Thursday, June 30, 2022


"She] said that I wanted guns at my rally," he continued. "I didn't want guns. I had to speak too. I didn't want guns."

Speaking As A Student…

...of textual analysis and interpretation (exegesis) across three disciplines (literature, law, biblical studies) , as well as philosophy and theology, I can say with some authority that I always thought “textualism” in legal analysis was crap. It’s so far behind the praxis of even literary analysis as I was studying it 44 years ago it’s just farcical to speak of it seriously. Textual analysis, literary analysis (in all its schools), exegesis, all rest on a premise of making an interpretation out of an analysis. But it is understood that interpretation is itself subject to interpretation, and all interpretations have their validities; or at least have to be considered and examined.

Textualism in legal analysis is a way of stifling examination by declaring the preferred argument to be the “right” interpretation, and defending that conclusion by appealing to the text as if such an appeal was objectively correct. It’s the appeal to objectivity that is the fundamental problem. That’s a 19th century posture which no modern school of analysis supports (not even science), Modern legal analysis clings to it even though it’s not the heritage of the common law or the history of legal reasoning.*

One of the bedrocks of legal analysis is the "reasonably prudent person."  This imagined creature, much discussed in jurisprudence and even case law, is not meant to be a purely objective observer or even creature; but a human being placed as centrally as possible in the situations presented by the law, and reacting to/understanding the reaction to, those situations.  So in a fraud case:  would a reasonably prudent person be defrauded, i.e., misled, by the alleged fraud?  Would they rely on the misrepesentations to their harm?  Would they expect the premises to be safe, only to be injured by their condition (the torts arising from premises liability).  It's a standard of understanding that tries to understand the situation, and the expectations the law can place on persons, from the point of view of an ordinary person of "reasonable prudence."  Not too stupid and gullible; not too smart and clever.

Textualism leans more toward the subjective interpretation of the judge/justice doing the analysis.  When the text alone is the guiding standard, what is the text, and how is it understood?  There are decades of discussion of this very subject in literary and even philosophical circles.  Literary analysis alone examines a text from psychological positions (primarily Freudiand and Jungian); from standards of cultural and historical sitatuations; from the very concept of a "text" and the use of language both as a tool of expression and of interpretation.  Legal textualism is much closer to:  "well, we know the words, and we know what they mean, so we can decide how this law should apply, or should have always been applied."

It's practically a reductio ad absurdum.  And perfectly indefensible outside the cloistered world of judicial review.  Which is not to the credit of judicial review, or statutory interpretation.

In other words, it's no wonder textualism in the law is a stricture that applies only when it suits the ideology of the judges wielding it.  That's all it was ever for: a ready-made argument to slap on any ruling to justify the conclusion.  Not as guidance to understanding the law or the ruling or even how to apply it in future cases where the facts can alter the outcome; but just as a shield to protect the preferred result long enough to impose it.  It was already a "get-out-of-analysis-free" card.  Scalia himself applied his form of textualism, "originalism," as it suited him.  He hung it on a hanger like a suit of clothes, wearing it only when the occasion warranted; otherwise leaving it in the closet when he didn't need it.  His progeny (Thomas and Barrett in particular) took him more seriously, and wear the suits for all occassions. But it was never more than "I can't get the result I wanted this way, so I'll get it that way" method of reasoning in the first place.

Now it's just hard, if not impossible, to ignore that.

*There are well-established standards for constitutional and statutory interpretation.  Textualism and its progeny (such as "originalism," which is greater load of crap than "textualism") abandons those, in the main, for a "new and improved" standard of analysis which is neither new, improved, nor demonstrably analytical.  And it is as objective as personal preferences in food or music; in other words, not at all.

What Hath Got Wrot

I'm sure there's a moral issue there somewhere. For the life of me, I can't see the moral purpose in imposing it on the woman. For now. And in the Old West:
One example discussed was what to do if someone’s water breaks very early into the pregnancy. This could cause an infection, and the fetus is unlikely to survive, Phillips said. 
Before Roe was repealed, doctors would typically perform an abortion and other treatments to keep the patient healthy. But under the Texas trigger law, physicians would be faced with a conundrum, she said. When is the patient sick enough to warrant lifesaving care? Is it right away, since doctors know that the patient will get an infection that could complicate other care or put her safety at risk? Or does the doctor first have to let the patient reach that point to avoid legal liability? 
There are also times when doctors perform abortions because they know a pregnancy will not be successful and the baby would die after being delivered, Phillips said. But under Texas’ laws allowed after Roe was repealed, pregnant people would be forced to deliver. 
“That’s a very emotionally devastating experience,” Phillips said. “And we know Texas does not have adequate mental health services.” 
Baird was one of roughly 2,200 people attending the AWHONN conference just outside Denver. She was sitting in a board meeting Friday morning when the Supreme Court announced its decision to overturn the law. With Roe’s end, nurses anticipate an even more difficult world for their patients who face high-risk pregnancies in which the mother or fetus’ survival is in danger. Doctors and nurses will face even more difficult decisions about when to intervene and recommend terminating a high-risk pregnancy for fear of criminalization. Birth rates will likely go up and Baird fears maternal mortality rates will follow, she said. The United States has the highest maternal mortality rate of all developed countries, with significant racial and ethnic disparities. Texas has among the highest pregnancy-related deaths in the nation.


Yeah; nothing is ever that simple.

I do like the consequence that women will have to be near death before we can allow the life-saving treatment. We can’t keep people from having guns because they are “crazy,” either. Because until they shoot a half-dozen people, they aren’t crazy enough to not have a gun. Until the woman is dead, was her life really in danger?

Maybe we should focus on people, instead of on abstract ideas. 

Run For The Border

Alright, let's talk about this a second:
In April, Gov. Greg Abbott ordered state police to inspect every commercial vehicle entering Texas through a port of entry, saying the painful step was needed because the Biden administration was not doing its job to secure the border.

Drug cartels, Abbott said, were using “dangerous commercial trucks” to smuggle “immigrants, deadly fentanyl and other illegal cargo” into the state. The “enhanced commercial vehicle inspections” at the border caused hourslong delays at the inland ports, essentially grinding trade with Mexico to a halt and costing Texas businesses millions in losses.

After a week and a half, Abbott ended the inspections, announcing what he called historic security agreements with governors from border states in northern Mexico that he said would slow the flow of drugs and immigrants across the border.

But three months later, in a harrowing reminder of the risks migrants are taking to enter the country, authorities on Monday night discovered an abandoned tractor-trailer in San Antonio that contained the bodies of 46 dead migrants — another five died after being transported to local hospitals.

To immigration experts, the astounding loss of life inside the same kind of commercial vehicle Abbott had targeted in his inspections illustrates just how difficult it is to stem migration into the country, even as he has spent the last year pouring billions of state dollars into securing the border.

“Every data point we’ve seen about migration into Texas from Mexico shows that migrants are getting to the border in the same numbers as before,” said Adam Isacson, a regional security expert at the Washington Office on Latin America. “There’s no numerical evidence that it’s had any numerical impact on migrant flows.”

U.S. Customs and Border Protection agents had more encounters with migrants on the southwestern border of the country in the month that followed Abbott’s mandated vehicle inspections and agreements with Mexican governors. The agency reported 239,416 encounters in May compared to 235,478 encounters in April, when Abbott announced his new border security efforts. In March, the agency had 222,339 encounters.

You'll recall Abbott stopped that practice because it was costly, ineffective, and was slowing commercial cross-border traffic to a standstill, threatening both the Texas economy and the U.S. economy.  He did "close the border."  For 10 days.  And his officers found exactly: nothing.  The effect was nil.  Border Patrol encounters reflect either caution for a brief period, or seasonal movements.  Migrants coming from south of Mexico tend not to read the news on the way, and take months to get here, so it's not unlikely encounters with Border Patrol come in waves unrelated to a state policy rescinded 10 days after it was announced.  Or they just bided their time for two weeks.

Turns out smugglers aren't that stupid.

In case you forgot about Operation Lone Star: It's a human issue, too: All too human:

Trust The Media focus on the least important aspect of Hutchinson’s testimony, while ignoring the fact her testimony was that she was told the story by two people who were in the car.

So: were they lying then? Or will they lie under oath? I mean, their credibility won’t rest on hers.

All news is gossip. Prove me wrong.

Wednesday, June 29, 2022

Since I Brought It Up

Let's bring a little more light to this dark corner: Yeah, there's always the problem of reporting based on "she said/Anonymous said." But what about denying the substance, rather than the details? Always consider the source (who is not necessarily Ornato, but reportedly is Ornato-adjacent). Because an anonymous source threatening to "challenge" Hutchinson's testimony is not the same thing as proving she lied under oath: Whether or not Trump was that petulant and violent, he certainly wanted to go to the Capitol, to have his Mussolini moment. Trump hasn't denied it, "Anonymous" doesn't deny it.  That simple, unchallenged fact,  connects with Hutchinson's testimony that Cippolone, in her presence, told Meadows such an act would violate all manner of criminal laws, and was "insane." Yup. If they're gonna testify, it's without boundaries as to what they saw. There is no criminal exception privilege, even for SS agents.

Even Jonathan Swan, who I presumed should know better, is swallowing this shallow and barely fleshed out "anonymous" report hook, line, and sinker:
And no, it is not "second hand evidence."  It is what she was told by two different persons with knowledge of the incident.  We should expect better than this kind of "analysis." Gauntlet thrown. This is exactly where the discussion should be, and no further.

Devil's Advocate

 If I make the statement here on my blog that the "peaceful transfer of power" in Presidential elections rests on an assumption of the legitimacy of the election process, I am offering an opinion, and I'm not likely to get visited by the FBI for my seditious conspiracy tendencies.

After all, I would argue, it does.  That's why we have the 12th Amendment and the Electoral Count Act; IMHLO (both were responses to Presidential elections, and efforts to make them at least appear to be more legitimate).

But if General Flynn had offered that statement as a response to the question everyone is so upset about, would he be in the same position as me?  Or could it be interpreted by prosecutors as an admission against his interests in a criminal case for seditious conspiracy, or some other criminal charges?

I submit the latter is much more likely.  Change the facts, change the outcome.

Popehat's analysis rests on several unknowns which create assumptions.  The primary one is that Flynn would have said simply "Yes" or "No."  My hypothetical statement is not as blunt as that, but could be construed that way by prosecutors bent on charging me with a crime.  They could legitimately use that statement from my blog against me in court; but why should they be able to force me to say it from my mouth, arguably out of context and distorting what I originally meant?  The entire basis of due process and presumption of innocence is that I don't have to actively aid in my own incarceration.

The other issue is that Gen. Flynn was not testifying in court.  A trial judge may well have decided Flynn's potential (he wouldn't have answered yet) response to that question was not covered by the right to not self-incriminate.  After the answer, an appellate court might decide differently; or agree with the trial court.  That's the way the system works.

But Flynn was before a Select Committee of Congress, and his statement is only being presented in the court of public opinion.  There are no appeals there, and precious little cross examination or instruction from the bench as to how the questions raised are to be scrutinized.  So, again IMHLO, the Committee done Michael Flynn dirty.  They are using his exercise of his Constitutional rights against him.

Now, the question of the legitimacy of the election is one of Trump's key arguments.  This is not to say it is in any way a valid one. His belief that the election was illegitimate does not justify his illegal and extra-legal actions as POTUS.  Flynn may be of the opinion that the peaceful transfer of power depends on the legitimacy of the election, but that doesn't make him the arbiter of that legitimacy.  When the Court handed down Bush v. Gore, Al Gore accepted the legitimacy of the court system.  What he personally thought of the Court's opinion (the legal one, I mean) was irrelevant, and he knew it.  Had Gore refused to accept the Court's decision, that might well have been criminal; but he didn't do that. It may be irrelevant what Gen. Flynn thinks about the legitimacy of the 2020 election; or it may be an element in a criminal charge, based on his actions.  So it isn't as simple an issue as:  "Is his answer 'yes'? Or 'no'?"

And whether he properly invoked his rights is legitimately an issue for a court of law.  But none of us are even playing one on TeeVee.

Of Fools and Professionals

Lawyers shouldn't analyze legal matters from afar. Mental health professionals (and lawyers, who in this matter are mere laypeople) shouldn't diagnose mental health issues from news accounts, either. If you go to a medical professional for a second opinion, you expect an examination and a diagnosis, not just a:  "Well, I read about it in the news, and I don't think you're getting the right treatment at all!"

Sounding off on the mental state of public figures you only know from the TeeVee screen is just expressing an opinion on what you've been told; but with the imprimatur of some elevated authority for that opinion. It's unprofessional, just like lawyers who opine on some other lawyer's case (you never know as much as the lawyers working the case know, and you aren't responsible, professionally or personally, for the outcome). 

Even I think Trump has criminal liability exposure from what was said yesterday, but I'd never leap from that to a pronouncement as a lawyer that he's: "Guilty! Guilty! Guilty!"  Mark Slackmeyer could say that about Nixon (and I think he was right), but Mark Slackmeyer was a cartoon character radio announcer.  He had no more expertise than what Garry Trudeau put in his speech ballon.  Criminal guilt comes from a criminal trial, not from some lawyer with an opinion.  A mental health diagnosis should be on the same basis.

Outside the comic strip (and Walt Kelly did much the same thing to Tailgunner Joe, so there was precedent), it's rushing in where angels fear to tread.

Except That's Not The Part He's Denying

Nor is it the part the Secret Service is anonymously denying.

And the first thing Cassidy Hutchinson said in live testimony yesterday was that she spoke to Giuliani before Jan 6 and he said Trump was going to lead the crowd into the Capitol on that day, and Trump was going to be "big."

As they were heading to Giuliani's car, he asked her if she was "excited" for January 6, she testified.

When she asked what was happening on that day, Hutchinson testified that Giuliani "responded something to the effect of, 'We're going to the Capitol,'" Hutchinson said.

"'It's going to be great. The president's going to be there. He's going to look powerful. He's going to be with the members. He's going to be with the senators. Talk to the chief about it. Talk to the chief about it. He knows about it.'"

That was on January 4th.  That's what all the comparisons to Mussolini are based on today.  Not just the car ride, but what Giuliani said ahead of time.

Nobody is denying Trump wanted to go to the Capitol; not even Trump.  Who am I to do it for him?

So Here’s The Thing About Privileges

You either have ‘em, or you don’t.

You know the line from Miranda TeeVee warnings: “Anything you say can and will be used against you in a court of law.” After that, you can’t answer questions and then decide you don’t want to answer other questions, and claim your silence can’t be brought up in court.

Put up or shut up, is the basic rule.

So when you see Michael Flynn pleading the 5th as to the peaceful transfer of Presidential power, it’s not an admission of anything. He’s preserving his privilege against self-incrimination.

Anything you say to police can and will be used against you. The police investigate and prosecute crimes. They aren’t interested in “truth” (whatever that is), they are trying to make a case. If what you say to them can make that case against you, they’re happy to hear it. And what you think is innocuous, they can easily interpret as criminal. It’s what they do. 

The 5th amendment guarantees you don’t have to help them.

A witness subpoenaed to testify can refuse the subpoena and fight it out in court, or can plead the 5th. That video of Flynn is what the latter looks like.

I’m quite sure Michael Flynn is as mad as a bag of bees. But that doesn’t mean he has to put his head in the noose anymore than I do; or you do.

We all think the investigators work for truth and Justice; but abstract ideas are lousy employers. No, those government agents work for conclusions, and will always take the shortest path to get to one. That’s quite a different telos from what we imagine it to be.

Tuesday, June 28, 2022

That Was The Day That Was

But...but...but...the hearsay! A lot of commentary on NPR about the 25 year old woman with more spine (and balls) than her boss. Or Trump, implicitly. Especially how she was "disgusted" with what occurred on Jan. 6th. Obviously the Deep State turned her. Right? Goes to character and fitness for office, Your Honor! Gotta admit my favorite part was about Trump trying to grab the steering wheel (from the back seat! Can that asshole even drive?) and then choking the head of his Secret Service detail. That's the kind of story that takes no explanation, and doesn't offer much in the way of extenuating circumstances. Besides proving he really wanted to lead the crowd into the Capitol, since Pence obviously wasn't gonna do the job. He also watches TeeVee: Not really the defense he imagines it to be. Combine that with attacking his own driver for not going to the Capitol (and just replay that scene: what is he, 10 years old?) and you conclude he wanted to lead an armed crowd into the Capitol to do what Mike Pence wouldn't. And Giuliani and Meadows were down with it, because came the dawn of Jan 7, they're both asking for pardons because: Ooops! That didn't work!

This ain't Watergate.  Small children can understand this story.
Until he does, he's just a fuckin' liar.

The Jan. 6 select committee has interviewed the top Secret Service agent on then-President Donald Trump’s protective detail during the Capitol attack, according to three people familiar with the probe.

I've yet to see this Committee make a statement, or ask another witness to make a statement on what she/he was told, that wasn't corroborated by other witnesses.  If Engel didn't confirm that story, I don't think they'd have asked Hutchinson about it.


Lord help us all!
Bret Baier and I agree on something! It's a sign of the End Times!

Oh, I Think We Can

Even FoxNews is gobsmacked. On the other, other, satirical hand: I am a little curious about how much "good graces in Trumpworld" are worth, even in the "Trumpworld" market. Because Trump's loyalty all runs one way, and he can turn you into a liar and leaker who he never knew at the drop of a hat.

I am a little concerned that our frame of reference for reality in the West Wing is Hollywood Mafia movies.
Well, that's just because the future is impossible to predict! I still want my goddamned flying car! Alright, that is a frame of reference shift I did NOT see coming! The real change in frame is the death of the Voting Rights Act; all we're doing now is waiting for the funeral, expected shortly. 15th Amendment, we hardly knew ye (some amendments are more sacred than others).

Your Cousin From Naples Will Be There

Playing One On Twitter

Jonathan Turley doesn't know jack shit about this, which makes you wonder why he's opining as if he does.

The testimony was that Trump was told they didn't have the clearance to go to the Capitol, they had to return to the West Wing.  The POTUS is not the ultimate power who does as he pleases.  He is the Head of State. The responsibility for his security does not fall on him, but neither can he push it away so he can go to the mall, if he wants to; or to Coney Island in the summer.

It's really not that complicated, and I don't even have to pretend I know what the law is supporting my argument.  Although I'm quite confident it's there, or the Secret Service is virtually toothless.

Holy Shit 💩

There's a Go Fund Me account to pay this guy to punch Trump in the face at that moment. 'Course, first we need one to build the time machine.... It's also all they've got. Well, it's good for the narrative. Meanwhile, how you know it's bad: Her office was steps away from the Oval Office in the West Wing. She testified that Giuliani told her Trump was going "to be big" on January 6th, and big things were going to happen at the Capitol that day. Why was Rudy talking to a "flunky"? I'm only surprised FoxNews didn't mention "hearsay." In our beginning, is our end.

The Theologian In Me…

...thinks this (too) is a terrible use of prayer. The “Our Father,” after all, is a prayer of humility. It’s a prayer offered voluntarily, not under compulsion. It isn’t “magic words,” that compel salvation or piety. Spoken outside a community of faith they may not even make sense. Spoken within one they may mean one thing to one community, something else to another. The universality of the King James Version can make it just sounds. I mean, who uses “art” as a form of the “to be” verb anymore?  Is it the words that matter? Or what they mean? The former explanation is just magical thinking; the latter is much closer to wisdom. But "what they mean" depends on what they are, doesn't it?

We'll consider that question in a moment.

Any coercion used for prayer, is a terrible use of prayer. And yet, a fine example of the distinction between wisdom, and religion. Try to imagine wisdom being coercive; and yet, religion?

Wisdom is not distinct from religion, nor should it be. But coercion is the wrong direction from wisdom. It’s away, not towards. 

Added irony:  Matthew 6:5-15 is Jesus instructing his disciples on how to pray.  Do it in private, he says, not in public like the "phonies."  His advice on prayer leads quite smoothly into how to pray.  The answer to that question is:

Instead, you should pray like this:

Our Father in the heavens,
your name be revered.
Impose your imperial rule,
enact your will on earth as you have in heaven.
Provide us with the bread we need for the day.
Forgive our debts,
to the extent that we have forgiven those in debt to us.
And please don't subject us to test after test,
but rescue us from the evil one.

Matthew 6:9-13, SV

Just that shift in the line about "debts" clarifies the meaning of the KJV, which, in its day, was the common tongue.  It was also Early Modern English, a language of English none of us speak anymore. The line puts us in communion, in common purpose, with everyone else.  "Lord, when did we see you?"  "When did you not?," is the answer.  To the extent you forgive, so will you be forgiven.  Oh, not by God; by others.  Step away from the circle of judgment.  Step out of the cycle of debt and recompense.  Take these words as directions for how to live (wisdom), not just words reflecting doctrine and soteriology (religion).

So, as I say, which version today (KJV, SV, other) is "orthodox"?

And since we're doing this in the context of recent Supreme Court decisions, one has to acknowledge this pretty much flows from Gorsuch's majority opinion on the praying coach:
Allthough I will say it's my understanding Islamic prayer is either corporate or private, and seldom, if ever, done on the 50 yard line of a football field, after calling TV stations to come watch.

So, you know, there is that.

I Can’t Even…

All those years I was told Scalia was “the smart one.”

Notes Toward A Conversation

(This grew, or more accurately, accreted over time.  I was going to try to shape it into something sensible, but then I gave up.  Consider it another entry on the theme of "wisdom" v. "religion," and how we should restore the former to, and so elevate and improve, the latter.  Then again, consider this entire blog a commonplace book; or a notebook of my scribblings.  Whichever helps it make more sense.) I get the legal argument here, and find it sound and well-reasoned. But I’m also interested in the doctrinal/theological argument (made by Blackman) that only “traditional” religious believers are “real” believers.  Which, as Schwartzman points out, is not a legal tenet or element of analysis at all.  But it's very disturbing in its own right.

So this is not the core of Schwartzman's argument: But it is the part that's most interesting to me.

It's actually a commonplace in the public narrative about religion in America.  "Real" believers align with the Southern Baptist Convention or Jerry Falwell or Billy (if not Franklin) Graham.  Christians in particular (the argument in the tweets is about Jews and Judaism; I'm not slighting that, just speaking from my knowledge/experience) are treated as "legitimate" so long as they are "traditional."  So the US Conference of Bishops gets more credibility than, say, Sr. Helen Prejean, who is both more "liberal" and, to boot, a woman.

"Liberal" denominations like the United Church of Christ aren't even on the radar.  Fights over recognizing gays get attention (it has flared up again among the Methodists, I heard recently.  A news story, not some insight from a friend in that church).  Acknowledgement of the legitimacy of gays as people, as in the UCC, gets no attention at all (no dog bites man story to report, eh?).  But denominations like the UCC also aren't quite "legitimate," because they don't practice some form of discrimination against others or just "the world."  As an example of the latter:
You can find the background for that story here.  I just picked it up because of the language of "secular combat rhetoric."  There is a place for the language of the church in such discussions; especially in reminding everyone involved they are sisters and brothers in Christ.  But drawing a sharp line between "church" and "world" and wielding that distinction like a club is very characteristic of "traditional" religious practice, even when its not traditional Christianity.

"Traditional," in other words, actually means "aligned with the world."  The pastor who sparked that controversy in the SBC was speaking against some SBC pastors and churches which lined up behind Trump, and put fealty to Trump above, in his perception, fealty to the Gospel of Jesus Christ.

However, in the world "traditional" means "aligned with Christianity."  But only certain kinds of Christianity:
I especially like the idea that the legal concept of "substantial burden" was created in the context of Christian faith, and Jewish faith is different because it "does not actually impose any requirements on congregants, but instead only offers aspirational principles." I don't even know where to start with that.

And, of course, "free exercise of religion" only means the religion of the "observant and orthodox."  What they observe, or are "orthodox" about, is assumed to be only "conservative" Christianity, with an emphasis on hell, damnation, and salvation, after which your primary task is to "save souls." Oh, and live a "Godly life" according to Victorian or even racist principles.  Jerry Falwell was very concerned about preserving the "Moral Majority."  He was also very concerned about maintaining white supremacy.  So go ahead, tell me I'm wrong.  Being anti-abortion is presumed to be the "orthodox" Christian position.  But orthodox according to whom?  Few of the mainline Protestant denominations are as anti-abortion as either the Catholic church or most fundamentalist denominations.  Which group is "orthodox," and which is "heterodox"?  It's kind of like Annie Dillard's observation that "far away" and "off the beaten track" are entirely a matter of perspective.  What you consider "off the map" is what someone else considers "home."

And again, the question of orthodoxy:

And when you pray, don't act like phonies. They love to stand up and pray in houses of worship and on street corners, so they can be seen in public.  I swear to you, their prayers have been answered! When you pray, go into a room by yourself and shut the door behind you.  Then pray to your Father, the hidden one. And your Father with his eye for the hidden will applaud you.

Matthew 6:5-6, SV*

This question of orthodoxy is a vexing one.
And the primary question is:  who is the Supreme Court to decide it? Granted, the distinction there is a theological one, but that’s the point. What’s considered “orthodox” is often defined by the world’s understanding, and that’s the wrong yardstick. In this case, it’s not just that Gorsuch’s opinion denies the facts of the case, it’s that the coach was being orthodox in the eyes of the world, but wholly unorthodox, even contrary, to the Gospel. But which is approved by the court as a religious practice? And why is the court approving at all?

Professor Vladeck asks as an observant Jew. I ask as an observant Christian. We are asking the same question, because it't not really an issue of which religion (Judaism, Islam, Christianity, etc.). It's a question of which orthodoxy? Who decides that?

*There is a great deal of wisom there; but not much support for "religion."

You Read It Here First

Thomas, one of the most conservative justices on the court, wrote that "in future cases" also involving privacy "we should reconsider."

Thomas cited Griswold v Connecticut, which enshrined the right to contraception in 1965; Lawrence v. Texas, which struck down laws penalizing same-sex relationships in 2003, and Obergefell v. Hodges, the 2015 ruling protecting marriage for all.

According to Greenhouse, there was one past ruling that Thomas curiously failed to mention.

"I think we disregard what [Justice Thomas] has to say at our peril," Greenhouse said. "I'll just say, in this list of Supreme Court precedents based on the notion that the due process clause has some substantive content of liberty and equality, he left out on -- I mean, he named contraception, he named LGBTQ rights, he named same-sex marriage -- what he didn't mention was interracial marriage."

Greenhouse was referring to the Loving v. Virginia decision in 1967, which ruled that laws banning interracial marriage violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the U.S. Constitution. Thomas, who is Black, is married to Ginni Thomas, who is white.

"It's as if the court has taken a kind of Roto-Rooter to constitutional law as we've known it in modern times," Greenhouse added.

The only opinion that affects Thomas (who probably lives in Virginia, ironically) is the only one he wants to keep sacrosanct.  There is no basis for that except Alito's rebuttal to Thomas in Dobbs, that "abortion is different."*  So, apparently, is mixed race marriages.

You realize we don't even have the conceptual framework for this stuff anymore.  Race?  Are we really going to legally recognize that distinction again, in the most pernicious way possible?  What about who's responsible for an abortion?  Texas law won't criminalize the woman (it used to; that's how Roe got into court in the first place), but it will try to criminalize everyone else it can.  And some want to make it a RICO violation:

Yes, it is silly (and yes, Popehat is also indicating it could happen). But it also indicates the desire to criminalize any activity or person even remotely or conjecturally related to the abortion (so persons in states where abortion is legal. Somehow the resident of a non-abortion state, say, Texas, will be engaging in criminal activity in New Mexico, where abortions will remain legal, even if it's just acting as an Uber driver to the airport. Which is kind of interesting, since the activity is in New Mexico, where it's legal. But that brings us back to Loving: the couple was married legally in another state, but when they moved to Virginia, they became criminals. Are we really going to go back to that state of criminal prosecution? What is legal here is criminal there, so watchyerass? Will the country accept it? (Or even back to the idea that state's don't have to recognize marriages from other states they don't like?  Which was really the issue in Obergefell.  I don't see any state rushing to criminalize marriages because they don't like who's marrying whom.)*

Same question with Obergefell, which really is not fundamentally different from Loving (except Justice Thomas says so, by silence at least).  And Lawrence, where the State of Texas (again!) had criminalized same sex...well, sex.  As far as I know that sodomy law is still in the Texas Criminal Code.  But who's going to enforce it if Thomas has his way?

*Yes, minors create an exception everyone is going to recognize (hopefully.  I understand Tennessee wanted to drop the age of marriage to 13.).  Minors are a special category protected by law from abuse and from the consequences of their own decisions.  Most of the major ones they can't make (buying a car, entering a contract, marriage) because of their age.  That's what being a "minor" is, by and large.

Except, I guess, in Oklahoma:
And while I've still got you here speaking of where you heard it first, Sen. Johnson agrees with me: the joint session was never in any danger of adjourning over the electors presented, or not presented, to them. Much else of what he says is just random bullshit, but the kernel of truth is there: that "plan" was never gonna happen.  It would take a vote of both houses, and the Democrats were not going to vote for it, in either house. Mike Pence didn't have the power to blow up that joint session, even if he thought he did.

*Alito’s distinction is that abortion involves a third party, which is obviously a determination that life begins at conception. So legislating from the bench is cool? Regardless, marriage involves the imprimatur of the state, which means the rest of us. Pretty much the same people involved in a charge of murder, which is what critics call abortion, especially if life begins at conception. So the fundamental difference escapes me. Again.


So this is what happened:
Authorities received the first call about the truck shortly before 6 p.m. from a worker in the area who had heard a cry for help and went to investigate, McManus said. 
According to a law enforcement official, it appears people were trying to jump out of the tractor-trailer because some of the deceased were found along several blocks. The tractor-trailer had a refrigeration system, the official said, but it did not appear to be working. 
Many of the people found inside the vehicle appeared to have been sprinkled with steak seasoning, the official said, in perhaps an attempt to cover up the smell of people as the smugglers were transporting them. 
Authorities said the truck’s doors were partly open when they arrived; a body was outside the vehicle and the rest could be seen inside. The city’s fire chief, Charles Hood, said the survivors did not appear to have access to water and were too weak to exit the truck on their own. 
“We’re not supposed to open up a truck and see stacks of bodies in there,” Hood said. “None of us come to work imagining that.” 
Twelve adults and four children were taken to hospitals. They were hot to the touch and were suffering from heat exhaustion and heat stroke, but Hood said he was “very hopeful” that they would survive. 
With a few days left in the month, National Weather Service meteorologists say June 2022 has already become the warmest June on record in San Antonio. 
The average number of days with temperatures of 100 degrees or higher in San Antonio is nine, according to historical data from NWS dating back to 1885. This year, San Antonio has had 16 days with temperatures of 100 degrees or higher, NWS meteorologist Bob Fogarty said. 
McManus told reporters he was not confident everyone who had been inside the truck was accounted for yet and that authorities still don’t have an indication of how many people in total had been inside the truck. He said the three people in custody were not found with the truck but declined to comment further. 
This is how the Governor of Texas responded: It’s like he’s barely a human being; or they are; to him, anyway.

The Veneration Of The "Founding Fathers" Comes Home To Roost

Michael Waldman, President of the Brennan Center for Justice, explained to MSNBC that the Supreme Court saying that states rights apply to an abortion but not to guns is a major issue for the Court.

"The two cases together say that some states can ban abortion but other states and they usually are other states, can't regulate guns and gun violence within their states," said Waldman. "It's a very different approach. The ruling struck down New York's law. A law that goes back to 1911. Saying that you can't carry a concealed handgun in New York City, in a crowded place like that. And it is the first time in a dozen years that the Supreme Court has made a major ruling on the Second Amendment since it first said, and it was only back then in 2008, in 2010, that you had an individual right at all to have a weapon."

"But what's really significant about this case is not just what it will do in New York where there will be more guns and more violence and more crime as is expected in New York. But what it does nationwide, what the Supreme Court said is effectively you can't actually take public safety into account when you're making these gun laws. You can only look at 'history and tradition.' And Clarence Thomas wrote the opinion, used the history very selectively, but what it means is that hundreds of gun laws that have been upheld by the courts, Republican and Democratic judges, federal and state judges over the last 12 years, hundreds of those laws now will get challenged by the NRA and others saying you can't read the history right."

There's the question of ideology, front and center.  One wonders where "states' rights" and "laboratories of democracy" went.

"Again, I think it is quite clear that these laws respect individual rights and benefit public safety but it's a lot harder to know how courts and judges are supposed to scratch their heads and figure out this vague new standard. How do you find out what the history and tradition was way back in some imagined past time for these modern laws? It's not a way to run a railroad. It's not a way any other country that you know of makes decisions about protecting public safety."

I know the legal elements of the analysis of history are more nuanced than the loose talk in public discourse about the "Founding Fathers" and what "they meant," but it's little better than the arguments in these Supreme Court opinions.  Until 2008 there wasn't even a recognized individual right to have a weapon; and while some of the latest jurisprudence seems to be bent on reversing the extension of the Constitution to the states via the 14th Amendment, Thomas says here that the 2nd Amendment must be extended to the states, and must be followed in the absolutist fashion of his interpretation.

A primary example of a right the majority says has received appropriate respect is the right to free speech," the Slate report explained. "Throughout the opinion, Thomas says that the Second Amendment must receive the same due as the First. Thomas knows that the First Amendment does not provide unlimited protection to speech, that the state may regulate speech in all sorts of ways. So, he is not referencing First Amendment law to suggest that there are no limits on the right to keep and carry arms. 

I'm not sure why the 2nd must receive the same due as the 1st, while the 14th means whatever the hell the Court wants it to mean in the moment, and the 15th can't be enforced at all because "states' rights."

It's all just grab-ass and "We're the Supreme Court, fuck all y'all!," and then throw in some kind of nod to "history" or "what the Founding Fathers meant" or "just interpret the law the way we do!"  The Court is ignoring the parties in their cases, the impact of their rulings, even the fact they must provide guidance to the lower courts, seeing as they are the Supreme Court.

Shit, it's just turtles all the way down; and we're getting more and more mired in the mud.

Change The Facts, Change The Outcome

Or change the facts to suit the outcome.

Gorsuch says the coach "knelt at midfield" after games "to offer a quiet prayer of thanks."  Which seems innocuous enough, right? 

Alito says "a brief lull in his duties apparently[? There is an evidentiary record.  You don't know when or why he did this?] gave him a few free moments to engage in private activities."  Because of these "few free moments," what he was doing was done in "a purely private capacity."

Remember, children:  definition is everything.  

But did it stay that way?

Kennedy's practice evolved into postgame talks in which Kennedy would hold aloft student helmets and deliver speeches with "overtly religious references, which Kennedy described as prayers, while the players kneeled around him. 

It's probably an Oxford comma issue, but I'd really prefer "knelt" there.

Change the facts, change the outcome.  And the first question is:  who changed the facts here?  But we aren't through yet:

In September 2015, a coach from another school's football team informed BHS' principal that Kennedy had asked him and his team to join Kennedy in prayer. The other team's coach told the principal that he thought it was "'cool'" that the District "would allow [its] coaches to go ahead and invite other teams' coaches and players to pray after a game."

Private capacity?  Quiet prayer of thanks?  Lull in his duties?  Where did all that go?

That's the Supreme Court opinion.  The appellate court noted petitioner was just a liar:

Don't know where that record of the “deceitful narrative” went, either.  You'll also notice Judge Smith rides that point hard; very hard:

In his statement, Judge O'Scannlain omits most of the key facts in this case, reorders the chronology of events, and ignores pertinent Establishment Clause law, much of which has been in place for more than half a century.

Let me just quote a bit more extensively from Judge Smith's opinion:

Unlike Odysseus, who was able to resist the seductive song of the Sirens by being tied to a mast and having his shipmates stop their ears with bees’ wax, our colleague, Judge O’Scannlain, appears to have succumbed to the Siren song of a deceitful narrative of this case spun by counsel for Appellant, to the effect that Joseph Kennedy, a Bremerton High School (BHS) football coach, was disciplined for holding silent, private prayers. That narrative is false. Although I discuss the events in greater detail below, the reader should know the following basic truth ab initio: Kennedy was never disciplined by BHS for offering silent, private prayers. In fact, the record shows clearly that Kennedy initially offered silent, private prayers while on the job from the time he began working at BHS, but added an increasingly public and audible element to his prayers over the next approximately seven years before the Bremerton School District (BSD) leadership became aware that he had invited the players and a coach from another school to join him and his players in prayer at the fifty-yard line after the conclusion of a football game. He was disciplined only after BSD tried in vain to reach an accommodation with him after he (in a letter from his counsel) demanded the right to pray in the middle of the football field immediately after the conclusion of games while the players were on the field, and the crowd was still in the stands. He advertised in the area’s largest newspaper, and local and national TV stations, that he intended to defy BSD’s instructions not to publicly pray with his players while still on duty even though he said he might lose his job as a result. As he said he would, Kennedy prayed out loud in the middle of the football field immediately after the conclusion of the first game after his lawyer’s letter was sent, surrounded by players, members of the opposing team, parents, a local politician, and members of the news media with television cameras recording the event, all of whom had been advised of Kennedy’s intended actions through the local news and social media.

That highlighted bit is a rebuke to Justice Kennedy, who clearly seems to prefer his own facts over the ones presented in the trial record.  Appellate courts do not sit as finders of fact; they are to take the record before them as the facts to which the law must be applied.  I strain to find anything in this record which allows for a wholesale overthrow of precedent but, there we are.

When Joseph Kennedy was hired by BSD in 2008, his post-game prayers were initially silent and private. Kennedy v. Bremerton Sch. Dist. (Kennedy IlI), 991 F.3d 1004, 1010 (9th Cir. 2021). [That citation means this information comes from the trial record.  That's no small thing on appeal.] Over the ensuing years, however, Kennedy made it his mission to intertwine religion with football. Eventually, he led the team in prayer in the locker room before each game, and some players began to join him for his post-game prayer, too, where his practice ultimately evolved to include full-blown religious speeches to, and prayers with, players from both teams after the game, conducted while the players were still on the field and while fans remained in the stands. Id.
Was this noticed by the Supremes?  Yeah, I think so:

A reminder courts can pretty much do whatever they want once they toss the facts aside.

That picture is what Alito calls acting "in a purely private capacity."  I wonder how many of us could go down to mid-field after a school football game and offer a religious ritual?  Purely privately, you understand.

By the way, the record from the trial court, quoted extensively in Judge Smith's opinion (at the link in the tweet) shows the coach made a very public figure of himself to arouse support for his prayers at midfield.  One wonders how "private" the practice was at that point, when he used his position as football coach to challenge the school's reading of Constitutional law by way of newspaper ads and social media posts.  It seems "private" doesn't mean what it used to.  Well, after Dobbs, that was pretty much a given, wasn't it?

And yes, we're deep into the land of ideology v. legal reasoning:
One can even say we're leaving legal reasoning far, far behind.  As Justice Sotomayor notes, explaining sotto voce that this case is directly in line with the heinous Hobby Lobby ruling:

“The Court’s history-and- tradition test offers essentially no guidance for school administrators. If even judges and Justices, with full adversarial briefing and argument tailored to precise legal is- sues, regularly disagree (and err) in their amateur efforts at history, how are school administrators, faculty, and staff supposed to adapt? “How will school administrators exercise their responsibilities to manage school curriculum and events when the Court appears to elevate individuals’ rights to religious exercise above all else? “Today’s opinion provides little in the way of answers; the Court simply sets the stage for future legal changes that will inevitably follow the Court’s choice today to upset longstanding rules.”
Yup. That's today's lesson. It’s not a good one.