Tuesday, June 27, 2017


Is Breyer the author of footnote 3? Does the Marks rule apply to footnote 3?


paul alan levy and public citizen make strange bedfellows. i admire his work. i included the link to remind myself to keep up with his blogging.

Baudewatch department:
“We will look back on this term,” he added, “as the calm before the storm.”
That's a conspirator citing the New York Times quoting Baude. I think he's right;
Gorsuch has started off with a bang and I think we'll see a Roberts-Gorsuch court going of fin some new directions, which will lead to a highly divisive confirmation fight if another vacancy occurs during Trump's term, which may not happen.
cited by hasen.
see also https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/27/same-sex-marriage-after-obergefell/?utm_term=.67d7d98a2664 for Baude's take on significant upcoming cases.

A few notes on Trinity Lutheran v Missouri DNR.

If you get off I-70 at the stadium drive exit on the west side of Columbia, go north past the mall, pas the Chick-Fil-A, and park on Rollins drive, you are at the Trinity Lutheran church and preschool.
google maps. I pretty much never go to that side of town; it's the suburbs. I used to be on Columbia's energy and environment commission, and using recycled tires as playground material is generally a good idea. Having government fund church infastructure isn't.


The opinion came down yesterday and since I think it was wrong, I might as well read it. Will be updating this post with notes as I go. It was 7-2, with a mix of who joined what.

The controversial footnote 3 is:
3This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.

The Chief Justice did not join footnote 3, nor did Thomas or Gorsuch, who boith wrote seperately. together. Thier concurrences are pretty much to say that they do not agree with footnote 3; that is, they do not see the decision as a narrow one. The other shoe dropped today with the court sending the Colorado vouchers case back to the lower courts. I forget if the Independce Institute was involved in that case in some capacity.

Next up I'll need ot read the dissents by Sotomayor and Ginzberg. Perhaps that will change my mind about the case.

She starts off well:

To hear the Court tell it, this is a simple case about recycling tires to resurface a playground. The stakes are higher. This case is about nothing less than the relationship between religious institutions and the civil government—that is, between church and state. The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church. Its decision slights both our precedents and our history...

She goes on to cite Carl Esbeck, who was my con law professor and was several times nominated but never chosen for a seat on the Missouri Supreme Court under the Missouri plan.

Yesterday's decision in the Missouri church playground case was not a big deal in itself - relatively few states rubberize playgrounds for schools. But it was a landmark with far reaching implications for church-state relations. Today the court remanded a colorado case about school vouchers for religious schools. http://www.scotusblog.com/case-files/cases/colorado-state-bd-of-education-v-taxpayers-for-public-education/. That's the larger implication of the case. Now we'll see more years of litigation about whether provisiing vouchers for religiouss activity is an establishment. Untill yesterday, many state constitutions drew a hard line in the sand between church and state. Now that is gone. Probably will be seen as a victory for Trumpism. I find it appalling. However, I should probably actually read yesterday's decision before commenting much further.

Monday, June 26, 2017

Today was the last day of the Supreme Court term. It came out wrong on the Missouri playground church-state case, which I have not read yet. I think the big news is a partial stay of Trump's tavel ban.
It granted suit in the colorado gay cake case. I'll be headed out to Colorado next month to invesigate further. As a gay guy who has worked at bakeries, I support the bakers.
It granted cert in a case about a whitleblower under Dodd-Frank.

It turned down a california case, Peralta, about the right to bear arms. I'm trying to find Gorsuch's dissent.

Ah, he only joined Thomas's dissent:
Thomas and Gorsuch seem like a good team.

For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it. -Thomas.


Sunday, June 25, 2017

"Donald Trump Is In The Perfect Position To Dramatically Remake The Courts; With 100+ judicial vacancies and a Senate eager to fill them, conservatives are salivating": Jennifer Bendery and Alissa Scheller of HuffPost have this report.

SCOTUS reporter, blogger, Lyle Denniston retiring. Kennedy not so much.

Saturday, June 24, 2017

consitution in exile movement:

In my view, it would be desirable for us to take a fresh look at our regulatory takings jurisprudence, to see whether it can be grounded in the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment. See generally Rappaport, Originalism and Regulatory Takings: Why the Fifth Amendment May Not Protect Against Regulatory Takings, but the Fourteenth Amendment May, 45 San Diego L. Rev. 729 (2008) (describing the debate among scholars over those questions).

This is Thomas dissenting in Murr, a 5-3 takings case decided this week. Guessing, without knowing, that Thomas could pick up Gorsuch's vote, or vice versa, we could see a resurgence of the P + I clause during the Trump administration.

see also https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/23/a-loss-for-property-rights-in-murr-v-wisconsin/?utm_term=.554c5842d319

Another way to go about this would be federal legislation to spell out what are some of the privileges and immunities of federal citizenship. Federal rights can be created without needing a constitutional amendment. The GOP, at least for now, holds both houses of Congress and we have a GOP president who claims to be a genuine movement conservative, if an eccentric one. 

 Alternatively, similar federal legislation could be grounded in the 5th Amendment' taking clause, puting limits on state condemnations and over-regulation. While Trump has been a fan of condemnation and eminent domain, he supports an anti-regulation agenda, so that might work for him.

In Murr, Kennedy sides with the liberals, and Gorsuch was not involved. I am not expecting Kennedy to retire any time soon. So there are not clearly 5 votes for a conservative position on property rights under the 5th Amendment takings clause. Kennedy is a swing vote, so a case could go either way 4-5 or 5-4. But add in federal legislation, and that could pick up at least a 5th vote, and maybe more.

I am not someone who can instigate fedral legislation. Given my total lack of clout, that would be tilting at windmills. I do have an upcoming meeting with staff for the GOP caucus in Indiana, about some legislation I'd like to see, That's more the area I think I can influence.

Friday, June 23, 2017

rainbow nation gathers in oregon I'm not going to make it this year.

Thursday, June 22, 2017

See generally Baude, Is Qualified Immunity Unlawful? 106 Cal. L. Rev. (forthcoming 2018) (manuscript, at 7–17), online at https://papers.ssrn.com/abstract=2896508 (as last visited June 15, 2017).

This is Baude at Volokh bloging Justice Thomas citing Baude.


Wednesday, June 21, 2017

 Imagine me wearing a tie two days in a row. I'm at a CLE on the 2017 legislative update, with various state senators. I feel like I just paid $200 for a muffin.

Tuesday, June 20, 2017



In 1972 I listened to the BBC cover the stonehenge solstice gathering, and I got there about a week later. In those days it wasn't all cordoned off with ropes like it is now. I do not yet have specific plans for tomorrow; I'll check the local subreddit or meetup.com to see if there's anything.
Today I had a minor victory in court and bought an RC cola to clebrate with. It wasn't a big enough case for a bottle of champagne.

Meanwhile Dow 21,492.

Wednesday, June 14, 2017


1. take short breaks during long work sessions. e.g. 10 second stretch 3 times an hour.
2. don't multitask
3. go outside into nature now and then
4. bring plants iinto your office. (today i bought a peach tree and a tobacco plant.)
5. what gets measured, improves.

Monday, June 05, 2017

Arbitrary day is June 25th.

 canadian weather

Saturday, June 03, 2017


some sort of directory of comedy podcasts.
well maybe it only works for phones, and only certain phones. so disregard.




Pulled over: what to say, what to do. $3, kindle, 42 pages. JJ Luna.
I have not read this, but read his book on privacy so I trust this source.

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