The Daily Parker

Politics, Weather, Photography, and the Dog

Thursday afternoon round-up

A lot has happened in the past day or so:

Finally, let's all congratulate Trumpet, the bloodhound who won the Westminster Kennel Club's dog show last night. Who's a good boy!

Hottest day in 10 years–almost

Chicago's official temperature last hit 38°C (100°F) on 6 July 2022, almost 10 years ago. As of 4pm O'Hare reported steady at 37°C (98°F) with the likelihood of breaking the record diminishing by the minute. At Inner Drive Technology World Headquarters, we have 37.2°C, still climbing, but leveling off.

In other hotness around the world:

Finally, Florida Fish and Wildlife Officials captured a 95-kilogram, 5.4-meter Burmese python, the largest ever discovered in the state. Apparently it had recently dined on a deer. So far they have found over 15,000 of the snakes, none of them quite so large.

Update: Not that I'm complaining, but after holding just under 37°C for three hours, the temperature finally started to drop. At 6pm O'Hare reported 36°C. So no record.

Main battle concluded; mop-up skirmishes continue

A little more than four days after I first noticed Covid-19 symptoms, my body appears to have won the war, with my immune system putting down a few rear-guard actions in my lungs and sinuses quite handily. If I wake up tomorrow without residual coughing or sneezing, I'll be able to partially resume normal life, albeit masked. Good thing Cassie has a few weeks worth of food on hand.

In sum, I should be perfectly healthy to deal with the two crises sure to blow up next week: the final Supreme Court rulings of the term (including Dobbs), and three days in Austin, Texas, where the temperature will hit 39°C every day I'm there.

On Dobbs specifically, and Justice Alito (R) in general, former Jimmy Carter aide Simon Lazarus has some advice for the Democratic Party:

Alito’s intended audience is not elite thinkers or legal scholars but rather lay populations who do not closely follow high-profile legal kerfuffles. Polls indicate that majorities of this huge cohort favor legal abortion, but many do not consider it a top personal or political priority. Alito’s aim is to persuade such people that, whatever the real-world consequences, he is ruling in accord with what he and his colleagues on the right believe—legitimately—the law requires. And on those fronts his simplistic argument could work. In fact, there should be little doubt that it will prove effective—tempering criticism, inducing resigned acquiescence—unless liberals counter with messaging that is trenchant, credible, strategically targeted, and repeated at every opportunity.

Alito has unfurled a legal framework fit for legitimizing campaigns against not only abortion but any right not specified in the Constitution’s text. Liberals must discredit that framework with force and haste. They can no longer rely solely on their preferred tactic of parading the array of real-world horribles that will naturally follow in the wake of decisions that decimate the rights Americans have enjoyed for decades. They must meet their right-wing adversaries on their preferred terrain and successfully mass-market a liberal legal alternative.

In truth, his pitch is antithetical to how the Constitution has been understood from the founding era on.

So where to start? The top-line message point is simple: Fundamental, unenumerated rights—abortion, contraception, LGBTQ liberty, marriage equality, and others—are in fact in the Constitution.

Lazarus' answer? Start with the Ninth Amendment and work out from there.

History shows that the Right usually swings into power when life becomes unsettled, only to hurt so many people that the Left returns to power a few years later. The Right also tend to have better organization and focus, since they don't care as much about policy as they do about power and wealth; but they always, always over-reach and ultimately lose more than they win.

Future generations will look back on ours and shake their heads at Alito and Thomas just as we wonder how the 1830s and 1840s produced such horrible people as John C Calhoun and Jefferson Davis. But we're about to spend a decade or so with the Right finally getting what they've worked to achieve for 40 years. I hope we get through it without a war.

Day 2 of isolation

Even though I feel like I have a moderate cold (stuffy, sneezy, and an occasional cough), I recognize that Covid-19 poses a real danger to people who haven't gotten vaccinations or who have other comorbidities. So I'm staying home today except to walk Cassie. It's 18°C and perfectly sunny, so Cassie might get a lot of walks.

Meanwhile, I have a couple of things to occupy my time:

Finally, today is the 210th anniversary of the War of 1812 and the 207th anniversary of the Battle of Waterloo.

Friday afternoon reading

Yesterday I had a full work day plus a three-hour rehearsal for our performance of Stacy Garrop's Terra Nostra on Monday night. (Tickets still available!) Also, yesterday, the House began its public hearings about the failed insurrection on 6 January 2021. Also, yesterday was Thursday, and I could never get the hang of Thursdays.

Finally, Wired takes a look at the law of war, and how Ukrainian civilians may cross the line into belligerents by using apps to report military intelligence to the Ukrainian army.

My houseguest has departed

After four nights, five puddles, four solid gifts, and so much barking that the neighbors down the block left a note on my door, Sophie finally went home this afternoon. I also worked until 11:30 last night, but that had nothing to do with her. It did cause a backup in my reading, though:

Finally, army dude-bros in several countries have gotten into arguments over online tank games and, to win those arguments, have posted classified information about real tanks. The defense authorities in the US, UK, France, and China are investigating.

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.