The Daily Parker

Politics, Weather, Photography, and the Dog

Ruling seasons begins

The Supreme Court began its early-summer ruling season a bit early this year, starting with an opinion from Justice Thomas (R) that will make it easier for the state to kill innocent people:

[The] opinion claimed that a law restricting the power of federal courts to toss out convictions in state courts prevents Jones from seeking relief. But Thomas’s reading of this law is novel — his opinion had to gut two fairly recent Supreme Court decisions to deny relief to Jones.

Before Monday, the Supreme Court’s decisions in Martinez v. Ryan (2012) and Trevino v. Thaler (2013) should have guaranteed Jones a new trial. Both decisions deal with what should happen in the unusual circumstance when someone accused of a crime receives ineffective assistance of counsel, twice.

In Strickland v. Washington (1984), the Supreme Court held that a conviction must be tossed out if defense “counsel’s performance was deficient” and if this “deficient performance prejudiced the defense.” This safeguard against constitutionally inadequate lawyering would be meaningless if people who received ineffective assistance of counsel at trial could not challenge that conviction, either on appeal or in some other proceeding.

Martinez and Trevino established that someone convicted of a crime must have at least one shot at challenging their conviction on the grounds that they received ineffective assistance of counsel at trial.

“The Sixth Amendment guarantees criminal defendants the right to the effective assistance of counsel at trial,” [Justice] Sotomayor (I) writes in the first line of her dissent. She continues that “this Court has recognized that right as ‘a bedrock principle’ that constitutes the very ‘foundation for our adversary system’ of criminal justice.”

Thus in Sotomayor’s mind, and in the minds of the two other justices appointed by Democratic presidents who joined her opinion, the purpose of a criminal trial is to determine whether or not someone is actually guilty of a crime — and to do so through an adversarial process where both sides are represented by lawyers who can present the best possible legal and factual case for the prosecution and the defense.

This is consistent with Thomas’s longtime position. As far back as Herrera v. Collins (1993), Thomas joined an opinion by Justice Antonin Scalia, which claimed that there is “no basis” in the Constitution for “a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.” At the time, however, Thomas was the only justice who joined Scalia in this view.

Scotusblog also has its doubts:

Thomas spent the first 11 pages of his 22-page opinion recounting the grisly facts of the murders the defendants were convicted of, extolling the states’ authority to enforce criminal laws, and emphasizing the importance of the finality of convictions. Finally arriving at the issue at hand, Thomas cited cases holding that defendants are generally held responsible for their attorneys’ errors, and noted that while that general rule does not apply when counsel is constitutionally ineffective, the Sixth Amendment does not guarantee a right to counsel at the post-conviction stage – therefore, at this stage, the defendants were “at fault.”

Justice Sonia Sotomayor, joined by Justices Stephen Breyer and Elena Kagan, dissented. Her opinion was striking, even for a justice who is known for passionate dissents. She called the majority opinion “perverse,” “illogical,” and said it “makes no sense.”

The dissent zeroed in on the court’s prior holdings that the procedural default rule only applies to defendants who are “at fault” for failing to raise a claim, and that a defendant represented by a constitutionally ineffective lawyer cannot be held to be “at fault” for his lawyer’s errors. This requirement underscored what Sotomayor saw as the core absurdity in the majority’s reasoning: “A petitioner cannot logically be faultless for not bringing a claim because of postconviction counsel’s ineffectiveness, yet at fault for not developing its evidentiary basis for exactly the same reason.”

The debate between Thomas and Sotomayor in Shinn has reverberations beyond the cases of Barry Lee Jones and David Martinez Ramirez. Sotomayor argued that the majority opinion “tellingly” relied on dissents in Martinez and Trevino to support its reasoning. While the conservative majority’s explicit overruling of precedent has recently captured the public’s attention (albeit through a leaked draft), the practice of citing dissents to “hollow out” past precedents has garnered less scrutiny. But Sotomayor’s opinion subtly emphasized the danger that practice poses for the legitimacy of the court’s decision-making. Noting that the court in this case “resuscitates” an argument “that previously was relegated to a dissent,” Sotomayor contended that the argument “is just as unavailing now that it has captured a majority.”

Finally, one procedural quirk is worth mentioning in a case all about whether death row defendants are “at fault” for the failures of their constitutionally ineffective lawyers. In Ramirez’s case, Arizona did not object to the evidentiary hearing in the district court and did not raise AEDPA’s bar on developing new evidence until the case reached the U.S. Court of Appeals for the 9th Circuit. Ordinarily, an argument not raised in the district court is forfeited. But here, in a footnote, Thomas stated that the Supreme Court has “discretion to forgive any forfeiture” and because deciding the issue would reduce the likelihood of future litigation, “we choose to forgive the State’s forfeiture before the District Court.”

We will no doubt see a series of rulings like this, shielding the state from its errors while making life much more random and unforgiving for people already at a disadvantage economically or socially. As I hinted yesterday, authoritarians don't accept dissent of any kind, no matter how obviously stupid their own positions. Thomas wants to live in the world of Inspector Javert and Brazil. So, clearly, do the other four Republicans on the Supreme Court, and for some reason in this case, the Chief Justice.

We're in for a decade or so of really bad judicial outcomes. Let's hope we can get the pendulum swinging the other way soon.

Spring, Summer, Spring, Summer, who knows

This week's temperatures tell a story of incoherence and frustration: Monday, 26°C; Tuesday, 16°C; yesterday, 14°C; today (so far), 27°C. And this is after a record high of 33°C just a week ago—and a low just above 10°C Tuesday morning.

So while I'm wearing out the tracks on my window sashes, I'll have these items to read while my house either cools down or warms up:

And finally, Ian Bogost feels elated that cryptocurrencies have crashed, particularly because he doesn't own any.

Margaret Atwood on the Alito draft opinion

Canadian author Margaret Atwood wrote The Handmaid's Tale in the 1980s, when the establishment of a theocracy in 21st-century Massachusetts seemed like science fiction. Today, she worries she might only have gotten the location wrong:

Although I eventually completed this novel and called it The Handmaid’s Tale, I stopped writing it several times, because I considered it too far-fetched. Silly me. Theocratic dictatorships do not lie only in the distant past: There are a number of them on the planet today. What is to prevent the United States from becoming one of them?

For instance: It is now the middle of 2022, and we have just been shown a leaked opinion of the Supreme Court of the United States that would overthrow settled law of 50 years on the grounds that abortion is not mentioned in the Constitution, and is not “deeply rooted” in our “history and tradition.” True enough. The Constitution has nothing to say about women’s reproductive health. But the original document does not mention women at all.

Let’s look at the First Amendment. It reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The writers of the Constitution, being well aware of the murderous religious wars that had torn Europe apart ever since the rise of Protestantism, wished to avoid that particular death trap.

t ought to be simple: If you believe in “ensoulment” at conception, you should not get an abortion, because to do so is a sin within your religion. If you do not so believe, you should not—under the Constitution—be bound by the religious beliefs of others. But should the Alito opinion become the newly settled law, the United States looks to be well on the way to establishing a state religion. Massachusetts had an official religion in the 17th century. In adherence to it, the Puritans hanged Quakers.

If Justice Alito wants you to be governed by the laws of the 17th century, you should take a close look at that century. Is that when you want to live?

I sure don't. Why do Republicans?

Just one or two stories today

Sheesh:

And finally, when I left for San Francisco on Saturday morning, it was 10°C and sunny. Here we are about 76 hours later and it's 30°C. We really don't have spring or fall here some years.

Monday morning round-up

According to my Garmin, I got almost 18 hours of sleep the past two nights, but also according to my Garmin (and my groggy head), few of those hours made a difference. I take some of the blame for that, but on the other hand, someday I want to stay in a hotel room where I can control when the air conditioner turns on and off.

Anyway, while I slept fitfully, these stories passed through my inbox:

And finally, good news for the Brews & Choos Project: Lagunitas plans to re-open their taproom later this year.

Who took a leak on the Supreme Court?

South Texas College of Law Houston Law Professor Josh Blackman sketches out a timeline pointing to a right-wing Justice's clerk as the likely source of the Dobbs leak:

First, where did the leak come from? Most people are presuming this leak came from someone with access to the opinion, such as a Justice or a clerk. That presumption is probably correct, but it is also possible there was some illegal exfiltration of the document. ... People who are fanatical about abortion may go to great lengths to support their cause.

Fourth, Politico got the scoop. Not the Washington Post or New York Times or WSJ or NPR. Or, perhaps other outlets had a copy of the opinion, but only Politico was willing to run it. I still think WSJ had the opinion last week, in light of their editorial. The Supreme Court is in worse shape than I could have imagined.

Josh Marshall draws lines between Blackman's dots:

[T]he rapid-fire follow-up reporting on John Roberts’ position on the Mississippi case, just hours after the Politico exclusive, made me think at the time that the leaked draft opinion wasn’t a one off thing. It seemed part of a larger breakdown of secrecy or on-going leaks tied to the Mississippi abortion case. You don’t come up with details about the Chief Justice’s position and arguments from internal deliberations on one of the biggest cases in decades in an hour and a half if you’re beginning from a cold start. Then this morning I found out about this Wall Street Journal opinion page editorial from April 26th in which they fairly transparently write about current Court deliberations in the Mississippi case, specifically that John Roberts was trying to pull an unnamed conservative Justice back from fully overturning Roe.

[W]hy the column in late April? And why the specifics? It certainly reads like the authors had an inside read on on-going deliberations and fears that Roberts might be in the process of sneaking a defeat from the jaws of victory.

It reads even more like that when you read the piece in the context of the subsequent leak.

Blackman is a big advocate for overturning Roe. But that’s mostly neither here nor there for our present purposes. What’s interesting is that he’s written extensively about previous cases when Roberts nudged the Court toward less right-wing decisions and cases where there were leaks and pressure campaigns trying to prevent him from doing so. So Blackman is something of an expert on this on-going pattern and history. He seemed to spot it from his first read of the Journal editorial. Indeed, if I’m reading his piece correctly he seems to think the Journal may well have had a copy of the Alito opinion too.

(Emphasis in original.)

So, some clerk in Justice Alito's (R) or Thomas's (R) office gave photocopies of Alito's first draft to a number of right-leaning outlets, and Politico published first. All of this to push the Court towards a more extreme position than Chief Justice Roberts (I) can agree with.

More Dobbs reactions

A day and a half after the unprecedented leak of Justice Alito's (R) draft opinion in Dobbs v Jackson, everyone and her dog has a reaction piece:

  • David Von Drehle in the Post warns that Alito's arguments in Dobbs, if accepted as the final majority opinion, would imperil many other rights based on privacy law: "[S]hould Alito’s draft opinion be affirmed by the court’s majority, there will be little to prevent states from enacting limits [on contraception] if they wish. Women will have only as much guaranteed autonomy over their childbearing as they had in 1868. Alito’s draft recognizes the rights of an hour-old zygote, but not of a 12-year-old impregnated by a rapist."
  • Jennifer Rubin concurs, saying the Court's "religion-driven mission" puts other settled law like Griswold v Connecticut and Lawrence v Texas in the crosshairs: "At its core, this Supreme Court’s right-wing majority seems eager to cast aside the restraints of precedent, making good on their supporters’ agenda rooted in Christian nationalism. In assuming life begins at conception (thereby giving the states unfettered leeway to ban abortion), Alito and his right-wing colleagues would impose a faith-based regimen shredding a half-century of legal and social change."
  • Josh Marshall calls bullshit on Alito's long-professed "originalism:" "Alito recognizes that there are interpretive frameworks that address new issues not explicitly referenced in the constitution. That’s in this decision. But he keeps coming back to “history and tradition” as what really seems like a separate basis of authority. Basically old school values. And lots of rights won’t make that cut."
  • Alex Shephard calls bullshit on Republicans trying to blame the leak for the Court's loss of legitimacy when, really, the activist Republican justices killed it: "There is a long tradition in conservative circles of finding every opportunity to claim victimhood. ... [But] the court’s legitimacy problems can, frankly be traced back to Bush v. Gore, if not earlier, when five Republican-appointed justices decided a presidential election based on their own partisan affiliations; this paved the way for President George W. Bush to appoint Samuel Alito."
  • Law professor and former Federal prosecutor Joyce Vance concurs, saying "Reversing Roe, particularly in the manner Alito does, condescending, patronizing, forcing an end to women’s full participation as equals in society, will forever change the belief that the court is above politics and the public’s confidence in the Court."
  • Adam Liptak of the Times agrees, hinting that Alito or one of his clerks might have leaked the draft as away of pressuring Justices Kavanaugh (R) or Gorsuch (R) to stay in the majority.
  • George Will, fresh from his local dispensary, says the end of Roe gives everyone a chance to start over. Everyone, I suppose, except the women whose lives will be ruined or lost because of unwanted or unsafe pregnancies.
  • Stephen Colbert Tweets, "I can’t believe how gullible Susan Collins is. But Susan Collins can." But Eric Garland reports on some aspects of Collins' history that paint a much worse picture of the Senator.
  • Julia Ioffe reminds us that five of six of the Republican justices were appointed by presidents who lost the popular vote.

But, hey, guys? Please keep covering the other stories of the day. Like, for example, the corruption of Justice Thomas (R) and his wife.

Justice Ketanji Brown Jackson

The US Senate did something pretty cool yesterday:

The Senate on Thursday confirmed Judge Ketanji Brown Jackson to the Supreme Court, making her the first Black woman to be elevated to the pinnacle of the judicial branch in what her supporters hailed as a needed step toward bringing new diversity and life experience to the court.

Overcoming a concerted effort by Republicans to sully her record and derail her nomination, Judge Jackson was confirmed on a 53-to-47 vote, with three Republicans joining all 50 members of the Democratic caucus in backing her.

Not everyone shared in the joy of the day. As applause echoed from the marbled walls, Senator Mitch McConnell, Republican of Kentucky and the minority leader, turned his back and slowly walked out, as did most of the few Republicans remaining on the floor, leaving half of the chamber empty as the other half celebrated in a stark reflection of the partisan divide.

“When it came to one of the most consequential decisions a president can make, a lifetime appointment to our highest court, the Biden administration let the radicals run the show,” Mr. McConnell had said earlier, making one last argument against Judge Jackson, whose nomination he framed as an example of extremists taking control of the Democratic Party. “The far left got the reckless inflationary spending they wanted. The far left has gotten the insecure border they wanted. And today, the far left will get the Supreme Court justice they wanted.”

Senator McConnell is full of shit, of course, and he knows it. Jackson would have made any Republican Senator's heart sing only five years ago. But, hey, thanks to Senators Susan Collins (R-ME), Lisa Murkowski (R-AK), and Mitt Romney (R-UT), we may have gotten the last bipartisan confirmation in our lifetimes.

On July 1st, Justice Jackson will become only the 7th person to sit on the Court who wasn't a white guy.

President Biden's first State of the Union

As I did in 2020, this year I live-posted SOTU on Facebook. Here are my posts, in the order I made them:

OK, here we go with the SOTU. Last time (2020) I needed two martinis and watched with the sound off. This time, I see no need for alcohol and I'm happy to listen. What changed, I wonder?

Ukrainian ambassador gets an extended standing ovation from the entire government of the United States. She might prefer fighter jets and ammunition, but it was a nice gesture

We're putting troops along the Russian border...whoo boy

Yes! End "trickle-down" policies which only concentrate wealth at the top

Infrastructure decade. Yes.

It's so nice to hear a coherent, positive speech from a man who cares about the job he has

I was already a little concerned about the "make it in America" rhetoric, and then cue the GOP chanting "USA, USA!"

Dignity! Yes, this is where Biden excels. Nice.

The wise grandfather is such a welcome contrast to the ugly uncle

I did not predict a chief prosecutor for pandemic fraud. Very good.

"The only president ever to cut the deficit by $1 trillion in one year." Partially disingenuous, but still true

Anti-virals on the spot at no cost if you test positive at a pharmacy. Wow

Bipartisan standing O on "our kids need to be in school."

"Let's see each other as...fellow Americans." Most of the GOP clapped too. Good.

Strong statement against "defund the police." And yes! Repeal the liability shield protecting guns!

Awww. Justice Breyer looks so cute

Wow, Katanji Brown to "strong borders" in one sentence? Grandpa missed a paragraph break

Did the speechwriters run out of time? It seems like we're in the "and another thing" section. The recap in sonata-allegro form, I suppose

Wow, connecting military burn pits to his son's cancer

ARPAH [Advanced Research Projects Agency for Health]. We can do this.

The state of the Union is strong because you, the American people, are strong.

Of course the outburst was from Boebert.

Wow, what a contrast from last time. No martinis required, but I believe I will have a wee Lagavulin.
Meanwhile, Cassie has graduated to loud snoring:

And yes, I did have a wee Lagavulin:

Here's the unedited thread:

Still the top news story

My friend in Kyiv posted on Facebook an hour ago about how many parking spaces are available in her neighborhood. She also couldn't figure out for a few seconds why there was a pillow in her bathtub this morning. So things could be better over there.

How much better could it be?

Meanwhile...

Maybe in my lifetime we'll have peace in Eastern Europe and a transit system in Chicago as good as any in Europe 20 years ago. I'm not sure which is more likely.