What is Roberts Up To?

 

That image you've seen that makes the Obama Presidential Center look flanked by some kind of reflecting pool, as if on purpose to madden Trump, isn't, but a much more natural-looking feature, a piece of the Jackson Park Lagoons, part of the original design of the park by Frederick Law Olmsted and Calvert Vaux (same architects as Manhattan's Central and Riverside Parks). Image by Obama Foundation.

I briefly entertained an idea that Trump might have heard rumors of a reflecting pool on the Obama Center campus and lost his mind in the desire to have his own, and that's where his own pool project must have come from. That's plainly not true, but I think it likely is true that he's been driven wild with jealousy of Obama's monument, which he's been screaming about for more than a year:

"I mean look, President Obama — and if he wanted help, I'd give him help because I build on time and on budget — he's building his presidential library in Chicago. It's a disaster," Mr. Trump said. "And he said something to the effect, 'I only want DEI, I only want woke.' He wants woke people to build it. Well, he got woke people and they have massive cost overruns, the job is stopped. I don't know, it's a disaster.... millions of dollars, like many, many — I mean, really, millions of dollars over budget," and said the problems were because Pres. Obama "wanted to be very politically correct and he didn't use good, hard, tough, mean construction workers that I love."

There's no evidence that he builds "on time and on budget". Also, it's so cute that he loves them because he believes they're "mean", though I don't know how he could knos that. They've surely never been mean to him or more important his father; I mean they may have contemptuously ignored him on one project and another but they wouldn't have wanted him to see them doing it.

Anyway, the success of Obama's opening, with its entertainment by Stevie Wonder and Bruce Springsteen, Bono and The Edge, Jennifer Hudson, John Legend, Common, Eddie Vedder joining the Chicago-based cooperative Guitars Over Guns, and The Roots, while he couldn't even get an appearance by the surviving half of lip-synch act Milli Vanilli, not to mention the audience that never showed up for his stupid-looking spectacle, may have really driven him to insanity.

***

Photo by Bob Donnan/Imagn Images via FanSided.

I'm obviously glad the Supreme Court found (in the opinion released today on Trump v. Barbara) that people born in the United States are citizens of the United States, as they basically always have been, and certainly have been since the ratification of the 14th Amendment in 1868 (except when it seemed that might not be true for people of Chinese ethnicity, as could have eventuated in the last couple of decades of the 19th century, but didn't), but a little annoyed, along with a lot of people who are, unlike me, experts, at the stinkbomb tossed into the mix by Justice Brett Kavanaugh, who found that birthright citizenship indeed exists, but not by the constitutional mandate of the 14th Amendment—rather, he says it's only a violation of the omnium-gatherum U.S.C. § 1401(a), passed in 1952, which attempts to sweeps up all the hard possible cases that the 14th Amendment doesn't clearly cover (e.g., a foundling who was under the age of 5 when discovered on US territory becomes a citizen when he turns 21 if nobody has determined in the interim that he was born in some other country), setting up the possibility that some fool Republican congressmember will try to eliminate birthright citizenship through legislation and the Court could decide to put up with it, in spite of the 5-4 majority (Roberts, who wrote the opinion, Bryant, Kagan, Sotomayor, and Jackson) that just ruled the opposite way.

Ask Etty Kett

Dear Etty,

I know a bunch of people who would like to be ambassador to Uruguay, and as President of the United States I'm definitely entitled to give one of them the job. But I can't give it to all of them. So I had this brilliant idea that I could auction it off to the highest bidder, like give me a billion dollars and I'll name you ambassador to Uruguay?

Only my lawyers think I might get into trouble for that, and to be honest I've had some bad experiences with stuff like this recently. Like I had this charitable foundation where I used to get people to make me payments so I wouldn't have to pay income taxes on them, because I'm smart that way, and this stupid state attorney general, a colored lady by the way, this is what affirmative action gets you, said I was violating the law on charities and closed the whole foundation down and made me pay a big fine. And then this actress I banged years ago wrote a whole story about having sex with me and could have published it in the middle of my presidential campaign and I had my other lawyer pay her a hundred thirty large to keep it to herself and then when I was paying him back I kind of structured the payments to make them look like normal legal fees and now I'm stuck with a 34-count criminal conviction from yet another colored prosecutor for falsification of business records for which I can't even pardon myself since it's not in a federal court.

So I thought it would be best if I just took the money straight, like a billion-dollar check, and deposit it, not in the superPAC or whatever, but right in my own account. Will that work?

Blessed in Bedminster

Literary Corner: Article II

 

To the tune of:

A-B-C-D-E-F-G-H I got a law
called Article Two
Everyone says
It's the thing for a pres
that Article Two-Two-Two-Two-Two-Two
says I can do
what I wanna do
skeleton key
for the man that is me
my Article Two-Two-Two-Two-Two-Two

I don't have to worry
ever see a jury
I'm like a tsar
buy yourself a justice
someone who will trust us
hiya Sam Alito
everything's A-R-T
I-C-L-E-T-oh

oh what a law
a hullabaloo
I'll shoot a guy
just for rolling his eye
on Fifth Avenue
I'll get a big erection
when I cancel the election
thanks to Article Two-Two-Two-Two-Two-Two

Chicken Supremes

Cop with James Earle Fraser's statue of The Contemplation of Justice, waiting for the outcome of Trump vs. Anderson. AP Photo/Jose Luis Magana, via WJTV, Jackson, MS. 

I told you the main purpose of the Supreme Court in the Colorado case would be to avoid getting within 500 feet of an opinion on whether the adjudicated rapist and bank fraud Donald Trump ever violated his presidential oath by engaging in insurrection after he took the oath in 2017, and sure enough, they avoided it, though the three liberals, in their dissent-concurrence, did manage to use the phrase "oathbreaking insurrectionist" four times, which is all to the good.

The majority even avoided making the case about the questions of standing and venue—whether the plaintiffs (Colorado Republicans) had standing to sue to keep Trump off the ballot and whether the Colorado judiciary was the place to do it. Instead they argued, effectively, that there was nobody with standing and noplace for them to go anyway, and blaming that on Congress, I mean the Congress of the late 19th century, which had never passed any legislation telling people how it's supposed to get done, so it's useless: it's illegal for an oathbreaking insurrectionist to hold federal office, but impossible to stop him from doing it, because the technique is a lost secret of the ancients.

Court and Snark

 

Photo by Julia Nikhinson/Getty Images, via CNBC.

It's looking pretty clear from this morning's oral arguments in the Supreme Court, and falling out pretty much as I expected: Trump's appeal against his disqualification in the Colorado primary election will succeed, and I'm predicting that the appeal he's supposed to submit Monday against the DC ruling on his presidential immunity will be denied, without arguments, by May 12, for trial to begin no later than June 1 (per the flow chart created by Just Security). 

In fact the fix appears to be a little bit in, not exactly in a bad way, not on Trump's behalf but on those of the nine Justices, united as we've never seen them in their desire to avoid deciding whether Trump had "engaged in" an insurrection or not. Roberts practically wailed: "Counselor, you're saying that somebody, presumably us, would have to develop rules for what constitutes an insurrection?"

Oh noes, not more work!

One of the most remarked features of the arguments was how little interest anybody, attorneys on both sides or Justices, showed in talking about that. They were openly avoiding talking about it in favor of just about anything else, mostly the technicalities the Constitution doesn't mention at all, of how Amendment 14 Section 3 is supposed to be administered.

I think a lot of people are missing how this is a problem for the three "liberal" Justices as well. To keep it short, they have a likely choice between  a 6-3 decision suggesting Amendment 14 Section 3 really doesn't mean anything at all and a 9-0 decision leaving the question open—where I think they're going, which is to lay the burden on the Amendment's neglected Section 5,

Unsettled Law

Before you begin your thinkpiece, the Supreme Court DID NOT strike down Affirmative Action

Admission preferences for legacies, donors, employee families and special recommendations are still allowed

The Court struck down Affirmative Action For everyone except WHITE PEOPLE

— Michael Harriot (@michaelharriot) June 29, 2023

Thanks for the heads up, Michael.

Pretty weird to be out again wanting to defend an institution when I don't even think it should exist—or maybe I just think it should be nationalized, like Oxford and Cambridge, except for the law school and business school, those have to go. But it's not really about Harvard, anyway. North Carolina is probably a much more important example, because what will happen there is that Black and Latin people will have less chance to go to Chapel Hill and fall into the less prestigious campuses of the state's system, where they will be less likely to graduate, less likely to go on to postgraduate studies, and overall make less money in the course of their careers. While the white and presumable Asian students who replace them in Chapel Hill won't actually do any better there than they would have done at Asheville or Wake Forest or wherever, because this is what my man Zachary Bleemer found when he looked at the corresponding situation at the University of California when they abandoned affirmative action after a state referendum, Prop 209, ordered them to:

Shamelessness Is Their Superpower

In which the old Emperor shows more of a sense of shame than you'll ever see from Chris Christie, or Marquito Rubio, or the entire Roberts court.

Didn't everybody see this coming if RvW was overturned? I mean, I know a lot of people thought it would never happen -- Wrong! -- but the consensus was that it would be an electoral disaster.

— Charles P. Pierce (@CharlesPPierce) September 12, 2022

Kilgore in July https://t.co/Yf3bUBqvEs to Bump last week https://t.co/yyBSsS9CuJ chanting "don't get your hopes up"

— Three Blog Night (@Yastreblyansky) September 12, 2022

Rhode Island Reds

 

1844 editorial cartoon in support of democracy in Rhode Island, via Wikipedia.

Law professor Melissa Murray was on the radio pointing out the irony of the "independent state legislature theory" in the case of Moore v. Harper to which the Supreme Court granted cert. last week in what I guess was their last act of vandalism for the term. This is the case of the North Carolina Republicans claiming that the state supreme court had no right to throw out their 2020 redistricting map (it was so partisan that the court claimed it violated the state constitution) because the federal Constitution says state legislatures can do anything they want when it comes to federal elections, even if it's illegal in the state.

There are two relev­ant clauses. One is the Elec­tions Clause, which reads, “The Times, Places and Manner of hold­ing Elec­tions for Senat­ors and Repres­ent­at­ives, shall be prescribed in each State by the Legis­lature thereof; but the Congress may at any time by Law make or alter such Regu­la­tions.”

The other is the Pres­id­en­tial Elect­ors Clause, which reads, “Each State shall appoint, in such Manner as the Legis­lature thereof may direct, a Number of Elect­ors.”

How you get from there to "the Legislature thereof" has supreme power to do whatever it wants I don't really know.

The "irony" Murray finds lies in the fact that the whole thing arose to public prominence because of concerns over election security in the 2020 election, and the idea that maybe state legislatures would have to step in to guarantee it, and yet now that the Supreme Court has decided to take up the case all those concerns have evaporated because it turned out there wasn't any evidence to justify them.

Except to me it's not ironic at all, since those "concerns" were bogus from the start. The "independent state legislature theory" has been around for a while (Chief Justice Rehnquist apparently evoked it in his concurrence in Bush v. Gore as a justification for Florida's deciding not to count all the votes), and though it's never attracted a SCOTUS majority, Alito, joined by Thomas and Gorsuch, endorsed it pretty decisively in a dissent in one of Trump's attempts to thwart the 2020 Pennsylvania election results:

"Someone who isn't frightened of what's going to be done to their reputation"

 

Giuliani testified, "Someone should be put in charge of the Justice Department who isn't frightened of what's going to be done to their reputation," in advocating for Clark to be put in charge of DOJ.

— Brian Tyler Cohen (@briantylercohen) June 23, 2022

Jeffrey Clark, the loathsome Assistant Attorney General for the Environment and Natural Resources Division who offered himself up as the Roy Cohn Trump was always saying he wanted, somehow had an aide in his office beginning in mid-December 2020, Ken Klukowski, who was simultaneously working for John Eastman, one of Donald Trump's private attorneys. It was Klukowski who drafted the letter to the governor of Georgia and leaders of the Georgia legislature dated 28 December that acting attorney general Jeffrey Rosen and his deputy Richard Donoghue refused to send when Trump told them to:

For the Record: "The people, through their elected representatives..."

 

if the "unborn" have "rights" the opinion doesn't say so, Chuckles. It's about the rights of state legislatures, not fetuses. Abortion remains legal wherever it's legal now.

And the people of Mississippi and Texas and Oklahoma and Iowa will be completely ignored by legislatures.

— Woke Mob For Taxing Billionaires (@Yastreblyansky) June 24, 2022

... Unelected Iowa judges last week overruled their own 2018 decision protecting abortion rights, setting things up for the state legislature to do exactly what the people expressly don't want them to do. https://t.co/MpCLm4Csb5

— Woke Mob For Taxing Billionaires (@Yastreblyansky) June 24, 2022

Sorry, make that "all or most".

Don't give me this garbage about "turning over decisions to the people through their elected representatives." That's a patent fraud.

— Woke Mob For Taxing Billionaires (@Yastreblyansky) June 24, 2022

For the Record: Prayers and Thoughts

A really awful Supreme Court decision handed down today in a church-state case from Maine, where a private-school voucher program to compensate for the lack of public high schools in rural areas forbade funding for "sectarian" schools in which religious instruction was part of the program:

It doesn't exclude them at all. They exclude themselves by refusing to go to public institutions. That's a nonsensical argument.

— Woke Mob For Taxing Billionaires (@Yastreblyansky) June 21, 2022

Yes, that's the question the justices should have argued, though they'd still have been wrong. Instead they went into the insanely radical territory of French's tweet. Have you bothered to look at the oral arguments? https://t.co/YV32NA3XX3

— Woke Mob For Taxing Billionaires (@Yastreblyansky) June 22, 2022

Opinions: Postscript

Ruta graveolens, rue, meaning "repentenance", though as Ophelia says "we may call it herb of grace o' Sundays." Photo via BardGarden.

I found a terrific piece of actual scholarship, as opposed to bloggy poking around in the evidence, in support of my guesses on the legal status of abortion in early modern England, in Carla Spivack, "To 'Bring Down the Flowers': The Cultural Context of Abortion Law in Early Modern England", in William and Mary Journal of Women and Law XIV/1 (2007), which took on the 2006 book by Joseph Dellapenna that may well have been Alito's basic source, Dispelling the Myths of Abortion History, and its assertion that

contrary to Justice Blackmun's historic analysis in Roe, "abortion was considered a serious crime throughout most of European history" and that "courts did... punish abortions before quickening during the Middle Ages."

On the contrary, Spivack shows,

Deep in the Dark of Texas

 

Wendy Davis, ready to run, via KTSA TV.

Maybe the most personally infuriating thing to me about the current flurry of state anti-abortion legislation is its open contempt for the rule of law: I mean these mean-minded, pinched and intolerant people, so ready to judge others for the slightest deviations from their own idea of propriety, passing laws that are flagrantly illegal according to settled law (as the members of a Supreme Court majority from Roberts through Kavanaugh and Barrett have maintained in their confirmation hearings). 

The "trigger laws" in something like 20 states from the previous wave were designed to take effect only after such a time as Roe and Casey are overturned, should that happen (I'm not convinced it will, at least this year, though they'll undoubtedly continue working to cripple abortion rights around the edges). The current wave, in Mississippi and Florida and Oklahoma and wherever else, is as if the law doesn't even exist; it's pretty much as if they passed a law legalizing slavery, or denying women the right to vote. Saying, as they do, that it might be constitutional soon, after the Court rules on the Mississippi law, doesn't cut the mustard: it's unconstitutional now, and they know it.

And the Texas law, the infamous SB8, is the worst of all, with its sly legalism in the provisions designed to prevent the Court from considering it—since the state is not enforcing the law, simply inviting bounty hunters to enforce it privately by suing anybody who assists in providing patients with abortion services in the state, for $10,000 in punitive damages, nobody has standing to sue the state, as decided just last week. 

Supreme Irony

 

NO WISDOM, NO COURAGE! IT'S UNBELIEVABLE HOW BAD SUPREME COURT JUSTICES ARE NOWADAYS! WHERE DO THEY EVEN FIND THESE PEOPLE?https://t.co/MXGQHgGCfL

— Yas Just a Lightweight (@Yastreblyansky) December 12, 2020

One more time: the conservatives on the Supreme Court are not our friends, but that doesn't mean they won't rule the right way when it serves their purposes. They have a good idea how to do it, for one thing: nominations master and Federalist Society Dark Lord Leonard Leo doesn't want to put people without a certain level of formal competence in these jobs, and he was never going to give us Rudy Giuliani or Judge Jeannine or Scott Baio, as might have happened if Trump himself were allowed to be in charge, or for that matter the kinds of clueless tyros Leo himself sometimes nominates as circuit judges.

And they were never going to overturn this election, because (1) there was nothing wrong with the election, and Trump's lawyers could give them no material to work with (Bush v. Gore was pretty terrible, but compared to this it was ready-mix concrete); (2) they don't owe Trump anything, as he seems to think they do, because it was Leonard Leo and Mitch McConnell that gave them the jobs, and any Republican president, as Steve was saying, would have complied; and (3) they don't have any particular reason to want him to keep being president, as there's not much he can do beyond embarrassing them with his continual hints that he bribed them—he hasn't done anything they want but nominate Federalist Society judges, to the point where they're down to about 23 vacancies in the federal judiciary out of a total of maybe 890 judgeships, so that while it may not be quite true that Trump has totally remade the judiciary, there isn't much more he'd be able to do in another four years. And they have little to fear from a Biden presidency, hobbled as he is likely to be by a difficult Congress (even if the miracle in Georgia happens). He certainly won't be pushing through a federal abortion rights statute, or taxing churches, or expanding the Court itself.

Covid vs. Fervid

 

Siyum haShas observances—the day everybody finishes the last page of the Talmud at the end of a seven-and-a-half year cycle—at the MetLife Stadium in New Jersey, 2012. Some religions really are fun, I get that. Via KVPR radio, California.

The Supreme Court's ruling in favor of two applications for "relief" from the threat of Governor Andrew Cuomo, one from the Roman Catholic Diocese of Brooklyn, one from the ultra-orthodox Agudath Israel organization and their Kew Gardens synagogue, that he might at some point go back to issuing restrictions on the number of people allowed to attend religious services in a given area, to 25 people for an "orange zone" and 10 people for a "red zone", even though they allowed the governors of California and Nevada to do the same thing in May and June, and even though it's not actually going to happen

In a letter to the court last Thursday, Barbara D. Underwood, New York’s solicitor general, said that revisions to the color-coded zones effective Friday meant that “none of the diocese’s churches will be affected by the gathering-size limits it seeks to enjoin.” The next day, she told the court that the two synagogues were also no longer subject to the challenged restrictions.

(yes, there's a new justice since June, and she's said to be very big on what they now call "religious freedom") is smelling as good as roast turkey to some of the usual suspects, and has got my proverbial goat:

For the Record: Song of Ben Shapiro

 

Wheee! 445 new infections per million in the US and headed for the sky, while France (which reached peak at 840 on Monday) is down to 340 (unfortunately not yet on the map). World in Data.

For heaven's sake people, it's not just his "little feelings". He's got criminal liability and no money. He wants a deal. https://t.co/U5u2DZlMnN

— Yas We Can #BidenHarris2020 (@Yastreblyansky) November 11, 2020

And here's Ben:

For the Record: Why the Affordable Care Act Will Survive

Photo by CQ Roll Call via Forbes.

 

 A heavy Twitter day, sorry. Some more arguments with friends:

There's too much Grassley in it. We need to get it rewritten by a committee with fewer Republicans.

— Ghastreblyansky (@Yastreblyansky) October 24, 2020

That I have never believed. Huge financialized corporations--hospitals, insurers--have a very big stake in preserving it, and finding for Texas would cause serious chaos https://t.co/kdHUAkVLFi. The Court cares more about them than it does about Trump.

— Ghastreblyansky (@Yastreblyansky) October 24, 2020

For the Record: Tenth Justice

 

Stephen Johnson Field of California, the last 10th Justice. Via Wikipedia.

By the way, y'all know who succeeded in packing the Supreme Court? Did you know that it actually happened?

She didn't fabricate a quote, she backed an incorrect interpretation.

BTW a better interpretation shows how much smarter Lincoln was than Trump, who shot his wad before Justice Ginsburg's funeral and gained zero votes pic.twitter.com/UcydNGChvo

— Ghastly Blyansky (@Yastreblyansky) October 9, 2020

It was Congress that established the 10th seat (partly to help administer the newly established 10th Circuit of California and Oregon, but partly to rebalance the overly conservative Court of Dred Scott CJ Roger Taney).

— Ghastly Blyansky (@Yastreblyansky) October 9, 2020

Later, after Taney's death, Lincoln replaced him with a more "leftist" Justice, his Radical Republican Treasury secretary Salmon P. Chase as CJ.

— Ghastly Blyansky (@Yastreblyansky) October 9, 2020

If Biden expands the Court, I would expect it to be after the style of Lincoln and Obama: only with a push from Congress, and in all probability naming a conservative to the new seat (a NeverTrumper, hopefully not approved by Federalist Society but no leftist).

— Ghastly Blyansky (@Yastreblyansky) October 9, 2020

But replacing Thomas or Alito, if that turned out to be possible (those guys are always spreading the story that they'd like to retire, but they never go through with it) with somebody more fun, and maybe reverting to nine justices when the crisis is over, as happened in the 1860s. In any case I really wish it would happen, and your sacred historical authority is right here, for your reading pleasure. They did this thing, and it didn't destroy the Republic. It didn't even change it as much as one might like.

Triliteral Commission

Today, President Trump nominated Judge Amy Coney Barrett to the Supreme Court — a jurist with a written track record of disagreeing with the Court’s decision to uphold the Affordable Care Act.

Vote like your health care is on the ballot — because it is. https://t.co/TDBQOVLP4K

— Joe Biden (@JoeBiden) September 26, 2020

If there was an intersection between students of linguistics and conspiracy theorists, one of the things they could fantasize about would be a Triliteral Commission of people trying to dominate the world by spreading the use of three-letter short names for famous people like GBS, BHL, JFK and LBJ, and so on, which would account for Monsignor Ross Douthat, Apostolic Nuncio to 42nd Street, who's out today ("The Meaning of Amy Coney Barrett") rejoicing in advent of justice-to-be Amy Coney Barrett not as human being but as cultural symbol replacing the Notorious RBG—

if elevated to the Supreme Court, she will probably enjoy more celebrity than the typical justice. She’ll be more of an R.B.G.-style cultural symbol — as A.C.B., Glorious or Notorious — with her own distinctive, if considerably smaller fan base, plus a certain type of critic who regards her fecundity as threatening or irresponsible, her claim to any kind of feminism a cheat. (Obviously if she plays a role in changing the court’s abortion jurisprudence, the latter antagonism will be sharpened.)

And what she's going to be a symbol of is "conservative feminism":

More Prognostication

 

Pearl White shooting an episode of "The Perils of Pauline", via Palisades Interstate Parks Commission.

Really heartened to see the decision by Judge Lucy Koh in San Jose reversing the Commerce Department's crazy attempt to cut the 2020 census head-count off a month early. Not just because it means that in all likelihood we will get the most accurate count possible, but because it openly recognizes the bad faith and inadequate grounding of the original decision, clearly made under intense pressure from the politicals,

Justice Department attorneys have attempted to present speeding up the count as a way for the Census Bureau to meet the Dec. 31 legal deadline for reporting results in light of Congress not giving the bureau more time.

Koh noted, however, that explanation "runs counter to the facts."

"Those facts show not only that the Bureau could not meet the statutory deadline, but also that the Bureau had received pressure from the Commerce Department to cease seeking an extension of the deadline," the judge wrote in the order, which cites multiple internal emails and other documents the administration was required to release for the lawsuit. (NPR)

and characterizing it as "arbitrary and capricious".

In this it goes along with Chief Justice Roberts's decision on the DACA program, which made the same complaint about the Trump administration's attempt to curtail the program, upending hundreds of thousands of lives for no real reason, or rather no real reason the administration was able to express. This is an important point to remember: while we often think of tyranny in terms of cruelty, but the element of arbitrariness—the tyrant doesn't need to offer a reason for anything he does—is equally important and always has been to the discussion, arbitrariness as opposed to rule of law. 

We can't expect Roberts to be concerned with cruelty, he's absolutely a Republican, but we can hope he will oppose arbitrariness, because it's bad for business. This is my take on Roberts, anyway, ever since his original 2012 decision on the Affordable Care Act, in which poor people in the states whose governments objected to expanding the Medicaid program were thrown under the bus but insurance companies and healthcare providers were preserved: he maintained the parts of the act that provided stability and profitability to the giants and their shareholders, as long as it didn't involve a lot of taxpayer dollars, though in a tricky way that would encourage Republicans to keep working on a "repeal and replace" project.