is probably too much, but a summary about some woman who gave abortion pills to her teenage daughter and flagging it as the danger of post-Dobbs is rather misleading.  The facts here could be (and should be) deemed illegal under Roe v. Wade and is not a run-of-the-mill case. 

I agree with President Biden's statement on the budget. 

Baseball Update

The baseball season is about over. But, don't worry if you think you will have Mets withdrawal (a suspended game on Friday night -- though the Cubs keep on losing, so maybe not -- require a Monday cameo appearance). Or, baseball withdrawal after October baseball. The strike is over. So, there will be more television content.

I wanted to replace my Friday post since there have been new developments. The Marlins won, ending the Padres' very slim remaining hopes. The Mariners decided to find a way to beat Texas two times in a row. This gives them a fighting chance (still are likely to miss it by a game) for a playoff spot. Two more wins can even get them a division title and bye!

The Rays, Blue Jays, and Astros or Rangers are still the likely AL wild cards, but we will see. The Phils, Diamondbacks, and Marlins are also the likely NL wild cards. But, as with the final two AL slots, not quite. Reds and Cubs retain a bit of life at the moment, the Cubs requiring the most help. Including the Mets on Monday.

Saturday Night Update: The Mets swept a doubleheader, which appears to erase any shot at them getting a better pick by being among the bottom six in the baseball standings (Nats being a repeat player does not qualify). Daniel Murphy, who is retiring for real now [if not as a Met like Big Sexy], was on hand to throw out a first pitch. Good luck, Roger Ramjet. 

Teams, for people who care about such things, are playing for statistics like being at or over .500. More importantly, the Marlins won and the Reds lost, so the NL wild cards are in place. The question then becomes what seeding the Marlins and Diamondbacks have.  For now, this still can turn on that suspended Marlins/Mets game. The Cubs did win, after blowing a six-run lead, but needed the Marlins to lose out. 

Seattle can play spoiler: the NL West and a bye is still up for grabs. Just not for them.  They are done. Their loss helped the Blue Jays, who now are in. It first eliminated Seattle as the NL West leader. Then, the Astros won, eliminating them totally.  

The last day will determine seeding. A bye and playing the Twins over the Rays is not nothing. 

Sunday: The big news is that the new head of baseball operations decided that Buck should no longer be manager of the Mets. I think he was partially to blame for their failure to get to the promised land last year (if you praise a manager for the good stuff ...) but was not the reason this season. 

How about getting rid of the GM, who made some questionable moves that influenced their current situation (as well as last season, such as not getting a key piece to put them at the deadline over the hump like in 2015)? I'm okay with them moving on with new leadership. The players really like Buck. It would been fine to keep him too. But, not just him!

Anyway, Seattle won again -- they won 3/4 vs. Texas, but the Astros swept the Diamondbacks. In the end, Seattle being able to beat Texas (finally) merely helped the Astros win the division and first-round bye. Yippee. Marlins/Diamondbacks both lost so that last game wouldn't matter. So, the Mets will wound up completing 161 games. 

The Mets wound up 1.5 games ahead of the Angels so came in 7th in the race for the bottom six in MLB for a better draft pick. A tie would have gone to the Angels since the Mets did so well last year. Oh well. One more low pick would be nice but it's still a lot of guesswork and who knows what would have come out of it. Really comes out of the Angels doing so bad. They had the potential to do better than they did

BTW, I have for a while complained about Vogelbach still being around to take at-bats from others. I haven't actually seen him in the lineup for a while.  Small favors. D.J. Stewart, who for a while was hitting very well with DH vibes (and being able to play the field), has struggled. 

Newhart Shows and City Girl (Silent Film)

Catchy Comedy Channel (previously Decades) each weekend has a marathon (binge) of a single sitcom and at times a group (they had Blondie movies and episodes from one of the television offshoots). 

Over the weekend, it was Bob Newhart time, with the Bob Newhart Show, Newhart, and Bob. He had one more comedy with Judd Hirsch of Taxi fame but it did not have his name in it. So, guess that's why it was not included!  Newhart had sitcoms in three decades with a short-lived variety show in the 1960s too.  He popped up in guest star roles into the 21st Century and still comments a bit on Twitter today.  

I know two people who like his first show the best but Newhart is my show, especially once Stephanie and Michael (and of course LDD) are on.  (Kirk is an annoying character.)  I don't only say this because it is the one I watched when it was first aired.  The ensemble cast is very good, including his wife, who not only looks good in sweaters but often has a chance to be amusing too.  It also had an amusing sense of the absurd at times.  

His third short-lived show (two seasons) was amusing and had Lisa Kudrow in a small pre-Friends / Mad About You role (and not a blonde!).  A nebbish who works at the cartoonist's office also popped up in a guest star role in Friends when Joey did his robot t.v. show. 

TCM on Sundays (into Monday morning) often shows silent films. I recall watching one such film.  I basically watched the first half of City Girl and checked out a bit of the second half.  It's very good and quite watchable. Some old films seem slow-paced.  This one mostly seems normal speed.  

There is a lot of interesting backstory and details related to this film.  F. W. Murnau directed.  He is one of the elite directors of early cinema, including his vampire classic, Nosferatu, and Sunrise, which were among the films first honored at the Academy Awards.  Many of his films have been lost. 

A German filmmaker, Sunrise was one of his few Hollywood films along with City Girl.  He clashed with the new owners of the film studio involved, who had a different vision for the film (their version had sound and is now lost)  and left before the film was created.  He died shortly afterward in a car accident in his 40s.

City Girl's cast is also notable.  The father made lots of films before and after.  The male lead, Charles Farrell, later was in a 1950s sitcom.  The small role of the young sister was played by an actress who later took the name of a later role, Anne Shirley of Anne Of Green Gables fame.  Mary Duncan, the female lead, did not have a long film career, her last role (Morning Glory) was Kathleen Hepburn's first Academy Award (1933).  

The film involves a young son of a stern (he yells out at his young daughter for playing with a bit of the wheat crop) Minnesota farmer being sent to sell the wheat crop in the big city.  (The farm scenes were filled in Oregon.)  His good boy bona fides is shown when a tart of a woman tries to engage him on the train.  He falls in love with a city girl, a waitress, tired of the hard and dull life of the city.  She falls in love with his kindness and goodness. 

The contrast between the two places is shown at one point by a scene of the father cutting bread (Our Daily Bread was the original name of the film, suggesting the director's focus on the farm), and then the film cuts to bread being sliced by a machine at the diner. The film has excellent cinematology work, showing us farm life, the train, and a crowded diner in the city.  

Farm life is the main concern of the film, especially in the second half, which gets to be melodramatic. The mother and young daughter are welcoming of the son's wife but the stern father distrusts the outsider. The son at first seems ready to defend his wife but is scared to challenge his father.  The wife then has to handle the uncouth farmhands, especially one in particular who gives her unwanted attention.   

[The farmhands, including the boor trying to turn them against the farmer as a means to get the girl, might also seem topical given that today's Labor Day.  It is probably apt that we are in the middle of a major writer's strike.]

I was not really interested in these scenes but there are again some good stuff there.  The sight of the workers on the farm, including Kate serving them in the field (her husband sulking), is well done.  Kate eventually decides to go away, snapping her husband out of his funk.  He tells his father that he is going after her and that they will move away so they can have a happy wife.  The father realizes he was wrong and things end happily.  

It is well worth a look even if you are not the type to watch silent films. There is an instrumental soundtrack in this version and the usual title cards that keep us abreast of what is happening.  The current use of closed captioning would have been an interesting tool during the silent movie era. I wonder if they would have used the same restrained amount of scripted dialogue or if the use of CC would have allowed basically full dialogue.  

A Bit About Two Films

A classic movies channel has a Blondie feature on Saturday mornings.  The old comic strip (still going on, the character being a flapper suggests how long ago it began) became a film series during the 1940s.  Those were the days of multiple pleasant standards including the Bowery Boys and Andy Hardy.   

Blondie was of this character; two attempts at television series (one with the original Bumstead though watching a bit once he seemed more serious) were not as successful.  Penny Singleton played the title character; the character's husband was clearly the show's star. He was laid on a bit thick though then we are talking about a comic strip character.

Penny Singleton later was the mother's voice on The Jetsons, which she also played years later when a film was made (Tiffany voiced the daughter).  Her Wikipedia page (see also) highlighted as well her later work as a labor representative, including testifying in front of Congress about how "B-Girls" were exploited.  She even was accused of slander against a labor leader though the charge was eventually dropped. 

She plays a standard housewife type (being Dagwood Bumstead's wife though does require some levelheadedness and independence of mind; can't rely on that goofball too much).  The character is not as sexy as the comic strip version though Penny Singleton's background would be comparable to the "flapper" version.  I was not aware of her interesting advocacy.

Today's film was Blonde in the Dough (cookies that is) in which radio plays an important role.  Typical Bumstead clowning.  

==

Strawberry & Chocolate is a well-received Cuban film from a few decades ago about a surprising friendship between an artistic-loving gay guy and a somewhat hapless straight guy.  I could not really get into it though it seemed well-made and well-acted.  The film was somewhat controversial as a criticism of the Cuban position on GLBTQ issues and such.

A few notable scenes even in the first ten minutes or so.  Our hapless straight guy is not having too much luck with a girl. He gets a view of what he was missing by listening (and then viewing through a peephole) to a couple having sex in the next room.  A nice visual of the rather big-chested woman with a full shot as well of her hairy crotch.

(U.S. films -- even soft porn on Showtime -- are very hesitant to give us such a view.)  

There is also a sly attempt by the homosexual character to pick up the guy, including a bit about ice cream. There is also a bit involving a bit with a civilian official asking if the couple consents to marriage after being made aware of "Articles 24-28." I checked and this refers to provisions that provide a socialist-inspired bit of equality in marriage, including a responsibility of providing equal support in the marriage.  

I'm all for that to be at least part of our marriage vows.  Anyway, as I said, the movie did seem to have potential, if I was in the mood for such a thing. A very helpful thing was that the subtitles were nice and clear.  A few films have tiny subtitles [NY Daily News shrunk lately; I wrote them a letter complaining and it actually was published] and it's hard for me to see.  

SCOTUS Watch: Jackson Dissents

June is typically when there are a bunch of hot-button cases decided by the Supreme Court. The month started relatively softly with three cases, two unanimous.  Few care about either.  The third was a bit more tricky.  

Thomas: "The justices sided with whistleblowers on Thursday in a dispute over whether two pharmacy giants – SuperValu and Safeway – knowingly overcharged Medicare and Medicaid for prescription drugs."

Gorsuch: "rejected a lower-court ruling that had substantially broadened liability for publicly traded companies under Section 11 of the Securities Act of 1933."  

While the basic right to strike remains intact following the court’s decision, Glacier fits the pattern of this court: chipping away at labor rights. Sometimes the justices do it in big chunks and sometimes in smaller ones. But this case, like the others, moves in the same direction.

The third is something of a 5-3-1 "anti-union" opinion with the controlling opinion making it harder for unions, but how much is unclear.  Barrett has the main opinion with Thomas/Alito being joined by Gorsuch willing to go further. All don't write much. Jackson, in her first dissent in a case receiving a full review, wrote an opinion longer than them all together.  

“Workers are not indentured servants,” she wrote, “bound to continue laboring until any planned work stoppage would be as painless as possible for their master.”

Jackson's dissent is strong, starting with a bedrock statement: "The right to strike is fundamental to American labor law." She criticizes the majority for not being "modest" and "reaching out" and its "misguided foray" etc.  And, she says that the majority is trying to have it both ways (minimalist and reaching out -- signs of a compromise?). Later she notes they "seem to misunderstand" and then argues it ignores congressional intent.

The general assumption seems to be that Sotomayor and Kagan went along with the majority since it is the best they could get with three conservatives willing to go further.  Plus, maybe, they simply think the result here is narrow.  It is a brief and mostly dull opinion that lets the dissent be.  Alito briefly references it.  The dissent is somewhat curiously mostly solo.  

And, as noted by Jackson herself, on remand, the reach of the majority's result, in this case, can be relatively slight. The fear is it will in later cases put labor in a harder position.  At any rate, it is a chance to see Jackson speak her mind and show her in action.  This time not joined by Gorsuch or anyone else.  

[Chris Geidner covers this in his excellent analysis.]

==

We will see how this term's affirmative action cases will go but this is a good discussion on why class-based alternatives only go so far.  Here's a bit on an Oklahoma abortion case.  And, a reminder -- lest we forget -- that the Supreme Court is worthy of some contempt:

They have been spinning their ethical lapses (Justice Clarence Thomas), blowing off congressional oversight (Chief Justice John Roberts), giving interviews whining about public criticism (Justice Samuel Alito) and presenting awards to one another (Justice Elena Kagan to Mr. Roberts).

The op-ed also notes how the Supreme Court in the Roberts years has been taking on more and more power while having a superior view of itself as "outside" of the political process.  This sense of superiority is as Stephen Vladeck argues something that should be pushed back upon. 

I have a general rule that history suggests ebbs and flows in various respects but few "golden ages."  I do not think -- not that the op-ed quite says this -- that this view is new in the last fifteen years. 

The Supreme Court has had an expansive view of itself for a while, in part a development of the growth of the government as a whole.  The Lochner Era got pushback for invading appropriate economic regulation but it left in place (not always ideally) a lot of other things (see segregation).  

I have a degree in history and write about it these days for another website. History overall is important. It's something to keep in mind.  We do also have to live in our own time. So, it is okay to view things through the lens of the Roberts Court.  Look at what it is doing.  Respond to what is in front of us.  

The op-ed is correct to say the liberals on the Court are not free from blame. I have noted my disdain for their tendency to circle the wagons. There are moments. Sotomayor in her appearances repeatedly teaches that don't who believe change is needed should resist.  She grants she doesn't like certain things that are happening results-wise.  

Kagan has criticized the shadow docket. It is not surprising that she is the first one that labeled why she recused in a case.  When she introduced Roberts, she noted there are things that make her want to pull her hair out.  Yes, she or Sotomayor could have shown up.  Or Jackson. 

But, they would be not private parties.  They would be representatives of the Court.  It is fitting that that is done by agreement among the justices.  We don't know if Kagan or someone else suggested that Roberts or maybe a liberal/conservative tag team show up.  Or, how that attachment to Roberts' letter that was signed by all the justices (which spelled out basic ethical rules they followed ... somehow) was negotiated.  

Telling fact.  I was disappointed by Biskupic's latest book because this internal "behind the scenes" aspect was in my view not really provided enough to add much to what I already knew about the events.  Adding to the lack of many results, it is not a very satisfying mitigation.  I do think the liberals have some agency here though they have limited power. 

==

There will be more orders on Monday and another opinion day next Thursday.  And, perhaps an execution.

SCOTUS Watch: Jackson Solo

The Order List was a bit longer than usual, and yes, there was a bit extra. Among the usual nothingburger, Justice Jackson has her first solo dissent to flag the overuse of Munsingwear vacatur (when courts vacate opinions that become moot). SCOTUSblog recently had a podcast on this bit of inside baseball among the "shadow docket" (Vladeck book in May). The specific case (involving abortion) is here.

The oral arguments this week are highlighted by one about Jack Daniels being upset about a dog toy parody. But, first, we have water rights for Native Americans. Sotomayor is feeling under the weather (did Gorsuch give her something?!) and took part remotely.

Meanwhile, Biden never had a tie-break as a vice president, but has a veto now. There is a filibuster-free means to overturn federal policies and one was found a couple of Democrats in the Senate supported. Well, got that footnote out of the way.

Religious Liberty Developments

Among the new Supreme Court grants is a case that might strengthen the rules of the religious accommodation now in place for employees. 

I would not be surprised if the resulting case is unanimous with perhaps one or more justices concurring. The case involves package delivery on Sunday, which seems like an easy case. A constitutional claim involving unemployment benefits for a Seventh-Day Adventist was decided back in the early 1960s.  But, one can imagine tricky situations as seen by various vaccine mandate rules that have been challenged.  

[ETA: High School SCOTUS has a good case preview.] 

A notice that "Biden-Harris Administration Proposes Restoring Protections for Beneficiaries of Federally Funded Social Services" received positive reactions from more than one separation of church and state groups.  The statement includes this general comment:

Today, nine federal agencies are further advancing President Biden’s call for religious freedom and equity for all by proposing a new rule to restore religious liberty protections for beneficiaries of federally funded social services, such as job training and job search assistance, academic enrichment opportunities, and housing services. These protections were rescinded by the previous Administration.

The situation seems to be that the Trump Administration allowed certain groups to block services for those that did not go along with the religious tenets of the organizations in question.  This would arise, for instance, if an LGBTQ person was denied service in certain cases.  

(The bit about encouraging the notification of alternatives brought to mind Gov. Hochul's veto of a bill requiring notification of secular alternatives being available to certain treatment programs.)

Religious liberty groups that are concerned about those with secular beliefs might appreciate as well the president's "Proclamation on Religious Freedom Day, 2023."  The statement included this:

Across the world, minority communities — including Uyghurs, Rohingya, Ahmadiyya Muslims, Jews, Christians, Bahá’ís, Yezidis, atheists, and humanists — continue to face intimidation, violence, and unequal protection under the law.

I have been working on a blog for another website regarding China's mistreatment of Christians. China is officially an atheistic country, but their concerns about proper ideology are likely to clash with some atheists.  More broadly, other nations with official religions have discriminated against  "atheists and humanists" and so forth.  It is good that these statements (including day of prayer announcements) are inclusive.

I read a "very short introduction" book on atheism and it too was not completely inclusive.  I do not recall a single word about Africa. Also, atheists tend to think of a certain breed of monotheism when they speak of "religion," including in criticizing concepts of God.  

It is far from clear that "religion" itself cannot include atheism.  The book briefly recognized the issue here in a final chapter about "new atheists," who are regularly much more militant. The book notes that religion includes "practice, ritual, community, ways of orientation ourselves to the mysteries of the universe," and not just matters of "belief." Belief is an open-ended thing as well.  

If required to fit myself into a generally recognized religion, I would at this time associate myself with the Unitarian-Universalists, who include various people who do not believe in God.  The book also notes that Buddhism, unlike Taoism (Daoism) and Confucianism is firmly labeled as a "religion"  (Taoism is tricky but Confucianism is more of a philosophy), often broadly includes non-theistic aspects (some forms do have mystical aspects).  

Anyway, consistent religious liberty is an important thing, and should not just be left to conservative evangelicals.  I respect the importance of Christians and others having some discretion though reasonable lines should apply.  And, religious liberty includes protections for all, including those whose religion firmly holds that they have the right to choose an abortion. 

SCOTUS Watch: Day 1

Order List: Doesn't seem like anything that notable. Action on a New York/New Jersey border dispute. Took a couple cases that so far I have not seen much notice of. Didn't act on something that might be a red flag. Thomas/Alito upset they didn't take a criminal case that could have put someone back on death row. 

(The same "Shoop" is involved in the last opinion disposed of today, refusing to allow use of habeas to provide a transfer order to get testing to make a certain claim. The liberals (Breyer) and Gorsuch (separately) dissent on procedural grounds.)

More Low Temperature Opinions:  The first opinion was disposed of in twelve pages (headnotes, majority, dissent) and involved denial of insurance coverage for outpatient dialysis.  Kagan (with Sotomayor) had a brief, but pretty strong dissent ("common sense suggests" etc., finding the majority patently wrong. So, one more Kavanaugh v. Kagan moment.  

The next opinion (Gorsuch with Thomas/Alito with separate dissents, each handled by a snarky footnote by NG) involved the continuing efforts of SCOTUS to clarify what "crime of violence" means.  Prime material for certain criminal justice lawyers/professors.

And, then Breyer for an unanimous Court found a Washington State workers compensation scheme discriminated against the federal government, violating the Supremacy Clause.  Brief opinion.  

Major/Expected: The last opinion, as expected, expanded previous religious funding to schools rules to require Maine to fund discriminatory religious schools as long as they funded secular ones.  The state has an obligated to fund education and used vouchers to deal with thinly populated areas.  Some other state might not have to deal with that issue.  

Justice Breyer had the main dissent, underlining his concern about avoiding religious divisiveness. Justice Sotomayor, not joining the section that highlights that is somewhat less separatist than she (she dissented in an earlier case Breyer/Kagan joined involving playground funding), dissented on her own, basically with "told ya so."  Sotomayor replaced Souter, who filling in on the 1st Cir., supported the same path below. 

A basic thing that Breyer notes is that precedents should be applied to recognize a "play in the joints" that might in various cases allow funding to religious schools, but not require them.  Justice Byron White, who often dissented in Establishment Clause cases, followed that principle all the way back to Sherbert, which required a religious exemption in unemployment cases (he dissented).  See also his dissent in Widmar v. Vincent.  

James Madison before the First Amendment was ratified opposed use of funding to support religious schools, leading the way to the rejection of such usage.  So this is an old battle.  The opinion leaves open the state to merely fund public schools, but it is unclear why it can not fund public education in this fashion.  The "play in the joints" ability to deal with special needs without needing to carry all of the load will likely apply in other contexts.  

The aftermath of this opinion remains to be seen. But, if the funding will require state funding of discriminatory schools (anti-LGBT or whatever), it would seem to be problematic on state or federal grounds.  So, and Sotomayor flags a possible way left opened, if there is a way to meet state rules for public education funding besides this program, I think they have a constitutional compulsion to obtain it.   

(More on this case can be found here.)

Supreme Court Watch: Day 2

SCOTUS News: We had more opinions on Wednesday, but also continue to have other news. First, there is the continuing story of Ginni Thomas' efforts to overturn the 2020 elections, now with more John Eastman. As usual, this continuing onslaught has a general feeling of "this is bad" without fully being clear how much is there, including how much Clarence Thomas (Eastman was his clerk) is involved. For instance:

The emails show that Thomas’s efforts to overturn the election were more extensive than previously known, two of the people said. The three declined to provide details and spoke on the condition of anonymity to discuss sensitive matters.

The talk has been that there was some pushback on the 1/6 Select Committee to do much about Ginni Thomas, seen as something of a sideshow and perhaps not supported by the two Republicans. The article notes that the committee is deciding what to do though such leaks very well might be a sign of some sort.  What exactly (pressure? dissenting voices? a means to send info without doing formally?) it means is unclear. 

The person who went to Kavanaugh's house apparently well prepared to do mischief (apparently seeing the house defended, he said "nah" ... if it was "suicide by cop," he changed his mind, surrendering peacefully) was indicted for attempted murder.  As the article noted:

Montgomery County police found a black tactical chest rig, a Glock 17 pistol with two magazines, ammunition, a knife, pepper spray, zip ties and duct tape inside his backpack when they arrested him. 

Basically, he planned and otherwise did too much to get off the hook at the last minute.  Meanwhile, the House passed the Senate bill to expand security coverage to the family members of justices.  After a quick passage in the Senate (without dissent), it was held up in the House because Democrats wanted coverage for clerks and such as well.  

After all, as Rep. Lieu noted, one was targeted by name as the assumed leaker of the Dobbs opinion.  A few Democrats (including AOC) did not vote for the Senate bill, but most did.  As a summary notes:

This bill grants the Marshal of the Supreme Court and the Supreme Court Police the authority to protect any member of the immediate family of the Chief Justice, any Associate Justice, or any officer of the Supreme Court if the Marshal determines that such protection is necessary.

There has been complaints that the Senate did this so quickly while gun legislation or something was not passed.  Sure.  Okay.  Fine.  But, once your rightful indignation passes, this sort of legislation, of top members of the third branch of government, after people (including Sotomayor) were threatened or there was a serious threat there, is sound legislation. 

A few did add that the legislation does not address the necessary coverage needed to lower federal courts, including after a family member of one was murdered.  Again, that is valid, and if that is why people from her state specifically didn't vote for it, kudos.  It simply is easier to pass a more restricted bill, especially given current events.  

===

Opinions: There was also a second opinion day with a slew (six) cases disposed of on Wednesday.  We are down to 18 opinions left, including probably around six really notable ones (abortion, two religion cases, Remain in Mexico, an EPA case, and let's say at least one more).   Meanwhile, jumping ahead, we already have the first arguments of the October 2022 term.  Fun times.  

One law professor on Twitter basically listed the cases as "not ones you care about" and they aren't the hot button issues. Now, those following a law professor on Twitter are more likely to care about some less exciting Supreme Court opinions.  Also, some of the opinions at least were notable in various ways, particularly doctrinal. 

Stolen Seat Guy (Gorsuch) played a notable role in many of these, including separating himself from other conservatives repeatedly.  The first case, for instance, was Barrett v. Gorsuch (Breyer and Sotomayor joining him up to a point) involving a VA regulation.  One might be sympathetic with the petitioner, but the case turned on clear error.  If you do not give discretion to the agency here, you might not like the result in other cases.

[This SCOTUSBlog summary is interesting in discussing the interpretative approach taken determined the results here, including "canons" involved, and so on.  And, such application does not seem consistent.] 

This is one of those cases where it's best for me to simply understand what happened as compared to assuming I can figure who is correct. As to agency discretion, another notable if less flashy case involved a complicated health care matter.  The recap suggests the unanimous Kavanaugh opinion might be a sign "Chevron deference" is being buried by just ignoring it.

Gorsuch's clear sympathy for Native Americans (though on Twitter, a law professor that specialized in Native American law suggested he was wrong in the double jeopardy case, showing perhaps his competing views clashed there) also showed up in a 5-4 opinion involving the discretion given to Indian gaming.  Roberts dissented along with the older conservatives and Kavanaugh, leaving Breyer one of the few chances to assign.  

As noted by the linked commentary, also flagged on legal Twitter, the voting array reflects another big 5-4 Native American dispute, which has a pending follow-up in the post-RBG era.  Barrett joined this opinion and inside baseball suggests it sends a message she will vote with Gorsuch in the upcoming case.  We shall see there, predictions somewhat iffy.

A general theme in this collection of cases was "we are just doing our job, statutory interpretation," though the end result was disputed.  This as Prof. Victoria Nourse noted on Twitter included when the same interpretation methods were used.  She also flagged Gorsuch's usage of purpose.  Text alone will not get you where you want to go, at the very least, if there is any major dispute on the meanings. 

Sotomayor wrote an unanimous opinion clarifying the rules regarding an important international agreement involving at risk children.   

Alito, not writing one of the religion in school opinions quite yet (I thought the prayer case might drop), wrote an opinion "preempting" to some degree (if not as badly as some feared) a California law involving arbitration.  The result was 8-1 (Thomas didn't like the rule applied and doesn't care much about precedent) though Barrett, Kavanaugh, and (if not as much) Roberts would have decided the result on more limited grounds.  

[SCOTUSBlog's summary notes the section all three don't join is basically gratuitous, but it seems like it was added to make the liberals happy.  The interesting vote there is Gorsuch, who concurred without comment.  The first part cites some "limits" to the California law, but Roberts did not find this problematic, unlike the other two who concurred.]

One theme in this set of cases is that Roberts in various ways did not go along.  He wrote a dissent, only concurred in part, and for the conservatives (if not the two latest) wrote a rare concurrence to a DIG. The Court as a whole did not explain why the case was "improvidentially granted," a "because we say so" result that is normal, if wrong, in such cases.

During oral argument, it did seem the justices (etc.) was not really gung ho about supporting the route taken to challenge the "public charge" rule now that the Administration no longer enforced it.  But, some didn't like the way the Biden Administration went about it, feeling the right procedure was not followed.  Roberts sent a message with his concurrence, but again, not for the Court. 

==

Conference: Thursday a day for conference.  Monday is a federal holiday, Juneteenth, so orders will drop on Tuesday.  There are 18 opinions, including some big ones, so I think there will be four more opinion days.  Two are scheduled for Tuesday and Thursday.  I don't think we will have six a day since we had basically five a day (with one non-opinion) with a bunch of B sides.

One thing noted on Twitter was some opposition to the policy of dropping opinions in ten minute increments, which makes more sense when they read the opinions from the bench.  I am okay with sticking with the old way, even though it's just automatic release, in part since it gives me a chance to quickly look at the opinion before the next is dropped.  

===

Sotomayor At ACS: Liz Cheney during one of the public sessions of the 1/6 Select Committee labeled the Federalist Society a conservative lawyer organization, which probably would annoy them -- we are libertarian too! we are a non-ideological debating society!  We just happen to be appointed by Republican presidents as judges and stuff. 

The American Constitution Society does a lot of generalizing, but on their "About Us" page eventually notes it "nurtures the next generation of progressive lawyers, judges, policy experts, legislators, and academics."  Like the Federalist Society, they have invited ideologically dissenting guests to various panels though recent videos I have seen are basically one-sided.  Eric Segall seems to be a favorite friendly debating partner for FS, which at some point to me normalizes them.  To the degree they did not do enough to push against Trump, that to me is wrong. 

Fix the Court wants liberal and conservative justices to go to their opposite numbers (said so on Twitter).  I think that's a great idea though would not put (like the tweet) the responsibility fully on their side. It is up to the groups to invite them.  I do think the justices can somehow send a message they would be open.  

Still, it is not apparent they actually refused to do so.  I suppose Breyer or Kagan would be open at least.  And, yes, it does look dubious since these are not just debating societies. They are ideological groups, and federal judges should try to remain somewhat neutral appearance-wise. 

Anyway, it is not surprising that Justice Sotomayor was a special guest at their annual convention.  Federal judges have served such a role in the past.  Sotomayor was in part chosen since she is a good public advocate and she strongly believes it is important for her to do so to inform the public.  She has signed on, especially now that Sandra Day O'Connor is no longer able, to the civics campaign too. 

She also generally, though you might not know it from some of her dissents (her majority opinions, like Thomas, can be dry),* puts a positive face.  She seems from my vantage point a general positive person. She loves, for instance, to go into the audience like she's some talk show host. And, she repeatedly hugs people.  

The report of her remarks  (interviewed by a former law clerk) contains various comments where she puts a positive spin on things, including praising Justice Thomas (this is not surprising with his clear rapport with Breyer and reports court personnel love his personal touch).  We already had that mask controversy where a statement was released and she was shocked there was any suggestion Gorsuch (the one person on the bench not wearing a mask, even though he sits next to her, a diabetic) was somehow at fault.  It was just over the top in my view. He was an asshole.

Anyway, she references the "institutional structure" and notes:

“We have to have continuing faith in the court system and our system of government,” she said, adding that she hoped “to regain the public’s confidence that we — as a court, as an institution — have not lost our way.”

Sotomayor isn't going to discuss ongoing disputes, but like I said when talking about the latest Breyer book, there is a problem there.  It is appropriate that a sitting federal judge does not opine completely on ongoing political matters.  So, these avenues require them to balance on a tightrope of sorts, honing to a fine line at times.  Including somewhat vague and general bromides.  Some, like Alito et. al., do bitch some.

[I know "bitch" is a dubious gender laden word here. A word like "whine" probably works just as well.]

I appreciate that Sotomayor by her remarks does not just handwave the current reduction of respect of the courts.  I also realize she is limited in what she can and will say.  (Ginsburg annoyed some by laying it on thick about Kavanaugh being a fine person. Again, it's a fine line.)   

But, the lack of faith is a result of various deep problems with the current Supreme Court.  And, the public voices and actions she vaguely remarks upon should and in my view must put forth serious changes for the confidence to be regained and/or properly held.  Finally, no matter how nice Thomas is (and on some level seems true), he is part of the problem here, including blatantly crossing ethical lines that warrant him resigning.  

I think Sotomayor is a great asset, but at some point, once you are a member of the Supreme Court, you are institutionally self-interested.  Some this is her overall sense of the world, some of it is that she is a justice of the Supreme Court.  I understand but still it's a bit hard to take sometimes.  The happy face (with enough honesty mixed in to get my respect too) these days is not really the vibe I have. 

---

*  She is open about it in public remarks, including here:

“There are days I get discouraged,” she said. “There are moments where I am deeply, deeply disappointed. And yes, there have been moments when I’ve stopped and said, ‘Is this worth it anymore?’ And every time when I do that, I lick my wounds for a while, sometimes I cry, and then I say, ‘OK, let’s fight.’”

And, though I'm wary about the personal nature of judicial opinions sometimes, I am glad she is doing it.  I do think -- and there was signs of this way back when too -- opinions in our country are too personal.  But, there is a place for certain strong arguments.  For instance, she is the last strong supporter of separation of church and state left on the Court.  

==

Addendum:  A lot of stuff, and not just opinions.  After a bit of time, we have a few edits of opinions.  One was a single typo; the other also mild edits (e.g., basically "it appears" to "in the view of the parties, it appears.").  Also, we have more urls on page where permanent copies of the pages cited are kept.  

And, an interesting old critique of Marbury v. Madison.

SCOTUS Watch

Among the talk of leaks and other internal concerns, it has been noted that the Supreme Court has been lagging behind this term. This is not a Court that had to deal with the first year of COVID or has particularly broad docket as a historical matter. There were some notable shadow docket cases and some particularly notable cases (many not handed down).

Perhaps, that explains the lag time some. But, I have not seen any clear clarity on why before this week they have over half of their argued cases to hand down with less than a month left of the usual active term (that technically ends the day before the First Monday in October). Maybe, they need more justices.  Three or so, and you might have nine legitimate ones.

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Anyway, before last week's Thursday Conference, an order was dropped agreeing with a Solicitor General's request to combine two cases. A briefing schedule was provided.  As a sort of prelude to another term chocked fill with important cases even at this early stage, the cases involve the constitutionality of activities of the Federal Trade Commission and the Security and Exchange Commission.  Such things continue split the justices ideologically.

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Order List:  A grant involving the "Quiet Title Act" was symbolic of today's no drama Order List. 

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Opinions:  We are getting less opinions, now at a slower rate, and Mr. Shadow Docket argues it isn't all good even with a bad Court.  At the start of the day, there was thirty-three opinions in argued cases left, which Amy "great SCOTUS resource" Howe helpfully breaks down.  

Three cases, nothing really notable, were handed down. A quirky case that dealt with constitutional rules regarding uniform bankruptcies was dealt with unanimously via Sotomayor.  Non-uniform rule blocked.  The opinion looks minimalist -- "uniform" not taken totally literally, but here it looks like the basic idea was that Congress itself created the problem it allegedly reasonably was addressing.   Brief opinion; some flexibility allowed. 

She dissented with Breyer in an Medicaid case (Gallardo), arguing the conservatives (and Kagan) were wrong to allow the state to go after some money.  This is one of those cases where I'm more concerned about the rule than the result since only experts really will be able to parse it.  Sotomayor might be right (the law tends to have enough flexibility so that you can pick your value choices), but Kagan joining suggests it is not too blatant.

Thomas writing the opinion meant the next opinion was Thomas, Roberts, or per curiam. Thomas for everyone (Barrett didn't take part) interpreted an arbitration case in a worker friendly way (Saxon).  One of various limited cases they are going to decide -- not everyone they hand down is crap.  

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We will have one or more opinions Wednesday.  To remind, they don't show up, and this is wrong, especially since they can do so remotely (or provide audio/video) if desired.  Plus, past practice shows in person opinion announcements were seen as valuable.  Now, even in the heat of major cases, and when they had in person arguments, they don't show up.

Weeks to Go ... Lots of More Dobbs Talk To Come!

The leak of a whole draft opinion, including its specific qualities, has led to a lot of commentary.  Let us also remember there there are multiple leaks. There is the draft opinion, which gets a lot of the attention.  But, there are also other leaks, continual really, of the overall process.  This end seems regularly to come from the conservative side.  In fact, I do not know of ONE article that referenced (other than maybe in very vague "they all" terms) the opinions of the liberal justices. 

Prof. Sherry Colb, e.g., have written about it from a religious and feminist angle in strong terms. She's clearly angry (her anger tends to be earned) and blunt. At times, I think she might be a bit too blunt, but when someone on the whole is on point, that's okay. I like to carp, sometimes maybe too quickly. Still, I do believe that. And, when someone does not respect someone because they latch on to a little part, that is one thing that bothers me. 

The leak of the draft opinion -- which a few remind us is a draft opinion and probably will at least be somewhat toned down (so I'm not really inclined to read the whole thing or something though reading drafts can be useful, especially if you have the final draft) -- to me has had clear effects to drive responses from the pro-choice side.  

The likelihood of a bad result was pretty clear, but the draft basically slams it over our heads. Many (with the exception of Tom Goldstein at SCOTUSBlog) non-conservative in nature assume the leak was from a conservative clerk or something.  One outlier liberal professor said she thought it was a computer hack.  But, the response to me suggests there is some argument to be made that the draft leak (again only part of the leaks) could have come from the liberal side.  

Abortion rights are Human Rights

Abortion Rights are Health Rights

Abortion Rights are Economic Rights

A basic response is to reaffirm the importance of reproductive justice, in particular abortion rights, to women equality.  This blog analysis, which ends with those three points, focuses on that significantly.  Linda Greenhouse in a recent op-ed (she no longer has a regular column at NYT, but still pops up) shows that the Thirteenth Amendment argument is also getting some traction.   And, we get some tools and tool curious.

But the argument that Dobbs is an illegitimate action by an illegitimate Court must hinge on more than "I have a different view of the law."

I bluntly call that "tool curious" in part since I'm tired of various things that guy wrote in the "I'm pro-choice, but will handwave the problems of the law ... I get you are emotionally attached, but this is how things work" sort of way.  He once, e.g., compared the Texas abortion litigation and the delays that led so many women to be denied abortion rights to NYT v. Sullivan.  There are significant differences.*

And, "I have a different view of the law" is not why people think what is going on illegitimate.  I'll try to be fair and calm here.  A basic concern for him is a statement like this from the last law professor linked:

If and when Dobbs overturns Roe, this will be the first time in American history that the Supreme Court overturns precedent in order to take away – rather than to expand – fundamental human rights. 

What's the reply here?  The Supreme Court at least "limited" the freedom of contract (Lochner).   Also, they "limited" rights of criminal defendants in various respects.  And, the Supreme Court majority might argue that it is "vindicating a right to potential life."  To be clear, the guy (huh) is tentatively accepting of the framing, but less sure it works. 

I would push back on too much fine tuning here and the fact two law professors are involved show this is just not a matter of me not "talking law" enough or something.  The scope of overruling abortion rights is the concern here.  Planned Parenthood v. Casey already limited abortion rights.  

And, the first person didn't actually say it was "illegitimate."  She said it had "horrendous implications for our democracy that cannot be understated" and "should be alarming enough and give us an understanding of how much at risk all our constitutional rights are right now."  

So, why is he referencing her regarding it being allegedly "illegitimate" for that reason?  I doubt it is rocket science to argue that it's possible for the Supreme Court to wrongly hold something is a right.  The concern is they plan to wrongly remove a right.  And, whenever they do that, they will argue they are somehow correctly defending "rights" in another way.

And, we have some more, this is so hard:

It cannot be the result simpliciter--that my constitutional understanding differs from that of the apparent five-Justice majority does not make their views wrong in any objective sense, much less illegitimate. It cannot be that it overrules precedent, because the Court has overruled precedent. This is also why it cannot be that recent appointees pledged fealty to stare decisis--case are always subject to reconsideration and stare decisis has standards for overruling cases. It cannot be that the stare decisis analysis is wrong, for the same reason that disagreement with substantive constitutional analysis is not sufficient.

Yes, since I do not think anyone with any half-way credible argument regarding why the opinion is arguably "illegitimate" rests on strong differences in constitutional ideology alone. Some do argue specific analysis here are so wrong that the opinion is not credible.  That goes to the merits.  It is simply a strawman, however, to say the argument is merely "I disagree, therefore illegitimate."  It's made too often.  I'm tired  of it. 

Likewise, granting there is limited confusion here, precedents are overturned.  The longstanding nature of the precedent and more again goes to people being very upset at it being overturned.  Still, even the common layperson is vaguely aware about how segregation was once accepted. They lived through same sex marriage being constitutionally protected.

And, people can change their mind about things (Alexander Hamilton did after he wrote the Federalist Papers).  That alone is not the point in a bare way.  Let me note I'm using this guy as a representation as much as a way to answer arguments.  It is an example of people arguing in a bad way.  I get upset at it, but it also suggests there is just a cluelessness of some.  

Anyway, the argument I have seen is that the conservatives basically lied about their respect for stare decisis.  People like Kavanaugh and Barrett were chosen specifically because of their positions on things like abortion. For them to parrot the usual bland bullshit about how Roe/Casey is the law of the land when it is apparent they would overturn it the first time it was sensible to their cause is just that -- bullshit at least, perjury at most.  

Now, maybe that is wrong.  Maybe, they just parroted the usual lines used by both sides.  This, however, is the argument I have seen.  It is not simply that stare decisis means law can never change or they cannot change their minds.  That's stupid.  If you want to briefly go down the list of bad arguments, fine, but let us be clear that you are doing so badly.

So, the basic arguments so far are (1) abortion rights are fundamental and it is on the merits illegitimate [especially given the weakness or even blatant offensiveness of their arguments] to remove such basic rights (2) they were put there, in sham sort of way, to do this and basically lied about it.  

If you want to refute this sort of thing -- like "reasonable" Orin Kerr does regarding how "both sides do it" regarding nominations from Garland to Barrett -- go at it. Still, if you want (the straining seems tough on you) figure things out, perhaps do a better job of it.  

And, yes, a basic part of the illegitimacy is that people think HOW they got there is illegitimate.  To add insult, a case that is about a limited thing (a 15 week ban) is used in a broad way to go after Roe itself.  Finally, many don't even focus on "illegitimate" as much as it being a grievously wrong denial of basic human rights.  

A horribly argument in support of state sponsored enslavement is bad enough for many of us.  At another blog, which no longer has comments either, a prime conservative sort basically questioned the good faith of the other side.  Their arguments seemed so wrong to him, it must be that.  I tried to argue that it is a matter of honest, if often wrong-minded, disagreement much more often.  Even he, however, realized mere disagreement alone was not illegitimate.  

Anyway, it would not shock me if the abortion cases brought us some sort of surprise.  There is so much commentary beforehand, people very sure of themselves in the process.  And, there is a lot of confusion.  To quote a favorite verse of mine of St. Paul, we continue to look at things through a glass, darkly.   

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* The summary of the article compares the two situations, but SB8 was a novel approach with various dubious legal aspects, including making it more difficult to sue and retain relief.  It is not simply like historical libel litigation, which certain government officials could for their own ideological reasons basically abuse.

The delays of litigation are present in the libel case as with many other lawsuits.  Again, there is a significant difference when the result is to inhibit people from having abortions, and perhaps pressure them to have (permanent) children.  The NYT and other libel plaintiffs generally have temporary burdens (of limited reach) that later can be addressed.   

On the blog, he blandly noted the delays in the SB8 litigation as if there was nothing special about them.  The usual practice in these cases was to hold the abortion limits in abeyance pending litigation. Again, because the alternative is significantly different from the libel context.  

Finally, the SB8 law is patently unconstitutional, if perhaps predicatively acceptable.  The libel law was to my knowledge a fairly typical historical based one that the Supreme Court deemed in need of updating.  So, without fully going into the weeds of the article, I find the comparison to have various problems.