Thursday Open Thread

What's on your mind?

Comments

[not guilty]

An article in Politico magazine wonders whether the Supreme Court will use United States v. Skrmetti to curtail application of intermediate scrutiny under Equal Protection analysis to statutes that discriminate based on sex. https://www.politico.com/news/magazine/2024/12/24/supreme-court-trans-youth-womens-equality-00195710 That is a very real danger.

The question as to which SCOTUS granted certiorari is:

Whether Tennessee Senate Bill 1 (SB1), which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” Tenn. Code Ann. § 68-33-103(a)(1), violates the Equal Protection Clause of the Fourteenth Amendment.

Among the contested issues before the Court is what standard of equal protection analysis to apply. The District Court issued a preliminary injunction against enforcement of the challenged statutes, applying intermediate scrutiny. L. W. v. Skrmetti, 679 F. Supp. 3d 668 (M.D. Tenn. 2023), rev'd 83 F.4th 460 (6th Cir. 2023). The Sixth Circuit reversed, applying rational basis analysis, L. W. v. Skrmetti, 83 F.4th 460, 488 (6th Cir. 2024), without discussing whether the District Court's factual findings are clearly erroneous.

The District Court's principal rationale for applying intermediate scrutiny is its finding that transgender individuals constitute a quasi-suspect class under the Equal Protection Clause. Id., at 690. In the alternative, the Court also found that the challenged Act is subject to intermediate scrutiny because it imposes disparate treatment on the basis of sex, id., at 691-692, and that SB1 subjects individuals to disparate treatment on the basis of sex because it imposes disparate treatment based on transgender status. Id.,<!--> at 694. Under Fed.R.Civ.P. 52(a)(6) these factual findings must not be set aside unless clearly erroneous.

The District Court analyzed the four factors which SCOTUS has used to determine whether a class (such as transgender persons as a group) is quasi-suspect, such that disparate treatment of members of that class is subjected to intermediate scrutiny:

(1) whether the class has been historically subjected to discrimination; (2) whether the class has a defining characteristic that frequently bears no relation to ability to perform or contribute to society; (3) whether the class exhibits obvious, immutable, or distinguishing characteristics that define them as a discrete group; and (4) whether the class is "a minority or politically powerless.

Id, at 689 (citations and internal quotation marks omitted). The District Court conducted a thoughtful analysis of each of these factors based on the evidentiary record then developed, id. at 690-691, without prejudice to the ability of the State to present further evidence at later stages of litigation. Id. at 690, n.22.

The Solicitor General at oral argument focused on discrimination because of sex. https://www.supremecourt.gov/oral_arguments/argument_transcripts/2024/23-477_c07d.pdf If the government is successful in that regard, the remedy would be a remand to the Court of Appeals to consider whether the challenged Act survives heightened scrutiny (at least at the preliminary injunction stage). There is a real danger that the black robed, result-oriented clowns of SCOTUS will use this case as a vehicle to chip away at the application of heightened scrutiny to sex based classifications in general.

Let's hope that United States v. Skrmetti does not do for sex discrimination what Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022), did for abortion rights.

[Kazinski]

Its almost like SCOTUS could rationally come to the conclusion that men and women are different.

This UVA study should never have seen the light of day:

"Women are known to suffer a disproportionate number of liver problems from medications. At the same time, they are typically underrepresented in drug testing."

https://medicalxpress.com/news/2023-10-tool-reveals-drugs-affect-men.html

There are plenty of reasons men and women should be treated differently in medical contexts, including the fact they have entire portions of their anatomies that are different.

I don't think they are blind to the implications, because if they find that transgender individuals are a quasi-suspect class then they have also effectively ruled that single sex bathrooms are open to both sexes, trans "women" can compete in women's sports, and every other issue that was just litigated in the election.

This Supreme Court is not jumping back into the Roe, the court should lead the way in social and cultural issues, swamp. They just got out of that quagmire, no way are they jumping back in.

[not guilty]

I don't think they are blind to the implications, because if they find that transgender individuals are a quasi-suspect class then they have also effectively ruled that single sex bathrooms are open to both sexes, trans "women" can compete in women's sports, and every other issue that was just litigated in the election.

Legal issues are not litigated in elections, Kazinski. There is no issue in this case as to single sex bathrooms of participation in gender specific sports. Those issues present very different state interests, as to which courts are free to consider properly developed evidentiary records in the event of an equal protection challenge.

The standard of review applicable to whether transgender status is a quasi-suspect class is a case of first impression in SCOTUS. I know we have a result-oriented bench of black robed wardheelers, but if the Court were serious about following the law, review of factual findings is not de novo. The District Court's factual findings should not be set aside unless they are clearly erroneous per Fed.R.Civ.P. 52(a)(6).

As a prior panel of the Sixth Circuit has opined:

"To be clearly erroneous," as the Court of Appeals for the Seventh Circuit has said in a different context, "a decision must strike us as more than just maybe or probably wrong; it must . . . strike us as wrong with the force of a five-week-old, unrefrigerated dead fish." Parts and Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988), cert. denied, 493 U.S. 847, 110 S.Ct. 141, 107 L.Ed.2d 100 (1989).

United States v. Perry, 908 F.2d 56, 58 (6th Cir. 1990).

[Commenter_XY]

NG, that is a great find (the cite) on 'clearly erroneous'. That was a great turn of phrase. You have a talent for citing these that I admire greatly, I have laughed a lot.

I don't think the District Court got the quasi-suspect class designation correct, in the end. That aside, this case has parental rights issues as well - IDK how SCOTUS can ignore them.

The world did not end with Dobbs, and for the overwhelming majority of women, nothing changed at all wrt abortion access. My point?

What is the actual harm of curtailing intermediate scrutiny here; what will change? The answer is, for the overwhelming majority of American 'trans' children, nothing will change, just like abortion and Dobbs.

TN can prohibit the treatments until those minors become legal adults. Remember Buck v Bell? I figure that case gives the Fed Gov all the power they would ever need (note, I would like to see it overturned, but it is till good law).

[not guilty]

"I don't think the District Court got the quasi-suspect class designation correct, in the end. That aside, this case has parental rights issues as well - IDK how SCOTUS can ignore them."

This case in the lower courts involved parental rights. The Sixth Circuit Court of Appeals consolidated the instant Tennessee case with a case arising out of Kentucky raising similar issues. The United States was a plaintiff-intervenor in the Court of Appeals as to the Equal Protection issue pursuant to 42 U.S.C. § 2000h-2, which authorizes Justice Department intervention in a private equal-protection suit “if the Attorney General certifies that the case is of general public importance.”

Both the United States and the original Tennessee and Kentucky plaintiffs petitioned SCOTUS for certiorari. The Supreme Court granted the United States's petition on the equal protection issue. It has so far neither granted nor denied the original plaintiffs' cert petitions, which raise the Substantive Due Process rights of parents in addition to the Equal Protection issue.

If and when SCOTUS rules on the pending case, (the incoming Trump administration may move to dismiss the grant of cert as improvident,) I would expect it to grant cert on the original plaintiffs' petition, vacate the Sixth Circuit opinion and remand for further proceedings consistent with the SCOTUS ruling. That may include further proceedings on the SDP issues.

[Kazinski]

"The standard of review applicable to whether transgender status is a quasi-suspect class is a case of first impression in SCOTUS."

Exactly, which is why they aren't going to touch it with a 10ft pole.

[Riva]

Transgenders are suffering from a mental disorder. That does not make them a quasi-suspect class. If so, then we’re going to be getting a lot of suspect classes in the future.

[Josh R]

It doesn't seem right to me that the "clearly erroneous" standard should apply to the four factors that led to the conclusion that gender identity is a quasi-suspect classification. These facts aren't like the facts of who did what to whom.

But I agree that intermediate scrutiny does not mean single-sex bagthrooms or single-sex sports are impermissible. Heck, the requested relief in this case is to remand the case to the Sixth Circuit to apply intermediate scrutiny to this case, not to conclude the law is invalid.

[Kazinski]

But what that does is then let every federal judge declare "intermediate scrutiny" and strike any same sex restrictions they think are antiquated.

Just like the courts claimed intermediate scrutiny allowed states to ignore the right to keep and bear arms, even after Heller and McDonald.

[Josh R]

A holding that a regulation is antiquated begs the question under intermediate scrutiny. SCOTUS would reserve the right to grant cert and correct lower courts in specific instances.

[Kazinski]

The Supreme Court is not going to invite the lower courts to play intermediate scrutiny whack-a-mole again.

[Josh R]

What is intermediate scrutiny whack-a-mole? And what will SCOTUS do to prevent it?

Lower courts are supposed to apply intermediate scrutiny when there is sex discrimination, and sometimes the state wins and sometimes it loses.

[The Margrave of Azilia]

Let us look at the matter from a real-world perspective.

First, they want a decision that parents have the right to poison or mutilate their children. Then they're going to push for poisoning or mutilating children whether the parents wish it or not, and to punish parents who resist.

The fact is that I'm a consistent opponent of vigilantism and lynching. If you happen to capture Dr. Mengele himself, you should turn him in to the authorities, not murder him.

I notice that some of the same type of people who support the poisoning and mutilation of children are cheerfully supporting - or at least "contextualizing" - vigilante murder, in a related context.

They should reconsider their views and speak out to turn public opinion *against* vigilantism and lynching. If only to protect themselves. And terrorist vigilantism and lynching should be capital crimes, in the sense of "hanged within a year or two of conviction."

As for the constitutional merits of poisoning and mutilating children, I think the right to do this to children is, as not guilty suggests, on the same constitutional level as the right to kill children in the womb. But unlike not guilty, I think this means that there is not so much as a shadow of a constitutional right to commit either atrocity.

[not guilty]

"First, they want a decision that parents have the right to poison or mutilate their children. Then they're going to push for poisoning or mutilating children whether the parents wish it or not, and to punish parents who resist."

Uh, parental rights under the Substantive Due Process doctrine are not at issue in this case. The Appellant is the United States, which intervened only on the Equal Protection issue. The original plaintiffs in this Tennessee case and a companion Kentucky case which the Sixth Circuit consolidated sought certiorari, but SCOTUS to date has neither granted nor denied those cert petitions. The sole issue on which cert was granted is:

Whether Tennessee Senate Bill 1 (SB1), which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” Tenn. Code Ann. § 68-33-103(a)(1), violates the Equal Protection Clause of the Fourteenth Amendment.

Get your facts straight before commenting.

[Dr. Ed 2]

"The Appellant is the United States, which intervened only on the Equal Protection issue."

The "Equal Protection" right of the mentally ill to harm themselves. Let's extend this to the Equal Protection right of the mentally ill to commit suicide -- no, to have medical professionals help them kill themselves.

This is, at best, an incredibly twisted interpretation of what "Equal Protection" means, and at least be adult enough to admit that.

And realistic enough to realize that the US DOJ isn't going to be pursuing this asinine argument as of Jan 20th.

[The Margrave of Azilia]

CNN has run an article about how the government shouldn't be meddling with parents who choose gender affirming care (or whatever the current euphemism is) for their children.

"Though the high court declined to consider the parental rights question when it took the case earlier this year, the debate is nevertheless playing out in briefings and may come up during the court’s oral arguments."

Not to mention the court of public opinion, like in CNN itself.

https://www.cnn.com/2024/11/27/politics/parental-rights-transgender-skrmetti-case-supreme-court/index.html

But after they get their goal of letting parents do this to their kids, they'll drop the rhetoric of parental consent and punish parents who dare try to protect their children.

Get the heck out of here with your gaslighting.

[not guilty]

Again, parental rights are not before SCOTUS in United States v. Skrmetti. I can explaint that to you, but I can't understand it for you.

[Frank Drackman]

Man-splaining is so annoying, especially when it's done by someone who's only technically a man.

[The Margrave of Azilia]

You seem to be having a lovers' quarrel with your ideological bedfellows at CNN. How cute.

Just to be clear, the CNN article shows the "line" your media comrades are adopting for the benefit of the cause you support alongside them: poisoning and mutilating children.

They want people to believe it's about parents' rights, so they can soften the country up to a accept the anti-child doctrines you advocate. I agree with you that CNN is lying.

[windycityattorney]

If a state law says its illegal...to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” AND this is a psychological issue as many of the commenters here think gender dysphoria is (i.e, the kids are mentally ill)... then this law would also prevent the doctor from treating the mental health issue.

I am not sure that is what the commenters want and if it is, then they are even crueler than I thought. Its one thing to disagree with transitioning minors with permanent procedures until they reach a certain age of maturity (which is a reasonable position to take to me given the permanent nature of some of the procedures) compared to preventing ANY treatment of a specific diagnosis related to gender dysphoria. I don't know how the latter got lumped into the former. I think the latter goes too far and that compromise could be reached with respect to the former.

If the child, the child's parents/guardians and the child's treating physicians all agree on a course of treatment - then I would hope that the law would accommodate. If anything in this debate is true, it is that the legislature of the State of Tennessee is not a medical board with proper training to make medical decisions for people they have never met.

[Noscitur a sociis]

If a state law says its illegal...to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” AND this is a psychological issue as many of the commenters here think gender dysphoria is (i.e, the kids are mentally ill)... then this law would also prevent the doctor from treating the mental health issue.

I guess if did say that, it might so that. But of course, that’s not what the statute says. It doesn’t prohibit “ANY treatment”: it prohibits performing certain “medical procedures”, defined as surgery or prescription of hormones or puberty blockers.

[windycityattorney]

I was going off the 'questions presented' to the US SUP CT which notguilty above me had quoted. Because I have no reason to believe he misquoted those questions; that is the language I used.

But even if its just hormone therapy; I would take issue with that (again assuming the child, the child's parents and the treating doctors all agree it would be appropriate in that particular case).
But assuming it is specific to that; then I wonder about people with hormone deficiencies who want gender affirming care. Say a male teenager needs testosterone or something because of some genetic condition. Would that ALSO be banned if the male child was not happy with appearing too feminine or not sounding man enough or similar? In other words, I wonder about the universal law of unintended consequences. Which again, goes back to my point about the TN legislature wading into territory that belongs rightly in the medical profession as such.

[TwelveInchPianist]

NG correctly quoted the QP, but as NaS points out, the QP appears to badly misstate the law, which applies to "medical procedures", not medical treatments, and defines medical procedures as

(5) "Medical procedure" means:
(A) Surgically removing, modifying, altering, or entering into
tissues,
cavities, or organs of a human being; or
(B) Prescribing, administering, or dispensing any puberty blocker
or hormone to a human being;

[not guilty]

I don't care what CNN says, Margrave. I quoted upthread the question on which SCOTUS granted certiorari, which again is:

Whether Tennessee Senate Bill 1 (SB1), which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” Tenn. Code Ann. § 68-33-103(a)(1), violates the Equal Protection Clause of the Fourteenth Amendment.

The original plaintiffs included transgendered minor children, their parents, and a physician who has been treating patients for gender dysphoria since 2016. L. W. v. Skrmetti, 679 F.Supp.3d 668, 678 (M.D. Tenn. 2023). Their claims included both a violation of equal protection and deprivation of the substantive due process right of a minor's parents to direct the medical care of their children. Id., at 680. These are distinct legal issues, and the District Court analyzed them separately.

The United States intervened in the Court of Appeals, as to the equal protection claim only. After the Sixth Circuit reversed the preliminary injunction, the United States and the original plaintiffs filed separate petitions for writ of certiorari. The United States only asserted the equal protection claim, while the original plaintiffs asserted both equal protection and due process parental rights claims. SCOTUS granted cert as to the United States on the equal protection claim. So far the Court has neither granted nor denied the original plaintiffs' cert petition, which includes the parental rights claim.

As I have said time and again here, there is no substitute for original source materials.

[The Margrave of Azilia]

You autistic dumbass, you've contradicted nothing I've said about how the child-poisoning and child-mutilating cause is being sold in the court of public opinion.

They say it's about parental rights, as in the CNN article.

And it's not only CNN, check out windycityattorney's post above. He said: "If the child, the child's parents/guardians and the child's treating physicians all agree on a course of treatment - then I would hope that the law would accommodate." Which is bullshit, because the parents and doctors should no more "treat" a child with poisoning and mutilation than they should give the child cocaine.

You find it convenient to ignore how the public debate is actually being conducted.

As I said, they're going to push the "parental rights" button, and if a decision comes down upholding the law, "parental rights" will be a major talking point deployed against the decision - until they decide parental rights aren't a useful talking point any more. And you'll continue your autistic gaslighting, which frankly is becoming tiresome.

The question isn't whether Tennessee's protective statute is constitutional, since of course it is, just as a law against giving a child cocaine would be constitutional. The question is about the legitimacy of any constitutional doctrine under which there's a right to poison and mutilate a child.

[Josh R]

Of course a decision to uphold the law under the EPC will lead to a focus on parental rights. Why is that a big deal?

You begin with an assumption (puberty blockers and hormone treatments for minors is poison or mutilation) that makes the legal case easy. But even the Cass report does not agree with you.

[The Margrave of Azilia]

Only Nixon could go to China, and only a Cass commission sharing some of the premises of the mutilators could have the credibility in a country like the UK to get these practices stopped. That doesn't make them an "even." (One finding, according to Wikipedia, was that they "did find evidence of bone health being compromised during treatment.")

"Of course a decision to uphold the law under the EPC will lead to a focus on parental rights. Why is that a big deal?"

(a) Because of not guilty's gaslighting.

(b) Because there's no more right to do these things to children than to give them cocaine.

[Josh R]

The practices are only stopped for minors in the UK, but not because they are poison or mutilation. If they were, the state could ban it for everyone (save pubert blockers which don't apply to adults). Your assumption is flawed.

Pointing out that parental rights are not before the Court does not diminish those rights as an issue, and is thus not gaslighting.

[The Margrave of Azilia]

The problem is, I didn't say that parental rights were within the certiorari grant, so what, exactly, is not guilty rebutting?

I pointed out the "omg parental rights" propaganda we're seeing even before the decision comes down, and in connection with that very case.

"Even" a commission sympathetic to the overall worldview of the gender crazies doesn't admit the the full horror of these procedures? What is that surprising? How do they get to narrow the Overton Window?

[Josh R]

You began with "they want a decision that parents have the right to poison or mutilate their children." It seems reasonable to point out they can't get that decision right now.

The description, "the full horror of these procedures" is just you restating your flawed assumption. So what?

[The Margrave of Azilia]

Your quote is extremely misleading. I said:

"First, they want a decision that parents have the right to poison or mutilate their children. Then they're going to push for poisoning or mutilating children whether the parents wish it or not, and to punish parents who resist."

I've shown you examples of Step One (CNN, windycityattorney), and in many cases they're already moving to Step Two.

[Josh R]

But not guilty is correct that Step One cannot occur in this case. Pointing out this simple fact isn't gaslighting.

[not guilty]

Margrave, as a result of my "gaslighting" comments, are you questioning your own sanity, memory, or powers of reasoning?

If so, I am damned proud of that.

[The Margrave of Azilia]

Don't project.

[The Margrave of Azilia]

"But not guilty is correct that Step One cannot occur in this case."

Seriously? Who do you think would be exercising childrens' newly-discovered "rights" on their behalf?

First the parents, then, later, the government agency responsible for such things.

[not guilty]

The word "gaslighting" is thrown about on these comment threads with reckless abandon. The offenders know who they are.

The principal meaning of the word (consistent with its cinematic origins) is:

psychological manipulation of a person usually over an extended period of time that causes the victim to question the validity of their own thoughts, perception of reality, or memories and typically leads to confusion, loss of confidence and self-esteem, uncertainty of one's emotional or mental stability, and a dependency on the perpetrator

https://www.merriam-webster.com/dictionary/gaslighting

There is a secondary meaning -- the act or practice of grossly misleading someone especially for one's own advantage -- but that is not what is happening here, either. It has become a go to general insult, signifying nothing more than that one commenter has said something that another commenter doesn't like.

That trivialization of the word is tiresome and perverse. https://www.merriam-webster.com/dictionary/perverse

[The Margrave of Azilia]

"That word shouldn't have evolved in meaning, it's so unfair!"

[not guilty]

I agree that the right of parents to direct their minor children's medical care is very important and under attack from the peckerchecker crazies.

But that right is not currently before the Supreme Court of the United States pursuant to any writ of certiorari.

No matter how SCOTUS rules in United States v. Skrmetti, it is likely to thereafter grant cert to the Tennessee and Kentucky original plaintiffs, vacate the Court of Appeals decision and remand for further proceedings in light of its opinion in Skrmetti, whatever the content of that opinion may be.

[The Margrave of Azilia]

"I agree that the right of parents to direct their minor children's medical care is very important and under attack from the peckerchecker crazies."

How about cocaine? Would it be constitutional to ban "cocaine treatment" for children if that treatment is approved by parents and doctors?

[Frank Drackman]

I agree, Dobbs left the decision to kill unborn babies up to the states, letting Physicians chop off perfectly healthy Peni/Testicles/Clitori/Ovari should be ill-legal everywhere, not just at Bushwood. Unlike Cums-a-lot, I wouldn't even do it to illegal (see previous) alien prisoners.

Frank

[Peter Kreeft taught me LOGIC, BEWARE !!!!!!!]

Let's hope you learn how to write and think. You by defnition cannot argue first prinicples. Sex-based discrimination is itself in most cases discrimination that immediately goes to sexual violations because that is the easiest.

[JoeFromtheBronx]

The best bet might be a narrow opinion, maybe written by Barrett.

[Josh R]

A 5-4 or 6-3 ruling that assumes, but only for the sake of argument, that intermediate scrutiny applies and holds the law survives would do the trick. Alito and Thomas could concur sating that rational-basis review applies.

[Joe_dallas]

NG's comment - "The Solicitor General at oral argument focused on discrimination because of sex."

Yes the SG did focus heavily on discrimnation based on sex. They had to distort the actual reason to make the case it was an EP case. The Tenn legislature passed the bill to prevent negative medical outcomes for minors. The discrimination was based on the negative medical outcomes vs based on sex which separate and distinct reasons.

[Sarcastr0]

Current precedent sure makes discrimination based on sex a pretty good fit to argue. Though the statutory nature of Bostock might make it distinguishable, despite the general analytical thrust.

It'll be interesting to see how the Court threads the needle.

What isn't interesting is just pounding on the table, ignoring the legal lay of the land, and yelling 'but the CHILDREN!'

[Joe_dallas]

Plaintiffs had to distorted the medical reasons to make it discrimination based on Sex. The sex and the negative medical outcomes are separate and distinct.

[Sarcastr0]

If a law makes a distinction because of sexuality or gender identity, that's an EPC issue.

The outcomes at issue may or may not meet that burden, but they are sure not distinct from that inquiry!

[Joe_dallas]

As I stated - The law is making a distinction based on medical outcome, not based on sex.

its an important distinction that is intentional ignored / mispresented by the plaintiffs.

[Sarcastr0]

It's all the same medical outcomes, since you don't gender affirm someone who doesn't have gender dysphoria.

You're being way too formalistic here. Functionally, there's a gender distinction being made every single time.

[Joe_dallas]

Gas0 - you continue to Ignore medical reality and the important distinction.

Not surprising you cant or wont grasp the distinction.

[Joe_dallas]

It takes a lot of mental gymnastics to ignore medical reality, Though those mental gymnastics seem to be easy for the typical leftist.

As others have said "reality is the enemy of the left"

[Sarcastr0]

You are not a medical doctor.

[Joe_dallas]

No I am not a medical doctor -

However, there is considerable publicly available data that shows the high rate of negative medical outcomes .

You as always chose to ignore reality.

[Josh R]

{moved}

[Josh R]

There was a good exchange between Alito and Prelogar on your argument.

Alito agreed with you. Prelogar pushed back that the law discriminates on its face on the basis of sex regardless of the legislature's motive. Alito then offered an interesting hypothetical: what if instead the law proscribed puberty blockers for preventing puberty when it usually occurs (thus permitting puberty blockers for treating precocious puberty). Prelogar agreed that such a statute would not discriminate on the basis of sex. But she emphasized the legislature did not write such a law on purpose because doing so would have also prevented using puberty blockers for children with cancer who want to preserve their fertility.

This law is only preventing a specific negative medical outcome that requires a facial sex classification and thus whether it is justified should be subject to intermediate scrutiny (I am inclined to believe the law survives).

[Joe_dallas]

Josh - If i am following your logic, Alito and the Tenn attorney were demonstrating the law is based on medical outcome, not on "sex". whereas the SG was arguing any limitation on a medical treatment that affects males or females as a group disproportionately is automatically based on Sex and therefore an EP violation and those ignoring the medical distinction - intentionally blurring the distinction.

[Josh R]

No. The SG argued the plain text of the law classifies on the basis of sex (my emphasis):

A healthcare provider shall not knowingly perform or offer to perform on a minor, or administer or offer to administer to a minor, a medical procedure if the performance or administration of the procedure is for the purpose of: (A) Enabling a minor to identify with, or live as, a purported identity inconsistent with the minor's sex; or (B) Treating purported discomfort or distress from a discordance between the minor's sex and asserted identity.

[David Nieporent]

They had to distort the actual reason to make the case it was an EP case.

Arguing that the distinction based on sex is justified does not mean it doesn't exist.

[Josh R]

There is a real danger that the black robed, result-oriented clowns of SCOTUS will use this case as a vehicle to chip away at the application of heightened scrutiny to sex based classifications in general.

What would that look like? What instances of sex discrimination prior to your feared holding no longer be sex discrimination?

[not guilty]

If SCOTUS were to use this case to overrule decades of relevant precedents and declare that claims of sex discrimination are subject only to rational basis analysis, a la Dobbs, that would be calamitous.

[Josh R]

I will lay $1000 and give you 10-1 odds. SCOTUS will not hold that sex discrimination is subject to rational-basis review.

[Joe_dallas]

Its not sex discrimination - You, pregolar and other advocates are intentionally distorting the facts to claim its sex discrimination.

Rice pointed out multiple times why the basis of the law medical facts and negative medical outcomes.

[Sarcastr0]

They could straight overrule Bostock.

Or functionally defang intermediate scrutiny so while the words are different, the implementation becomes a lot more like rational basis.

Though I tend to agree the smart money is as JoeFromtheBronx lays out, and you detail above.

[Noscitur a sociis]

They could straight overrule Bostock.

How?

I mean, obviously you could imagine a sequence of words that would have that effect. But how could it plausibly come to pass in this case?

[Sarcastr0]

I know that Bostock was a statutory case, and this is an EPC case, but Bostock talked about sex discrimination as coming into play when talking about sexual orientation:
"An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision..."

That seems to be the case with this policy as well. So the Court could just say that it was a mistake not to go with a more originalist interpretation, and the Court adopts that theory of EPC today, as applied in the case at bar.

Note that I think the Tennessee law should stand as a matter of Constitutional interpretation (via intermediate scrutiny), and as a matter of policy. But I do think it needs to be analyzed under intermediate scrutiny because of Bostock framework.

Distinguishing Bostock would require some tapdancing around Bostock's functionalist analysis of sex discrimination I expect I'd find kind of unsatisfying.

[Noscitur a sociis]

Bostock was a case about a statute that expressly prohibits discrimination based on sex. This is a case about the equal protection clause. I’m just not really seeing how any plausible holding on the latter could plausibly lead to overruling the former.

[Josh R]

Hasn't the EP Clause been held to require intermediate scrutiny when a law discriminates on the basis of sex. If the Court holds that discrimination on the basis of gender identity categorically does not discriminate on the basis of sex, Bostock is in trouble.

If the Court holds that rational-basis review applies in this case, I expect them to provide a rationale (medical conditions are different?) that does not preclude other laws which discriminate on the basis of gender identity from being judged under intermediate scrutiny.

[Joe_dallas]

Josh R 2 hours ago
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Hasn't the EP Clause been held to require intermediate scrutiny when a law discriminates on the basis of sex.

As correctly pointed out by Rice, the law does not discriminate based on sex. It discriminates based on medical facts, a separate and distinct difference.

[tylertusta]

Or functionally defang intermediate scrutiny so while the words are different, the implementation becomes a lot more like rational basis.

You mean like the intermediate scrutiny two-step that was used in 2nd Amendment cases?

[Area Man]

“the black robed, result-oriented clowns of SCOTUS”

The lack of self-awareness by legal liberals is both staggering and, yet, predictable. Not only has result-oriented judging been the norm by liberal members of the Court for decades, it has actually been celebrated by liberal jurisprudential activists, with some even justifying it as inevitable so therefore to be encouraged towards “correct” ends.

[tylertusta]

Ah, but you forgot The Rules!

(1) When left-wingers reach a result, it's always noble, selfless, precedential, and follows long-established norms (that may have been invented right at this moment).

(2) When right-wingers reach a result, it's always evil, driven by personal profit, violates the sacrosanctity of stare decisis, and/or violates long-established norms (that may have been invented right at this moment).

(2a) And if Trump is involved, it's also illegal, criminal, and possibly a RICO conspiracy.

[Note: 2a was added to The Rules in 2016]

[Lennyk78]

Is it not "result oriented" when 5 liberals ruled that the Due Process clause protects the right of a homosexual man to shoot off into another man's backside?

[tylertusta]

I am pleased that you have moved beyond the aspirational and towards the realistic. Growth is important, especially for someone was wizened as yourself.

I for one would welcome the reversal of the left's long march through our judicial precedents, so a paring back would be a refreshing change of pace from the past 60-years.

[bernard11]

I don't understand something here. The bill,

"prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,”

Now, some of its supporters, including more than one commenter here, and those who dislike transsexuals in general, claim that it is a mental disease. Suppose, arguendo, as I've learned to say, that's true.

Why on Earth are you supporting a bill that prohibits offering psychiatric or treatment, say, for “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,”

Shouldn't you be for that?

[Noscitur a sociis]

As I noted above, the bill defines “medical procedure” (which is the operative language, not “medical treatment”) to mean surgery or prescribing hormones or puberty blockers. It doesn’t cover psychiatric or psychological treatment of any kind (including treatment designed to encourage transgender identity) or the prescription of other kinds of medication.

https://legiscan.com/TN/text/SB0001/id/2755783/Tennessee-2023-SB0001-Chaptered.pdf

[bernard11]

Thanks, but what happens when the QP doesn't match the law in question?

What does the QP do, other than confuse things?

[Noscitur a sociis]

The QP in this case is, in my opinion, an argumentative but not unfair summary of the parts of the law that are relevant to the legal claims being presented. The problem comes when you try to use that paraphrase to make new arguments,

If the question accepted turns out to not actually be the question that the petitioner wants answered, the court is not generally shy about dimssing the writ of certiorari as improvidently granted.

[not guilty]

When the Trump administration takes control of the DOJ, its approach to this case may change. The new Solicitor General may move to dismiss the appeal for cert having been improvidently granted, or the incoming DOJ may seek to use this case to wreak havoc on the standard of equal protection review applicable to sex discrimination.

[DaveM]

Nothing is more demoralizing and depressing than reading "serious" legal arguments that we need to allow the physical and chemical castration of minors.

Ghouls. Barbarians.

[Sarcastr0]

Emotionalist and policy arguments are thattaway.

[Kazinski]

Sean O'Brien the Teamsters union president related the way Kamala put her people skils on display when she met with the Teamsters panel "seeking" their endorsement:

Teamsters President Sean O’Brien on Kamala Harris: she only wanted to answer 3 of 16 questions at her interview with Teamsters members:

On the fourth question, one of Kamala's aides slipped a note in front of O'Brien that said "this will be the last question," which was 20 minutes earlier than the interview's scheduled end time.

And, on the way out, Kamala exclaimed: "I'm gonna win, with you or without you."

https://x.com/kenklippenstein/status/1871376644356903418?t=qnRo5jGEaGwOqj5mmOcPBg&s=19

I really wonder just what Kamala's problem is with taking questions? Is it she's unprepared, which her aides have complained about in the past, refusing to read breiefing materials they have compiled?

Or is she afraid shes going to let her real position on a contentious issue out, that may hurt her (like when asked her position on CA prop -36, which would reinstate penalties for shoplifting.

I get that the reason she came that close to winning was solely because she was not Trump, but did she think that was enough, so she didn't even have to try?

Not that I'm complaining, I'm honestly stumped.

[Commenter_XY]

Kaz...read this. And you'll have your answer.

https://en.wikipedia.org/wiki/The_Emperor's_New_Clothes

[Kazinski]

Either that or it was a dance off.

https://m.youtube.com/watch?v=oCddadxYx_4

[Commenter_XY]

Kaz...It was hubris.

[Kazinski]

Obviously that was her problem with the Teamsters Union.

Its kind of like they had a list of institutions they thought they owned and they would fall in line regardless: Unions, Media, Progressives, and Silicon Valley.

And then everyone else, who they ignored or attacked. But the two biggest miscalculations was that they thought union members came with the Union, and the other was they thought abortion was vastly more important to women voters than the price of groceries.

[not guilty]

Funny you should mention the price of groceries. If Donald Trump is successful in deporting millions of brown folks, who will pick fruits and vegetables at comparable wages? And if the growers increase wages or allow crops to rot, what effect will that have on grocery prices?

[Mr. Bumble]

So you're saying we need 20 million vegetable pickers?

[Moderation4ever]

On a recent trip to my local grocery store I also noted that many if not all the stockers were immigrants. Immigrants do significant amounts of the manual labor associated with food production in this country. So, it is picking the fruits and vegetables, processing the meat, and packing the grocery store shelves.

[Mr. Bumble]

Not in the spirit of the holidays, but you're full of shit.
Happy Boxing Day!

[Frank Drackman]

are they Illegal Immigrants? they're the only ones they're talking about deporting (I'll believe it when it happens) Maybe it's the wealthy suburb I live in, but the Grocery Stores I shop in (yes, I shop for Groceries, like Jim Rockford did) the stocking's done mostly by Asian High Screw-el students. And what is this "picking" you're talking about? is it related to the Fruits and Vegetables? I always skip that area, too many picky customers putting their grubby dick beaters on the merchandise, I get my mashed potatoes like J-hey intended, from the frozen foods section

Frank

[Dr. Ed 2]

Immigrants who work for lower wages.

[Dr. Ed 2]

The cost of picking is a minor component of the grocery store price -- remember that the grocery store doubles what they pay for produce.

[David Nieporent]

Remember that Dr. Ed doesn't make things up.

[Dr. Ed 2]

Ever work in one?

[Brett Bellmore]

I can personally testify that American citizens are capable of picking crops; I did it as a teen along side braceros, as did a lot of my classmates in HS.

Agricultural workers will likely be way down on the priority list for deportation, though, and Trump might negotiate a new bracero program.

But what will likely happen is that agriculture will become more automated, as it would have become years ago if we hadn't had a supply of cheap, safely abused labor.

[Commenter_XY]

This is the correct answer = But what will likely happen is that agriculture will become more automated...

[Sarcastr0]

Trump would need Congress to pass a law if he wants to create a visiting agricultural worker visa.
In the meantime, the blunderbuss policy he proposes and you support would be costly to everyone involved, including you and I.

How long do you think adopting automation takes? And if it were cheaper than cheap labor, why do you think it hasn't been adopted yet?

Like much utopian thinking, your timescales are all different and running together.

[Brett Bellmore]

"Trump would need Congress to pass a law if he wants to create a visiting agricultural worker visa."

Trump WILL have a Republican Congress with which to pass legislation, after all.

"How long do you think adopting automation takes?"

I'd say we could largely automate our farms in about a decade. If Biden can generally give up on deporting illegals, Trump can certainly deport illegals while not prioritizing illegal farm workers.

"And if it were cheaper than cheap labor, why do you think it hasn't been adopted yet?"

And, where did I say it was cheaper than cheap labor?

[Sarcastr0]

So this is all speculation on what would happen if the GOP kills the fillibuster, but doesn't want to pass sweeping reforms to the INA.

And if we nationalize our farms, so we can automate them.

Trump sure can deprioritize illegal ag workers, and become a huge an obvious hypocrite. Like you are right now. So much for rule of law, I guess!

Trump is pretty unwise and may indeed ignore the issues of authority and implementation time as you do, or he may ignore the possibility of a problem altogether.
We'll just have to see!

[Brett Bellmore]

"And if we nationalize our farms, so we can automate them."

Seriously, are you mental or something?

[Sarcastr0]

You're talking about how 'we could' automate in X time.

If you're going to lay out a 10-year plan, I'm going to point out what that means.

Capitalism is great, but it's not one for implementation of top-down plans like you just laid out.

[Commenter_XY]

Brett, it is not mental at all, Sarcastr0 just knows so many things (that just aren't so).

[Brett Bellmore]

Going from "it could happen in 10 years" to "nationalizing"? You are mental.

This is a persistent problem you display: For every sentence you read, you read into a whole book. And then proceed as though the person had actually written it, rather than what they did write.

People practically can't communicate with you, so much of what you read is in excess of what they wrote!

In fact, automation would be the natural consequence of denying the agriculture industry a supply of extremely cheap human labor.

[Sarcastr0]

OK, so when you said "I'd say we could largely automate our farms in about a decade" you didn't mean you anted any action to make that, you just expected that to happen.
Seems kinda chancy language to choose to say that, but fine.

But lets review where we are here:

Mass deportations will raise food prices due to agricultural work having a lot of illegals.
In the short term, you want to mitigate this with a special exception to the deportation for agricultural illegals.
In the medium term, you want to mitigate this by Congress killing the filibuster to create a special agricultural visa.
In the long term, you want to mitigate this by getting businesses to automate to drive their costs, and thus prices down.

Sounds like 1) a new system awkwardly bolted onto our current one instead of reform, 2) an admission that illegals are pretty important, and 3) a bad plan because we'll never move beyond 1. Or if we get to 2, never move beyond 2.
Why accelerate automation beyond what the market is already encouraging?

In fact, automation would be the natural consequence of denying the agriculture industry a supply of extremely cheap human labor.
Automation is already incentivized. Your system to avoid pain to consumers will also mitigates any profit pressure to further push adoption.

[Brett Bellmore]

"OK, so when you said "I'd say we could largely automate our farms in about a decade" you didn't mean you wanted any action to make that, you just expected that to happen."

I was merely expressing an opinion about how fast it might happen. I only expect it to happen if the supply of cheap foreign labor is cut off.

Automation is only incentivised when it is cheaper than non-automation. Which it isn't so long as the country is flooded with illegal immigrants driving down the price of unskilled labor.

It's true I don't want this done so fast the market has no time to adapt. Who would, if their goal weren't to make sure it was a disaster?

[TwelveInchPianist]

And in any event, a progressive tax system penalizes automation, it doesn't incentivize it.

[Kazinski]

Why would Trump need to pass a law to create a visiting agricultural worker visa?

Biden created the CBP One phone app that allowed over 800,000 aliens to be flown into the US at government expense and gave them.work permits housing and other benefits.

I don't remember Congress passing a law.

[bernard11]

But what will likely happen is that agriculture will become more automated, as it would have become years ago if we hadn't had a supply of cheap, safely abused labor.

So then automation will be cheaper than hired (legal) labor, but still more expensive than the illegal kind. (Else why has agriculture not already automated?)

So prices will still be higher, just not as much. Plus, I thought one of the big objections to illegal workers is that they put Americans out of work. But here the same people making that objection are eager to do the same thing, only with machines.

Maybe they are not as concerned about American workers as they pretend to be.

[CountmontyC]

The initial cost to automation may be higher but long term it would be cheaper. We have seen this occur throughout various industries. One example would be self checkout lanes at grocery stores which replaced multiple checkers but the initial cost of the machines was more than the first year savings but starting in year 2 or 3 it became cheaper.
We see the same when almost any new technology is introduced where the cost starts out at near prohibitive levels but rapidly decreases as time passes.

[Peter Kreeft taught me LOGIC, BEWARE !!!!!!!]

historically those fruits and vegeatables were planted long before cheap labor showed up. and increasong wages is hardly a problem if you care a speck about the people who do that hard work,
Grocery stores have a very low margin to begin with so it would probably increase the number of food stores.
I will stop there because I you don't realize that I am making fun of the people like you that were surprised at the arrival of those workers in the first place....

“The people who tell you the world will end are the ones who die off while the world keeps going.”

[Dr. Ed 2]

Grocery stores are high volume and low percentage of profit, which does NOT mean low markup.

[David Nieporent]

historically those fruits and vegeatables were planted long before cheap labor showed up.

Historically food was much more expensive than it is now.

and increasong wages is hardly a problem if you care a speck about the people who do that hard work,

Unless you care about consumers.

[John F. Carr]

Voters in 2024 care about high prices in 2024. High prices in 2028 could cost Republicans the 2028 election.

A lot could happen between now and then. Among them, Trump could be bluffing now or change his mind later. President Wilson got us into the war and Governor Reagan raised taxes.

[Kazinski]

Kind of makes you wonder how we got all that done at reasonable prices before Jan 20th 2021.

[Mr. Bumble]

It always seemed strange to me that the "right" to unrestricted abortion came about at a time in our history when relatively safe and effective birth control became widely available.

[Dr. Ed 2]

An interesting speculation is to list the men you know who would have made excellent fathers if their babies hadn't been murdered.

What I can't get over is the number of women who have TWO abortions in just four years of college. You'd think they would have learned something from the first one...

[John F. Carr]

Instead of stockpiling abortion pills colleges could offer free long term contraceptive implants.

[David Nieporent]

How about the number of stories Dr. Ed has fabricated?

[Dr. Ed 2]

PROVE ONE.

[Absaroka]

Cormorants eat 70 pounds of fish a day?

Japan invading the West Coast was a real threat?

[Peter Kreeft taught me LOGIC, BEWARE !!!!!!!]

That is beause you don't realize the obvious, that birth control increased abortion, drastically., A method that is 99.99% effective WILL fail, about one time in 1000 and that is magnififed by the many more who are taking the pill.

This is Guttmacher, the biggest pro-abortion group in the world
"About Half of U.S. Abortion Patients Report Using Contraception in the Month They Became Pregnant"

[Brett Bellmore]

I've always had a soft spot for Guttmacher; Sure, they're apologists for evil, but they're relatively honest apologists for evil. None of this BS about late term elective abortions not being a thing, for instance.

[Frank Drackman]

My sister joined the Air Traffic Controllers Union back in the 90's when she finished training, not for any of the benefits, but because of what would happen if you didn't join, I think there's a legal term for it...

[Roger S]

The Harris campaign decided, maybe correctly, that answering questions does not win her votes. Her strengths were that she was the Democrat nominee, she was not Trump, and she is a Jamaican-Indian woman scoring DEI. She had nothing else going for her. No one was going to be persuaded by her dopey answers.

[not guilty]

Today's New York Times features a guest essay from retired federal district judge Nancy Gertner and former federal prosecutor Joel Cohen encouraging federal judges to take into consideration Donald Trump's threats to prosecute political enemies when presented such matters as applications for eavesdropping warrant under Title III and defense motions to dismiss an indictment based on selective prosecution. https://www.nytimes.com/2024/12/26/opinion/judges-trump-rule-of-law.html

It is well worth reading.

[Mr. Bumble]

...and what else should judges take into consideration?

[Dr. Ed 2]

Nancy Gertner has gone over to the dark side -- Harvard Law will do that to you. She needs to be viewed as a member of the Harvard faculty and not the distinguished jurist she once was.

That said, I (a) doubt that Trump believes that his phones *aren't* tapped and (b) suspect he has learned how to conduct business on the golf course where it can't be overheard.

I also ask but one question: Whom does she think will still be around to file these motions? And speculating on selective prosecution is rather dangerous because judges could be selectively prosecuted -- the Impeachment of Justice Samuel Chase was a bi-partisan consensus 200 years ago that we don't do such things -- but if the Never Trump Arsonists burn down enough of the civil structure of this country, don't be surprised if Trump actually does something like this...

[not guilty]

Judge Gertner comes from a criminal defense background. I recall hearing her speak in Nashville at a CLE event while she was president of the National Association of Criminal Defense Lawyers.

If Donald Trump and his minions carry through on Trump's threat to prosecute his political enemies, I expect that the defendants' defense lawyers will raise selective prosecution as a basis for dismissal of the indictments. That is an exceedingly difficcult showing to make.

I would think that vindictive prosecution would be an easier showing to make. That requires only that the accused is being prosecuted for his exercise of protected constitutional or statutory rights, without regard to whether other persons who have committed essentially the same offense have not been prosecuted.

Selective prosecution is an equal protection violation; vindictive prosecution is a due process violation. Trump's threats to prosecute his political enemies would be admissible against the government in either case.

[Frank Drackman]

I saw this movie in 1978 "They can't do that to our pledges! Only we can do that to our pledges!"
Let me simplify it for your simple brain,
"Paybacks a Bitch"

Frank

[Dr. Ed 2]

Who says that Federal Judges won't be maliciously prosecuted?

And Jan 6th is Exhibit 1 for selective prosecution and everyone knows it.

[not guilty]

"And Jan 6th is Exhibit 1 for selective prosecution and everyone knows it."

Dr. Ed 2, who do you claim as being a relevant comparator to the January 6 defendants, who were known to prosecutorial authorities but nevertheless were not prosecuted? Please name names and give times and places.

As I wrote on the Monday open thread, in a criminal prosecution a selective-prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution. United States v. Armstrong, 517 U.S. 456, 463 (1996). In particular, the decision to prosecute may not be deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification, including the exercise of protected statutory and constitutional rights. Wayte v. United States, 470 U.S. 598, 608 (1985). Defendants bear a "demanding" burden when seeking to establish that they are being selectively prosecuted in an unconstitutional manner. Armstrong, at 463.

The claimant must demonstrate that the prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory purpose. For example, to establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted. Armstrong, at 465. It is necessary to show that prosecutorial authorities were aware of the comparators who were not prosecuted. See, Oyler v. Boles, 368 U.S. 448, 456 (1962) (no equal protection violation where the allegations set out no more than a failure to prosecute others because of a lack of knowledge of their prior offenses).

Offering evidence that the comparators are "similarly situated" may be an insurmountable hurdle. The Eleventh Circuit Court of Appeals has defined a "similarly situated" person for selective prosecution purposes as one who engaged in the same type of conduct, which means that the comparator committed the same basic crime in substantially the same manner as the defendant — so that any prosecution of that individual would have the same deterrence value and would be related in the same way to the Government's enforcement priorities and enforcement plan — and against whom the evidence was as strong or stronger than that against the defendant. United States v. Smith, 231 F.3d 800, 810 (11th Cir. 2000).

The only ultimately successful assertion of a selective prosecution claim that I am aware of occurred in Yick Wo v. Hopkins, 118 U.S. 356 (1886).

[Dr. Ed 2]

"Dr. Ed 2, who do you claim as being a relevant comparator to the January 6 defendants, who were known to prosecutorial authorities but nevertheless were not prosecuted?"

Absolutely all of the other rioters in the past 3 years.

And don't use the slimy "known to prosecutorial authorities" without conceding the extraordinary prosecutorial EFFORT to make them known. Name one other time when everyone who traveled to a city was presumed guilty until proven innocent?!?

The FBI went though credit card bills to see who had rented a hotel room in DC that day, or who had flown there that day -- imagine how many BLM and ANTIFA terrorists they could have identified with that level of effort!

So don't give me that "known to prosecutors" bullbleep.

[jb]

Lots of, e.g., BLM rioters have gone to prison. That was admittedly more than three years ago, though. Not actually sure which riots your talking about more recently. There were the white nationalists at the Pride parade in Idaho last year, but I think the local police arrested them before they actually got up to too much mischief.

[not guilty]

"Absolutely all of the other rioters in the past 3 years."

IOW, you have no clue. That reminds me of Sarah Palin, when asked what newspapers she reads, replied "All of them." If you don't know something, there is no shame in admitting that you don't know.

And the "known to prosecutors" element of a selective prosecution claim comes from Oyler v. Boles, 368 U.S. 448 (1962). Mr. Oyler's habeas corpus claim was:

"Petitioner was discriminated against as an Habitual Criminal in that from January, 1940, to June, 1955, there were six men sentenced in the Taylor County Circuit Court who were subject to prosecution as Habitual offenders, Petitioner was the only man thus sentenced during this period. It is a matter of record that the five men who were not prosecuted as Habitual Criminals during this period, all had three or more felony convictions and sentences as adults, and Petitioner's former convictions were a result of Juvenile Court actions.
. . . . .
"#5. The Petitioner was discriminated against by selective use of a mandatory State Statute, in that 904 men who were known offenders throughout the State of West Virginia were not sentenced as required by the mandatory Statutes, Chapter 61, Article 11, Sections 18 and 19 of the Code. Equal Protection and Equal Justice was [ sic] denied."

Id., at 454-455. Justice Clark wrote for the Court:

We note that it is not stated whether the failure to proceed against other three-time offenders was due to lack of knowledge of the prior offenses on the part of the prosecutors or was the result of a deliberate policy of proceeding only in a certain class of cases or against specific persons. The statistics merely show that according to penitentiary records a high percentage of those subject to the law have not been proceeded against. There is no indication that these records of previous convictions, which may not have been compiled until after the three-time offenders had reached the penitentiary, were available to the prosecutors. Hence the allegations set out no more than a failure to prosecute others because of a lack of knowledge of their prior offenses. This does not deny equal knowledge of their prior offenses. This does not deny equal protection due petitioners under the Fourteenth Amendment.

Id., at 456.

[David Nieporent]

IOW, you have no clue.

There are so many ways in which he doesn't have a clue, including the fact that he doesn't realize that "BLM rioters" were prosecuted and the fact that he doesn't understand that "similarly situated" means more than just "accused of violating the same statute." Trying to overthrow the government is not the same as smashing the windows of a 7-11.

If you don't know something, there is no shame in admitting that you don't know.

Let me introduce you to Dr. Ed.

[not guilty]

Dr. Ed 2 is by no means the only offender there.

[David Nieporent]

No, but he's the GOAT.

[not guilty]

Still waiting, Dr. Ed 2. For purposes of any selective prosecution claim, who are the relevant comparators to the January 6 defendants who escaped prosecution?

[Dr. Ed 2]

Already answered.

[John F. Carr]

Do you have any precedent to cite on vindictive prosecution in the context of a political dispute? The usual fact pattern is a defendant wins on some issue in a criminal case and is rewarded with more charges or a longer sentence. For example, defendant James Tobin in the New Hampshire phone bank case.

[TwelveInchPianist]

Yeah, based on my quick googling, prosecutorial vindictiveness applies being vindictive against defendants who exercise their rights at trial.

And sometimes not even then. Prosecutors are totes allowed to be vindictive against defendants who exercise their right to plead not guilty, for example.

[not guilty]

For an agent of the State to pursue a course of action whose objective is to penalize a person's reliance on his protected statutory or constitutional rights is "patently unconstitutional." United States v. Goodwin, 457 U.S. 368, 372 n.4 (1982). Thus, a criminal prosecution which would not have been initiated but for vindictiveness is constitutionally prohibited. United States v. Adams, 870 F.2d 1140, 1145 (6th Cir. 1989) (quoting Blackledge v. Perry, 417 U.S. 21, 27-28 (1974). This can include a prosecution initiated in response to the defendant's exercise of First Amendment rights.

I represented a murder defendant who had obtained federal habeas corpus relief based on the prosecution's failure to disclose exculpatory evidence and failure to correct false or misleading testimony elicited by the prosecutors. Bragan v. Morgan, 791 F.Supp. 704 (M.D. Tenn. 1992). The District Court there ordered Mr. Bragan released from custody if he was not provided a new trial within sixty (60) days. The State dropped its appeal of the District Court decision and released the defendant from prison, where he remained at liberty for eleven months without the State making any effort to reinstate the case to the docket.

During that time an attorney representing Mr. Bragan filed a disciplinary complaint against the prosecutors involved. Mr. Bragan granted several media interviews during which he harshly criticized the misconduct of the prosecutors, and he authored an autobiographical book.

In response, the prosecution reinstated the murder case to the state court docket, with the arraignment scheduled for the day the book was to be released. The prosecution at arraignment successfully moved the trial court for a gag order restricting the defendant's extrajudicial comments (which was promptly reversed by the Court of Criminal Appeals of Tennessee).

The defendant was convicted upon retrial. He sought federal habeas corpus relief based on prosecutorial vindictivemess. The Sixth Circuit Court of Appeals found that the Petitioner fulfilled his burden of establishing a reasonable likelihood of vindictiveness, Bragan v. Poindexter, 249 F.3d 476 (6th Cir. 2001), but found that the State had successfully rebutted the presumption. Id. at 484-485.

[Dr. Ed 2]

But did he actually do it?

[not guilty]

Did he actually do the murder? I wasn't there when the fatal event occurred, but I believe his claim of innocence. (After he was released from prison after serving 15 years, he turned down an offer to plead guilty to second degree murder with a sentence of time served.)

His then-wife was convicted of second degree murder in the first trial as a co-defendant. She completed a 15 year prison sentence and testified for the State at the retrial.

In my experience, representing a factually innocent defendant is more difficult than representing a defendant who in fact did what he was accused of.

[John F. Carr]

In the Tennessee case the original, vindictive prosecutor was disqualified and a prosecutor from another district took over the case. The new prosecutor claimed to have considered the case de novo rather than assuming the original prosecutor was right. There was no reason to doubt his word. The original prosecutor had no authority to influence the case and no apparent ability to.

In the current federal system all prosecutors answer to the Attorney General and therefore to the President.

[Peter Kreeft taught me LOGIC, BEWARE !!!!!!!]

What about "i promise not to pardon Hunert" and its effect on the entire proceedings against Hunter.
Sorry, you are cherry-picking your applicatins here. Pretty obvious 🙂

[TwelveInchPianist]

There's certainly nothing wrong with defendants raising selective prosecution claims. As you pointed out repeatedly during the Trump prosecution, they are very difficult to raise successfully.

[not guilty]

Proving selective prosecution is a long row to hoe, no matter who the prosecutor is. As I said, vindictive prosecution is easier to prove. In either event, the promises of Donald Trump, Pam Blondie and Kash Patel to punish Trump's real or perceived political enemies are relevant to making a prima facie showing.

[Dr. Ed 2]

You mean like how Nixon biased Charles Manson's trial?!?

Stating facts, i.e. that certain people violated the law in their pursuit of the evil orange man, is not indication of a vindictive prosecution IF THEY REALLY DID...

And what about the NY AG who ran on a platform of "I will get Trump"? At least Team Trump is pointing out specific criminal acts...

[TwelveInchPianist]

"In either event, the promises of Donald Trump, Pam Blondie and Kash Patel to punish Trump's real or perceived political enemies are relevant to making a prima facie showing."

To the extent that the comments are relevant to whether or not they are being prosecuted based on protected activity, as opposed to real or perceived illegal or unethical conduct, sure.

And I don't know to what extent, if any, using poor judgement in exercising professional discretion is protected.

[Commenter_XY]

There is no similar comparator to the Capitol Building rioters, for purposes of establishing selective prosecution. Unless maybe you count protestors who shut down official proceeding like hearings as similar comparators. That seems to be the catch.

Yick Wo had a good lawyer, heh.

[not guilty]

Do you have examples of protestors who shut down Congressional proceedings, who were not prosecuted? There were (nonviolent) protests inside the Capitol building while the Senate was considering Brett Kavanaugh's Supreme Court nomination, but hundreds of protestors were arrested there.

[Frank Drackman]

Yeah, that (Redacted) Congressman who pulled a fire alarm, and his "Censure" doesn't count as "prosecuted". While not a Felony, it's a crime in the District of Colored Peoples.
Code of the District of Columbia
§ 22–1319. False alarms and false reports; hoax weapons.
But you already knew that, or are you one of those Shysters who doesn't already know the answer to the question he's asking?

Frank

[Commenter_XY]

I don't think there is a similar comparator, NG. That is my point.

No case for selective prosecution can be made here because there is no similar comparator to the Capitol Building rioters.

[Krayt]

"Selective prosecution" is something he's well-versed in. Neither side should do it, but what goes around comes around. You were warned for 8 years now, stop it.

Go full bore on politcal resistance, but stop the selective prosecution.

And you are shocked! Shocked!

Watch this, the hand is quicker than the eye: just build your cases in a manner so it seems like organic discovery of possible criminal behavior, then go around faceting how surprising to you, let's continue because of our disinterested concern for rule of law.

Remember when he won in 2016, and said, immediately, nah, we're not actually gonna try to jail Hillary? Everyone made fun of that because it just emphasized the rhetorical nature of it.

That makes him slightly less repugnant to the Constitution than you guys. At least on this issue. Because he declined to procede on at least one issue, whereas you have 0 declinations.

[Krayt]

And don't say, "They declined to prosecute in this, this, or this case." Those decisions would have been due to weakness in the case. At no point, ever, did someone in the power tree say, "You know what? This is just obviously turning the power of government against a political opponent, because he's an opponent. Let's stop."

[jb]

He didn't decline to engage in political prosecutions. It's that when he asked his people to go gin up cases, they failed to find credible ones.

FWIW, while I do agree that at least the New York case probably wouldn't have been brought against a typical real estate fraudster (so you're right that there's some political motivation), some of the state prosecutions in the fake electors case intentionally declined to charge Trump while proceeding against basically everyone else involved. So I don't think it's correct to say that no one declined to prosecute him.

[Brett Bellmore]

He could certainly have come up with a credible case against Clinton, but by the time he'd taken office they'd done a thorough job of immunizing most of the people involved, and had destroyed much of the evidence.

They did a very good job of rendering prosecuting Clinton infeasible, even if you could tell she was guilty.

[jb]

Not sure who "they" is, but if your point is that there was not much of a case against Hillary I'd agree with you.

[David Nieporent]

Remember when he won in 2016, and said, immediately, nah, we're not actually gonna try to jail Hillary? Everyone made fun of that because it just emphasized the rhetorical nature of it.

That makes him slightly less repugnant to the Constitution than you guys. At least on this issue. Because he declined to procede on at least one issue, whereas you have 0 declinations.

That is not in fact what happened. He tried to get his DOJ to go after Hillary, but they told him there wasn't any basis.

[Noscitur a sociis]

Once again, we must destroy the rule of law in order to save it.

[Dr. Ed 2]

Just 25 days to the Apocalypse.

Part of me almost hopes that Trump does everything that the left is claiming that he will.

[Frank Drackman]

Après moi, le déluge, Next train to Nuremberg, all on board!

[Moderation4ever]

I hope you enjoy the high prices from tariffs and lack of foreign born workers.

[Frank Drackman]

You mean the tariffs Sleepy Joe (forgot? didn't know they were there in the first place?) kept from "45"'s first term? funny how the inflation didn't start until Sleepy started throwing Benjamin's around like P Diddy at Scores, and all the "foreign born workers" I employ are here legally (it's not that hard) as far as I know (I ask them, what, is there supposed to be some document that says they can work? I'm supposed to say "Show me your Papers!""??? that's for the Jefe to worry about)

Frank

[Mr. Bumble]

Is that why prices have been so high for the past four years?

[Peter Kreeft taught me LOGIC, BEWARE !!!!!!!]

Another person who argues like Hillary.
"We can have open immiagration and get rid of all the Tren de Araguka and put them all in med school and ....."
NO, actually you can't.
Do you want your children killed by Tren de Arragua or don't you.

Venezuelan gang Tren de Aragua now in 16 states: Report
Tren de Aragua is in 16 U.S. states, according to the New York Post

[Dr. Ed 2]

First tariffs are only a form of taxation, and can be revenue neutral.

Second, I'd like to see a shortage of foreign workers -- then Americans would get hired...

[Frank Drackman]

I don't know, you can't go into a Dialysis Clinic unless you have a slight Indian accent.....Something about keeping up with those Electrolytes, Albumin/Creatinine Ratios, KTv, URR, that just makes Amurican Docs eyes glaze over.

[SRG2]

First tariffs are only a form of taxation, and can be revenue neutral.

"Only" and "can" are carrying a lot of weight here. Tariffs are taxes only on foreign goods, and will be revenue neutral only if tazes are cut elsewhere. Further, "revenue neutral" by itself doesn't tell you how revenues are moved around. Tariffs, like sales taxes, tend to be regressive which is not usually regarded as a desirable outcome.

[Frank Drackman]

"Regressive" you mean Po Peoples pay the same tax on their Cigarettes as the Rich Peoples?? (who mostly don't smoke anymore, I'm the rare exception, I'm working on it) same Sales Tax as Rich Peoples?? (except on Lottery Tickets, which aren't taxed and Rich Peoples don't buy, wow, it's almost like they're encouraging Po Peoples to gamble) and same Social Security Tax as Rich Peoples (more actually, as Rich Peoples stop getting taxed at around $160K or so, and that's only those commoner Rich Peoples who make their money working at jobs)

Frank

[David Nieporent]

Moreover, they can only be revenue neutral from the perspective of the U.S. Treasury, not from the perspective of individual Americans.

[Noscitur a sociis]

“Revenue neutral” means that it wouldn’t increase the government’s revenue, because it’s offset by tax cuts elsewhere. (There is, of course, no guarantee that would even happen.) It doesn’t mean, or even suggest, that it wouldn’t increase prices for consumers.

[Sarcastr0]

Ed, who regularly posts about the dire and sometimes violent police state stuff he hopes Trump will do, tries to pretend he didn’t say any of that, so he can point left.

Many others can try and argue the left are overwrought. Ed doing so is ridiculous.

[Dr. Ed 2]

Gaslighto has become Obtuseo

[Dr. Ed 2]

Christmas 1967 -- when high school students went around to sing Christmas Carols to their teachers. When America was still sane.

We have lost something....

[Frank Drackman]

and just a year or 2 later when they still had School "Nativity Plays" I was a Shepherd keeping watch on my flock, of course that was Barksdale AFB, right next to Shreveport, they probably still have them there

Frank

[hobie]

you pinin' Ed?

[Frank Drackman]

They Speak Engrish in What?

[Noscitur a sociis]

Yes, the culture of the late 60s is definitely the America you like.

[David Nieporent]

We have lost something....

Dr. Ed misses the time when Jews, blacks, women, gays could be openly discriminated against.

[Ed Grinberg]

https://www.fox9.com/news/richfield-man-charged-murder-after-shooting-group-stealing-items-from-his-van-charges

I think Mr. Cain was morally justified in what he did.

There's little doubt that he'll be convicted under Minnesota laws:
https://reason.com/volokh/2020/12/21/duty-to-retreat-35-states-vs-stand-your-ground-15-states/

I think there's a good chance he'd be convicted even in a "stand your ground" state like Iowa:
https://web.archive.org/web/20180711222942/https://www.weareiowa.com/news/local-news/what-does-the-stand-your-ground-law-mean-in-iowa-/1296121222
https://www.desmoinesregister.com/story/news/crime-and-courts/2020/09/16/is-iowa-a-stand-your-ground-state-self-defense-law-explained/5803540002/
https://www.legis.iowa.gov/docs/code/704.pdf

[hobie]

Secretary of Defense Kyle Rittenhouse will press Trump to pardon the killer. He'll be fine

[Frank Drackman]

Kyle's still a little young, maybe during the JD administration. Hey, I haven't kept up with your little Red state, who's going to replace JD? some other "Hayseed"??
I know, I'm "Amurica's neediest Veteran" really, do like Ohio State, and come up with some new plays (Ohio State's the Hilary Rodman/Cums-a-lot of College Foobawl, leads the polls, great "Ground Game" but they always lose when it really counts)

Frank

[ObviouslyNotSpam]

The article indicates that Cain fired at a vehicle driving away, hit one of the occupants, who then died from a gunshot to the head.

How do you "morally justify" using deadly force against someone who is not a threat to you (or anyone else)?

Just curious.

[Frank Drackman]

Not a threat to anyone else? are you Psychic? Retarded? That's the benefit of having an untraceable back up gun, if the dirtbag I shoot didn't have a gun when he came on my property, he'll have one when the police show up.

[Dr. Ed 2]

The problem is when he winds up with TWO -- his gun and your gun.

[Krayt]

Thieves are inherenly an ongoing threat. Current state of the law is due to value judgements that shooting a fleeing crook in the back is disproportionate.

[ObviouslyNotSpam]

You're not Ed, but are you attempting to offer a moral justification for shooting a fleeing thief in the back (of the head)?

From a legal perspective, thieves fleeing the scene of a crime are not considered an "inherent threat" justifying deadly force in any jurisdiction I'm aware of.

[Lennyk78]

There are many jurisdictions that do, but they're limited by the outrageous Tennessee v. Garner decision.

[Krayt]

No, but I am amused you might think so. Killing thieves has't been done since the old west, and even then it was for stealing horses, expensive capital equipment and a man's livelihood.

[ObviouslyNotSpam]

Yes, that's (allegedly) exactly what Mr. Cain did.

I was just curious how Ed would justify that on grounds of "morality".

Sadly, we shall never know...

[Stella Link the dog]

"From a legal perspective, thieves fleeing the scene of a crime are not considered an "inherent threat" justifying deadly force in any jurisdiction I'm aware of."

Maybe Texas. Back in 2007, a Pasadena, TX man, Joe Horn, went all Mr Ed on a couple illegals who had burgled his next-door neighbor's home. Horn was in his house when he learned of the two thieves and exited his house with a shotgun and confronted them, killing both. I believe it was a Harris County grand jury that failed to indict Horn. Joe has his very own Wikipedia page on the topic.

For even more fun in Texas, consider Houston man Jerry Casey who shot repo-man Tommy Dean Morris with, I believe, a .30-30 when Casey caught Morris repossessing Casey's truck. Morris died. Harris County grand jury declined to indict. This was in 1994 or late 1993.

Having lived in Texas for a long time and being familiar with common Texan attitudes, I'm rather surprised that either case went to a grand jury. Many Texans, for example, seemed to think that Horn was deserving of a parade.

[John F. Carr]

To the best of my knowledge, only Texas lets you hunt down a thief to get your stuff back, and even in Texas there are limits.

The jury may have an option to convict of manslaughter.

[Dr. Ed 2]

Jay Leno once said that "needed killing" was justifiable homicide in Texas.

[Ed Grinberg]

Things are going swimmingly in Minneapolis. After four years, the city leaders have announced plans to replace the police-station burned down during the 2020 riots with ... well, see for yourself:

https://www.fox9.com/news/mpd-precinct-democracy-center-business-organization

Who needs cops anyway!

[Frank Drackman]

Can't wait for the Floyd George Theme Park, free needle exchange/shooting gallery, Inflatable punching clowns for future Floyd Georges to work on their hooks and uppercuts, and the "I can't breathe Simulator" that replicates the effect of a lethal dose of Fentanyl on the respiratory center

[Sarcastr0]

At the top of the page at your link: "Minneapolis Mayor Jacob Frey details his support of his preferred site for the new Minneapolis Police Department 3rd Precinct prior to a full Minneapolis City Council vote on Nov. 2."

So they're moving the precinct, and this is about how to use the old site.

Said new use to be: "a mixed-use democracy center that would house elections and voter services. It would also include a ground-floor space for "community use.""

So a new police station and also community center with voter services. Sounds good to me!

[Frank Drackman]

How about a Zoo with a Monkey House? oh wait, that's the Minneapolis-St Paul Airport

[John F. Carr]

Yesterday Russia shot down another civilian airliner. The airliner was headed towards Grozny from the southeast while itchy trigger fingers watched for Ukrainian drones from the west. Apparently it went like the Sioux City crash in 1989. The pilots lost hydraulics and had only enough control for a crash landing. After the Sioux City crash the NTSB asked pilots to fly a DC-10 simulator without hydraulics and none of them could put the plane down intact.

Russia, as the successor state to the USSR, has a commanding lead in the airliner shootdown statistical category. Weighted by length of international borders, maybe some small African country takes the throne.

There is currently a ban on American flights going through Russia within 160 nautical miles of Ukraine. This is a safety rule separate from sanctions. The no fly zone may need to expand.

One military blogger pointed out that it's not really practical to shut down all the airports within range of Ukrainian drones. Russians will need better procedures.

[Frank Drackman]

Take Greyhound

[Mr. Bumble]

...and leave the driving to us.

[Dr. Ed 2]

Isn't shooting down civilian airliners a war crime? Where is this World Court????

[tylertusta]

I'm sure the joke that is the ICC will get right on it right after they hold Russia accountable for the last time they shot down an airliner.

[Frank Drackman]

Not so fast my "Dr" friend!
Amurican Navy shot down an Iranian Airliner in 1988, for some background, Iranian F-14's had been pretending to attack various Navy ships, and even the Iranian Airliners had been busting balls (those crazy Iranian Pilots!) saying they were F-14's (the F-14 is a big Jet) so when your CIC (I'd tell you....) tells you, the Captain, that an F-14 has you locked on, and you've got 30 seconds to decide to shoot or get shot....
turned out it was an Iranian Airbus A300, as we used to say on the mean playgrounds of No-Fuck Vagina,

"My Bad"

Frank

[John F. Carr]

This time it was probably an accident.

[David Nieporent]

Deliberately shooting down civilian airliners, like deliberately targeting civilians in any way in a war (as opposed to them being collateral damage), is a war crime. Does anyone other than Dr. Ed think that the Russians said, "Hey, there's a civilian airliner; let's shoot it down"?

[Dr. Ed 2]

Actually, airports usually ARE shut down during wars.

[John F. Carr]

Airports near Ukraine are shut down. If they have to shut down Moscow too it's a big deal.

[Krayt]

One little factoid about the Sioux City crash, IIRC. A few decades ago, politicians haughtied around wanting to force airlines to give babies free seats. Parents could opt to let kids under a certain age sit on their laps to save money.

But you don't get something for nothing. Objectors noted that free seats for babies increases other seat prices by a fractional amount, and that, for every dollar increase, you get a small fractional proportion of the population who says, to hell with it, and stays home, or decides to drive.

As it turns out, driving babies is far more dangerous than flying with them on your lap. Enough to make a difference?

At the end of the Frontline documentary, they pointed out an analysis of actual crashes, that, of survivable crashes, this might have saved the lives of 2 babies. And one of those the baby lived anyway because it flew up into an open overhead compartment. This was the Sioux City crash IIRC.

[jb]

According to Dr. Ed on Monday, shooting down an airplane accidently is caused by wokeness. So the Russian military must have gone all in on wokeness to get these sorts of results.

[Commenter_XY]

Is there a potential contract issue, John F Carr? Meaning, airlines contract for airport rights. If airlines are denied access to what they paid for, what's the redress? Is there one?

[John F. Carr]

I don't know Russian law on the subject. In the USA the FAA grounded all commercial aviation for three days in September, 2001 and shut down some general aviation airports for longer. The government has a lot of authority when it claims to be acting in the name of public safety. When it comes to Americans flying overseas, the power to regulate international commerce is greater than the freedom to contract.

https://www.faa.gov/media/76196

[Martinned2]

What a way to spend Boxing Day, trying to convince people on social media that Canada should really prioritise preparing for all the stupid things Trump will do with trade policy over preparing for the possibility that he might launch a military invasion.

[Dr. Ed 2]

Why invade Canada?

Now as to Mexico...

[Roger S]

Canada is becoming a failed state that will eventually have to be taken over by the USA. Taking it sooner might be better for everyone involved.

[JoeFromtheBronx]

Let's not forget it is also the first day of Kwanzaa.

[Frank Drackman]

I forget what dish is featured that day, Fried Chicken? Watermelon? Malt Liquor? Kool-Aid?

[Mr. Bumble]

Not a big Ann Coulter fan, but:
Happy Kwanzaa! … The Holiday Brought To You By The FBI

https://anncoulter.com/2019/12/25/happy-kwanzaa-the-holiday-brought-to-you-by-the-fbi-6/

[Mr. Bumble]

Let's forget it as almost everyone else has.

[Dr. Ed 2]

Yes, the holiday brought to you by the FBI...

https://anncoulter.com/2019/12/25/happy-kwanzaa-the-holiday-brought-to-you-by-the-fbi-6/

[Drewski]

"What a way to spend Boxing Day, trying to convince people on social media"

I mean. . . stop hitting yourself.

[DaveM]

Canada's richest province is poorer than the poorest state in the US, I believe. Poorer than Mississippi. Yikes.

[JoeFromtheBronx]

Local news story:

Sean “Diddy” Combs and Luigi Mangione spent Christmas Day inside the Brooklyn Metropolitan Detention Center (MDC), where one report online said cornish hen and green beans were on the menu.

A relative is quite shocked that Luigi Mangione "threw his life" away by murdering someone. "He's so young. He's rich" etc.

Yes. Murderers do sometimes tend to have poor reasoning skills.

[Frank Drackman]

Are you kidding me? It's New York City, where an Illegal Guatemalan Immigrant burned a woman to death on the Subway (Thanks DA Potato Head, nobody stepped in to stop the guy, I think that's what's called, a "Chilling Affect" or is it "Effect"?) and they still haven't been able to identify her from the ashes yet. Luigi's going to be the White OJ. But don't worry, I hear it on good authority that you're more likely to get burned or shot to death by a native born Amurican

[bernard11]

Are you still buying the story that NYC is a crime-ridden cesspool.

You might want to look at the numbers. People are lying to you.

[Commenter_XY]

YOU might want to try to ride the E line from lower Manhattan (the oculus) to Port Authority. Then come back and tell us we are hallucinating. 😉

[John F. Carr]

Mangione's mental flaws are different from the guy who gets cut off in traffic and starts shooting. He's more of a Unabomber type.

[Krayt]

"He's young. He's rich."

There was a guy on the game World of Warcraft, who had 32 accounts. He coordinated them all from one machine, and would march them around in dance formations. He's use a fun power to connect rainbows between them, and have these giant rainbow dances that would make an old Hollywood musical jealous.

Now that's the kind of thing I imagined an inheritor scion should be wasting their effort on!

[Bored Lawyer]

"He's so young. He's rich" etc.
Yes. Murderers do sometimes tend to have poor reasoning skills.

And rich people often have poor child-raising skills. I suspect that explains much of what happened here.

[Absaroka]

Here is a shoplifter facing a stiff sentence.

It doesn't sound like she was some super organized mastermind, but it does sound like she is a serial shoplifter, with 21 convictions since 2001 (there may be a typo - it says she is 32, so a 2001 conviction would have been as a juvenile, and I'd expect that to be sealed).

Putting that anomaly aside, I'm curious how society should handle people like this, who commit minor crimes over and over, well into adulthood? It's not like any of them were ax murders, but she has done a lot of them (and I doubt she was caught every, or maybe even most of the time).

I expect Dr. Ed will call for drawing and quartering, but I'm more interested in what more thoughtful commenters thing? Just keep arresting her over and over? Long sentence (if so, how long)? Something else?

[Brett Bellmore]

This is a reminder that most crime is committed by a tiny fraction of the population who are repeat offenders, and that while each crime individually may be small, they annually rack up a pretty high total.

So, how about trying something like a tracking collar after the 1st offense, with removal being a strict liability crime, so that subsequent offenses are easily caught and proven? That will sort out the ones who are actually capable of refraining. Then three strikes and a long sentence for the ones who aren't.

[Sarcastr0]

It is amazing to me how often Brett stumbles into what would be an unoriginal dystopian fiction proposal, but he's serious.

[Absaroka]

Can you elaborate? GPS ankle bracelets are a thing. I'm not sure they would work well for a case like this - Shoplifter Sally presumably has to visit the grocery store from time to time. But maybe it's a reasonable strategy for say a first offense burglar or car prowler? You find a string of burglaries, so you see whose ankle bracelets visited those houses? Can you be more specific on how that is more dystopian than a lot of unsolved burglaries?

Even better, be constructive and propose a better solution!

[Sarcastr0]

He didn't say ankle bracelet, he said tracking collar.
That is, to me, quite a distinction!! I could speculate why he didn't made that distinction, but I'll leave that to him.

But it is pretty dehumanizing in degree and in kind, compared to an ankle bracelet. Which makes his windup about how criminals are not like 'the rest of us' all the more sinister.

We should not make criminal laws under the presumption that those that run afoul are not like the rest of us. That gets...dystopian. No better word for it.

I don't think there is a good solution that wouldn't be some mixture of too radical and too costly, as I detail below.

[Absaroka]

"his windup about how criminals are not like 'the rest of us' all the more sinister."

Are you referring to "most crime is committed by a tiny fraction of the population who are repeat offenders". I don't think that is contested. The first hit I got: "The distribution of convictions was highly skewed; 24,342 persistent violent offenders (1.0 % of the total population) accounted for 63.2 % of all convictions."

One study, Sweden, violent crime only, etc. I'm all ears if you have contrary evidence.

[Sarcastr0]

It is not contested. The upshot he uses that statistic for is, however.

It's a lot like 'blacks commit the most crimes.' That is also not a contested stat. But some use that stat in service of some bad arguments.

[Brett Bellmore]

The upshot I use that statistic for is that, once you've identified a member of that tiny fraction of the population, it's worth going to some lengths and expense to incapacitate them, because you're not stopping one future crime, you're stopping a lot of future crimes.

[Sarcastr0]

That's precrime.

[Absaroka]

Really?

Bob should get the same sentence for his 11th mugging as Bill gets for his first?

[Brett Bellmore]

No, it's postcrime, because you don't do it until they've been convicted.

[Brett Bellmore]

The reason in this case I suggested a tracking collar rather than an ankle monitor, is that it was in the context of shoplifting, and the collar would make it easier for the store to know they had a shoplifter on the premises. Ankle monitors are used to conceal from other people the fact that the person before them is a criminal, but I don't think that's the sort of thing that should be concealed.

People around you knowing that you're a criminal is a perfectly reasonable consequence of having been convicted of a crime.

I'm kind of tired of this "dehumanizing" rhetoric. She's human. I'm not proposing to treat her otherwise, I'm proposing to treat her as a human shoplifter. A HABITUAL human shoplifter.

[Sarcastr0]

Scarlett Letter style justice has a lot of issues that were explicated pretty well by the Scarlett Letter story itself.

You're using the state to create an inevitably social stigma.

You see it sometimes, with people being forced to wear signs saying what they did, etc. But it's adopted rarely, and more as performance than policy.

It's a very authoritarian use of state power.

[Brett Bellmore]

Yes, I think being a criminal should carry a social stigma. Everywhere this woman goes, the people she encounters should know that they are dealing with a habitual criminal.

The state appropriately subjects those adjudicated guilty of crime differently than the innocent. If you don't want to be subject to that?

Don't commit crimes.

[Noscitur a sociis]

So, how about trying something like a tracking collar after the 1st offense, with removal being a strict liability crime, so that subsequent offenses are easily caught and proven?

How would that have made it easier to catch her or prove these crimes?

[Dr. Ed 2]

Dr Ed actually wonders if she is mentally ill.

[Krayt]

Yeah there's a famous actor(ess), long past starlet status, who was into kleptocracy, kept getting caught, and was certainly not hurting for money.

[Frank Drackman]

Yeah, Winona Ryder, she can pick my pocket anytime.

[TwelveInchPianist]

"Putting that anomaly aside, I'm curious how society should handle people like this, who commit minor crimes over and over, well into adulthood? It's not like any of them were ax murders, but she has done a lot of them (and I doubt she was caught every, or maybe even most of the time)."

Corporal punishment. Caning. You make your point without all the problems incarceration causes.

[TwelveInchPianist]

Of course, another option is to fire the people who run schools in the black community providing shitty education at three times the cost, and give black kids a decent education in a safe environment.

[Absaroka]

Given the location, I don't think bad schools in black communities is a factor here.

[TwelveInchPianist]

Yeah, I didn't click on the link and thought you were talking about a different case. My bad.

[Dr. Ed 2]

What's not being said here is that the stores make a profit off shoplifters. Wyoming has a law similar to many states:
WY Stat § 1-1-127 establishes a *civil* liability for shoplifting which includes both the stolen goods (if unopened) *and* twice their retail price, *and* attorney's fees.

When you realize that most stores have a 50% markup, that means that they are getting back six times their actual loss -- that's good money.

What I find telling here is that they identified her as already being trespassed from the store -- she has a unique handcuff tattoo on her right wrist -- and didn't kick her out at that point. No, they waited for her to steal some stuff, knowing that they'd get 600% profit on it.

And when you look at the security that a place like Walmart has, not just the off-duty police officers but all of the cameras and such, I really don't think that many people get away with it.

Oh, and as to the 2001 conviction, assuming she'd turned 10 (i.e. a December birthday and subsequent theft), as it is a CIVIL matter, wouldn't it be public regardless of her age? (The statute says her parents wind up paying.)

[David Nieporent]

When you realize that most stores have a 50% markup,

From which orifice is this dumbass pulling out this ludicrous statistic?

And from what depths of idiocy does he think stores routinely collect money from shoplifters?

2001 conviction, … as it is a CIVIL matter, wouldn't

Sigh. Every time you think he can't get stupider.

[Sarcastr0]

There isn't a lot of context for this womans' life (nor should there be, privacy being a thing) so I'll turn to your more generalized policy question.

Repeat, minor offenders despite getting caught a lot could have one or a combination of any of the following:

-A mental illness that is not a sufficient danger to themselves or others to warrant the loss of independence involuntary commitment would entail.
-Poor and lack sufficient other options.
-Or they could just be sane, but lack judgement.

I'd say each requires different society-wide approaches that are expensive.
- better mental health infrastructure;
- better social safety net [note that better does not necessarily just mean more],
- more tailored penal options with more resources to implement them.

And even if all implemented, we're not getting rid of such behavior entierly.

In other words, this is pretty baked into our society as currently shaped. I, by and large, like our society as currently shaped. So there is just going to be a baseline amount of this stuff and the thing to consider is less how to prevent than how to mitigate it.

[TwelveInchPianist]

"-Or they could just be sane, but lack judgement."

I suppose the other option is that she's sane, and is exercising rational judgement. Many people prefer to get things for free than to pay for them.

In that case the state took a step in the right direction by increasing the penalty. But someone shouldn't get years of free stuff before we put a stop to it.

[Michael P]

Or ... we could just lock them up for good, and put them to work to help recoup the costs of incarceration. That addresses all three of your cases while equitably distributing the social cost so that it is not all borne by crime victims, while discouraging others from going down the same path.

[Sarcastr0]

I don't think we want a society that locks up inveterate shoplifters for good, actually.

Your childlike logic suggests the death penalty for everyone who shoplifts. You might want to add some nuance to your law and order wankery.

[David Nieporent]

I don't want to be a society that locks up inveterate shoplifters for good. I also don't want to be a society that lets inveterate shoplifters continue to harm others because they cannot/won't control themselves and we feel sorry for them.

There are no great answers, but one thing I think is clear is that continually letting them off with short sentences manages to be both expensive and ineffective. It serves none of the possible purposes of a criminal justice system.

[Sarcastr0]

I'd agree if this particular lady was an exemplar of a broad problem.

The fact that she made headlines make me think she is the exception rather than the rule.

As such, I'm somewhat more sanguine with her being part of the churn inherent in any massive system. It suck anecdotally, but the cures are all worse systemically.

Though a probation requirement to get and sustain mental health evaluation and treatment might not be a bad use of resources...

[Absaroka]

@DMN: my guess is:
1)exponentially increasing sentences. So a stern talking to for the first offense, 10 days for second, 30 for third, and so on up. By the time you get your 20th, maybe 5 years. I don't have strong feelings on the exact numbers, but just repeated slaps on the risk is doing the same thing over and over and expecting a different result, and we know what that is.
2)IIUC (psychology isn't a strong suit of mine) the immediacy of the penalty matters; a small penalty tomorrow matters more than a large one later[1]. The classic shoplifting case, where the thief gets caught with the goods in the parking lot, seems like one you could adjudicate within a day. It's not like a murder case where you need to hire forensic experts. So caught today, trial tomorrow, then the next three days picking up trash in an orange jumpsuit.

[1]less so for you and I, perhaps. The ability to do thinks today in return for a reward (or avoiding a penalty) later isn't evenly distributed. Chronic offenders likely have a lot less of that ability than most.

@Sarc: "The fact that she made headlines make me think she is the exception rather than the rule"

1)Even if so, that avoids the point: I'm asking what to do with the cases of which she is an exemplar, not how lenient to be with first offenders.
2)Citation needed. I hear of people with yuuuuge rap sheets all the time. Several years the Seattle paper did an expose: the median number of convictions for car theft before being sentenced to any jail time (other than perhaps not being to make bail if not released on PR) was 11 convictions. The clearance rate was in the single digits, so that 11 convictions probably meant stealing over 100 cars. Even if you are stealing $5K junkers, that's a cool half million before serving a day.

[not guilty]

I once represented a prison inmate who was sentenced to life in prison as a habitual criminal for five counts of forgery. (She had 24 prior felony convictions.)

I challenged the constitutionality of the habitual criminal statute on equal protection grounds under the state constitution. The statute (repealed effective November 1, 1989) defined any infamous crime as a triggering offense under the habitual criminal statute. Under then-prevailing state law, forgery was an infamous crime, while the related offense of uttering forged paper was not.

I based the equal protection challenge on Skinner v. State of Oklahoma ex rel. Skinner, 316 U.S. 535 (1942). The Oklahoma habitual criminal statute at issue in Skinner included grand larceny as a triggering offense but not the intrinsically similar crime of embezzlement of over twenty dollars.

The trial court and the Court of Criminal Appeals disagreed with me and upheld the habitual criminal sentence, opining that the statute passed rational basis review. State v. Russell, 866 S.W.2d 578, 580 (Tenn.Crim.App. 1992). At no level of proceedings, however, did the State proffer even a rational basis for distinguishing between forgery as a triggering offense from uttering forged paper as a non-triggering offense. Neither did any court which considered the matter.

My client was later released from prison as a non-violent offender in order to relieve prison overcrowding. My then-wife and I successfully represented her at her parole hearing, but I don't know what has since become of her.

[Absaroka]

With all respect, that's pretty generalized.

"A mental illness that is not a sufficient danger to themselves or others to warrant the loss of independence involuntary commitment would entail." : "better mental health infrastructure"

So ... just live with her shoplifiting over and over? This source says "Stores catch shoplifters roughly 2.0% of the time; the average shoplifter is arrested once out of every 100 incidents.". That seems a little unlikely for this lady - with a conviction per year she'd be stealing twice a week, but still. You say "danger to themselves", but you seem to be ignoring the cost to society at large. What kind of mental health care would you envision to solve this lady's problem - and the problems she is imposing on society?

"Poor and lack sufficient other options".
1)I'm skeptical that motivated people can't find sufficient social safety net programs to avoid stealing.
2)Even if that would justify stealing rice and beans, it hardly seems to justify stealing steaks, or for that matter people who get caught stealing a TV. What would you do for someone stealing electronics and beer?

"Or they could just be sane, but lack judgement." : "more tailored penal options".

Great! That's the kind of solution I'm asking for. How would you tailor those for the lady in question?

[Sarcastr0]

That part of the issue is generalized, because the solution to the problem would have to be generalized. At least with our current knowledge of mental illness.

The current legal lay of the land is we don't involuntarily commit people unless they present a harm to themselves or others. That does not currently include property. If we change the law so it does include property, we are vastly increasing the scope of involuntary incarceration.
I don't see another way to draw that line that includes this woman and not lots of other people currently out and about.

We had a regime with lots of commitments. Round about the 1980s we decided that was a bad choice where individual liberty was involved. When I was younger I was more skeptical of that choice, but now I tend to agree that the cost and abuses were not worth the benefits. Even when the benefits are high costs like this.

I'm skeptical that motivated people can't find sufficient social safety net programs to avoid stealing
I did say it was likely a combination of the three. And that it was hard to be sure what was going on in this case, so I was discussing the issue more generally, as you ask about in your second paragraph above.
A better safety net (again better does not just mean more) addresses stuff like the need for variety and individual choice that is a need people have, even if not strictly material.
---
Tailored penal options would include counseling, diversion, social work. Probably other stuff I don't have the expertise to know about.
It would be expensive and difficult to create an infrastructure and culture that would allow such options to be easily enforced and accepted.

[Absaroka]

"the solution to the problem would have to be generalized"

I'd be happy to hear just a subset of the general solution, namely what to do about this woman (make up whatever hypo details you'd like if you need to).

The set of general solutions is just the union of all the specific solutions. When you can't name even one specific solution, it comes across as just dodging the issue.

[Sarcastr0]

I don't have the facts to know. It's going to be very fact based, depending on what she's got going on wrt the 3 factors I listed, with many of the solutions being systemic and not individualized.

That's why as it is the solutions that are possible are ones that do not fit, being either too harsh (to most people), or to lenient (to most people).

You really want this to be simple. It is not. There is a reason this problem has not been solved yet - it is not low hanging fruit.

The commenters on here who think there's a simple solution have some outlier values about this lady's humanity.
Were I to go to a leftist forum with this, I presume I'd find those offering a simple solution due to their outlier values about this lady's fault.

I'm not trying to be cagey or coy! This is just an iceberg problem that's deeper and more complex than it appears.

[Absaroka]

No. I'm asking what to do about a hypothetical woman who gets convicted once a year, year after year.

If you want to say she's a klepto, fine. What do you do?

If you want to say she's stealing T-bones to feed her starving kids, fine. What do you do? For example I expect you'd say 'give her an EBT card'. Great. Then if she steals again ...what?

If she says she isn't klepto and her kids aren't hungry, she just wanted a six pack, what tailored option do you have in mind for her? Jail? How long after a 20th offense? A minder to follow her around? A halfway house with support groups (and if she steals beer while at the halfway house...)?

[Sarcastr0]

OK. Lets stipulate that the hypothetical woman is known to be dealing only with the mental health part of the issue. Lets further stipulate that no systemic changes are on the table.

Then? You're out of options. Everything is too much (long-term jail time), doesn't address the issue (short term jail time or probation or the like) or is too expensive to scale at that level (treatment requirement via probation system).

I don't accept any of those alternatives under the narrow fact pattern you've described. Maybe there's another way I'm not aware of - I'm certainly no expert in the area.
But from what I understand, our system as currently constituted doesn't have a good way to deal with this kind of situation. At least in keeping with the social values most, including me, espouse.

[Absaroka]

So we have a kleptomaniac. She admits she will steal repeatedly; she just can't help herself.

Your view is that any kind of custodial care - jail or mental facility - is unacceptable. We just let her steal over and over. The people she steals from just have to MTFU and accept her behavior. Do I have that right?

The morality here is that custodial care is morally wrong for mere monetary damages? For any amount of damages? If megalomania drove Bernie Madoff (as opposed to mere greed) then incarceration is inappropriate?

[Sarcastr0]

As I said above, when I was in law school I learned about the 180 in US policy about involuntary commitment around 40 years ago. I thought that was a bad change.

But I've since been converted. It was a good change to get rid of the old mental health regime.
Antisocial behavior or property costs are not sufficient for indefinite commitment/incarceration. The system was costly, immiserating, and had a the history of abuse by individuals and (if you look outside of the US) the government.

There are costs, and there are edge cases. But that's the case for any policy choice.
This libertarian, individual autonomy stance is not just my take, it is US policy from the Reagan era:
https://en.wikipedia.org/wiki/Mental_Health_Systems_Act_of_1980

[Dr. Ed 2]

If she wants to keep paying treble damages, what merchant is really going to be that upset about it?

Now the gangs of thieves who come in on smash & grab runs, whom they can't apprehend or even identify is a different issue, but when you have a known perp and a CIVIL law that essentially ensures that you will get 600% return on your initial investment, well???

[Moderation4ever]

I often question what we should do when I read in my newspaper about a person with multiple DWI convictions. I can understand a person getting a citation once, but I would expect them to clean up their act. I don't want to wait for the multiple offenders to kill someone because society comes down hard.

[Absaroka]

I have thought we should have an A for Alcohol endorsement on driver's licenses, and card everyone. Drunks could use raisins to make bathtub gin or get friends to buy for them, but they couldn't get tanked at the bar and drive home. And loudly prosecuting the odd friend who knowingly bought them a case of vodka might discourage that a little.

[TwelveInchPianist]

They could always shoplift the alcohol.

[Absaroka]

Indeed so!

[Dr. Ed 2]

"A" stands for "Corrective Lenses Required."

[Absaroka]

No, that's 'B'.

(there is a whole world outside Massachusetts!)

[Noscitur a sociis]

Some states appear to have at least some version of what you’re talking about. Looks like Alaska comes the closest (i.e. a license that prohibits you from purchasing alcohol altogether), with Utah having a class of license that prohibits you from having any alcohol in your system while driving, and North Carolina one that restricts your BAC to .004 instead of .008.

[Absaroka]

Interesting, thanks. I wonder how well it works.

Any Alaskans in the room? Do they card everyone all the time?

[Frank Drackman]

Don't hold me to this, but I've heard rumors that some people are what we call "Addicted" to drinking, and won't stop until they're dead (when ironically, the formaldehyde used to embalm them doesn't make them sick)

[Frank Drackman]

So Riddle me this, Fellow Conspirators,
The "Congressional Ethics Report" (Ethics? Congress? talk about Oxy-Morons) on Gaetz
wasn't this completed several years ago? why wasn't it released then? Why did he only become Persona-non-grata when he was nominated for AG? how many more reports are they sitting on? (Speaking of sitting on things, how about the Katie Hill report? or her roommate Rep Lauren Underwood) Bobby Scott? Even if only 10% of House/Senate are Sex Fiends, that's 53 (you know it's more than that)
Seriously, how many jobs come with a flock of adoring High Screw-el students to fulfill your every wish?, they could stop paying Congress totally and you'll still have a crowd of Perv-o's wanting to be there

Frank

[Roger S]

Apparently Gaetz and Trump have made some enemies.

[Dr. Ed 2]

Gaetz handed women money and gifts for having sex with him.
Isn't that, essentially, what most men do?

Yes, there is such a thing as love and women who aren't total freeloaders but the model essentially is guys pay for sex.

Which is what Gaetz did. And???

[Roger S]

Maybe that is why Gaetz was not prosecuted.

[David Nieporent]

Is there any aspect of misogyny that Dr. Ed cannot exhibit?

[Noscitur a sociis]

His conclusion that all women are prostitutes does seem to have some especially unfortunate implications in light of some of his other idiosyncratic views.

But at least he didn’t type out the word “shit”!

[Roger S]

He did not say all women are prostitutes. That is the inference of some people reading the Gaetz report. Men do commonly provide money and gifts for girlfriends.

[TwelveInchPianist]

Except in Fulton County, GA, where women always fully reimburse men for gifts, in cash, without leaving a paper trail.

[David Nieporent]

Men do commonly provide money and gifts for girlfriends.

1) Men do not in fact commonly provide money for girlfriends. Gifts, sure. But not cash.
2) None of these were Gaetz's girlfriend.
3) Men definitely do not tell girlfriends that they've got cash flow problems that week and ask for a courtesy discount as a result.

He did not say all women are prostitutes.

He said that was the norm.

[Dr. Ed 2]

Possibly of interest -- https://www.mindingthecampus.org/2024/12/26/brown-university-betrayed-history-and-donors/

[Krayt]

I protest the use of the double-f grapheme as substitute for both ss and pp in Hassenpepper.

Oh, it's not that and is a proper last name. Nevermind.

[Bored Lawyer]

Further on the trans insanity:

HOWCHILLA, Calif. -- A convicted criminal who served time at the women's prison in Chowchilla, California is charged with raping fellow inmates.
A Madera County judge ruled 52-year-old state prisoner Tremaine Carroll must be referred to with she/her pronouns because Carroll identifies as a woman.

https://abc7chicago.com/post/pronoun-use-center-rape-case-involving-former-chowchilla-central-california-womens-facility-prisoner-tremaine-carroll/15696730/

The real scandal, IMO, is not the pronouns (the judge is a fool, but he is following some foolish California law). Rather it's this:

In March DA Sally Moreno, charged Carroll for rape allegedly committed while incarcerated at the Central California Women's Facility in Chowchilla.
"After his first cellmate became pregnant and was moved to Los Angeles, two other cellmates of his had complained that he had raped them, so we have filed rape charges against this inmate," said Moreno.

Got it? This man, err, woman, err, Person With Penis was incarcerated in a women's facility, where he impregnated one cell mate and raped two others.

This is where this insanity leads -- rape of women who are jailed and forced to bunk with their rapists.

Are you listening SCOTUS? Your vote may lead to more women being raped. Yet I predict that three women on SCOTUS will vote to find an Equal Protection right for trans people. The complete lack of reasoning and shame is truly astounding.

[Martinned2]

Are you somehow under the impression that rape doesn't normally happen in American prisons? US prison conditions are generally so dire that they are a categoric human rights violation, I'm not sure why this rape case is more interesting than all the others.

[Bored Lawyer]

Because men are more likely to rape when they are with women. Especially criminals, and especially when they are incarcerated.

Does man-on-man rape sometimes happen in men's prisons? Sure.

But that you think that's an excuse to up the risks by incarcerated a Person-With-Penis in a women's prison shows how far gone you are.

[Sarcastr0]

We don't like to make policy based on propensity.

Which reduces your argument to just begging the question based on gender.

If past is prologue, this'll be a drum the right beats enthusiastically to greater or lesser policy and electoral success right until they unexpectedly lose the argument.

[Michael P]

Your side absolutely likes to make policy based on propensity, even where propensity is speculative and confounded by other factors. Gun ownership, systemic racism, white supremacy -- there is an almost endless list of supposed propensities that you want to fight via policy.

Not that we expect Gaslight0 to be honest about such things.

[Sarcastr0]

I'm not making an argument based on what you think 'my side' likes to do. You may see everything through a partisan lense; I just call them like I see them.

The only one that has some bite in what you put forth are gun regulations.
I think there's a individual right to self defense, so I'm mostly not in that camp either. Sorry to disappoint your strawman lib view of me.

In a more interesting vein, I would presume you think that at some point (machine guns, explosives, etc.) it's less about propensity and more about enabling. Do you agree?

[TwelveInchPianist]

"We don't like to make policy based on propensity."

We? How many of "we" are women facing the prospect of being incarcerated with men?

I could imagine a women having a man put in her cell: "But what if he rapes me?"

"Sorry mam, we don't like to make policy based on propensity."

[Bored Lawyer]

"We don't like to make policy based on propensity."

I have muted Sarcastro, since he tends to say foolish things. If he said that, he really is a fool.

Anyone who thinks that prison assignments are not made based on "propensity" is a complete fool. Just point and laugh.

[Sarcastr0]

I see BL doesn't understand the construction 'don't like to' and thinks it's synonymous with 'never do.'

[TwelveInchPianist]

Then what was your point?

[Noscitur a sociis]

We don't like to make policy based on propensity.

I’m pretty sure that we do, in fact, like to try to
predict the outcomes of various policy options before choosing one.

[Sarcastr0]

I think I see the confusion - that's on me.

I was speaking about in the arena of criminality.

You're absolutely right that government policy and civil law like torts is full of propensity and forward-looking risk-based systemizations.

Sorry for the lack of clarity; I think if you go back to my comment it's pretty clear that's where my mind was (hence only talking about gun policy, etc.)

And yes, I think given we're talking about likelihood of rape here and specifics of punishment, we are still in the realm of the criminal. Hence why collective punishment like 'men rape more so we should treat this man like he rapes more' is not how we're going to roll.

[Brett Bellmore]

There are multiple problems with your position here. But let me focus on just two:

1. It rests pretty heavily on the presumption of innocence, but we are discussing here prison policy, and thus people for whom the presumption of innocence has been largely overcome already.

2. A man not being permitted in a woman's prison isn't a punishment.

[Noscitur a sociis]

With all due respect, this position doesn’t make a whole lot of sense. Criminal sentencing is one of the areas where we’re most concerned with making policy judgments based on predicting how people are likely to act in the future, and where letting that judgment play more of a role in our decisionmaking is usually considered a good thing.

If your position is that it’s unfair to other transgender inmates to let this person’s bad behavior affect their placement options, you’re welcome to make that (dubious) case. But I don’t think you can ground it in the principle you’re reaching for here.

[Sarcastr0]

This is what set me off: 'because men are more likely to rape when they are with women.'

We don't treat men differently than women because of this. Nor should we, despite the admitted difference in risk here.

We make more individualized distinctions.

That's the principle I'm trying to baseline to here.

[Roger S]

I would say that recognizing that a person has a penis is making an individualized distinction.

You are a parody of egalitarianism. Go ahead and treat all risks as equal.

[TwelveInchPianist]

"We don't treat men differently than women because of this. "

Uh, that's one of the reasons we put men and women in different prisons.

[Noscitur a sociis]

We don't treat men differently than women because of this.

Of course we do. Why do you think we house male and female offenders in different facilities in the first place?

[Kazinski]

Sure we do, that's why we don't allow men into women's restrooms, or locker rooms, women's dormitories.

These restrictions are made without any individualized distinction, and are made by every culture globally.

[Sarcastr0]

Bathroom segregation was created to prevent rape?

I don’t think that’s right.

[Bored Lawyer]

It's not sentencing, exactly. I can't speak for California, but in the federal system, the defendant is sentenced to a term by the court. The Bureau of Prisons decides where to put him or her. And that's where an assessment of danger and other factors comes in.

Gender issues aside, there's a reason why there are low, medium and high security prisons, and why different criminals are sent to different places. The perceived degree of danger the prisoner likely poses to other prisoners is taken into account.

[TwelveInchPianist]

This is the outcome of the treating men who say they are women as women. People who oppose incarcerating men with women and allowing the men to rape them should oppose transgender ideology.

People who support allowing men to rape women in prison should support trans ideology, but be subject to opprobrium like Nazis and other moral defectives.

[Josh R]

Your logic is flawed. The correct logic is people who oppose trans women raping women in prison should oppose treating trans women as women in that context only. It has no effect on whether it is proper to refer to your trans women neighbor as she or he.

[TwelveInchPianist]

If they're women, why shouldn't they be treated as women in that context? Are there any other contexts that you think women shouldn't be treated as women, or just contexts involving trans "women"?

[Josh R]

It's not whether trans women are women. It's a matter of whether the state can overcome intermediate scrutiny by treating anyone differently because of their sex (where we assume sex refers to the traditional biomarkers). A person whose sex is male, be they cis men or trans women, perhaps can be kept out of women's prisons because of the state's interest in protecting other prisoners.

[Mr. Bumble]

"It's not whether trans women are women."
When you start with this as your premise, nothing else you say makes sense.

[Brett Bellmore]

The correct logic is that men aren't women just because they say so, and so men should not be treated as women in ANY context.

[Don Nico]

Martin,
Men cannot get pregnant from anal or oral sex.

[Frank Drackman]

Just because you didn't?

[ObviouslyNotSpam]

No, but they can still be "raped", as that term is commonly understood (even in New York State).

Ask Trump about that...

[Frank Drackman]

I want to see a (real) woman rape another (real) woman
seriously, I'd sort of like to see that, any links?

Frank

[TwelveInchPianist]

From the article:

"There's no psychological evaluation that needs to be done. This person does not need to be on cross gender hormones, they don't need to be signed up for transgender surgery, they don't need to be a psychological evaluation regarding gender confusion, the mere statement is enough," said Moreno.

Many people are under the impression that that's not the case.

[Josh R]

A finding that intermediate scrutiny applies to discrimination on the basis of gender identity would not automatically imply that a categorical ban on trans women being housed in women's prisons would not survive intermediate scrutiny. The state might win. The state could also bolster its case by limiting the ban to violent offenders and (unlike California) require due diligence that the inmate is ineed trans.

[TwelveInchPianist]

"require due diligence that the inmate is indeed trans."

That could create it's one problems. Why should we require some women to take hormones or have surgery in order to get proper housing?

[Brett Bellmore]

Well, we're not. We'd, hypothetically, require some men to take hormones or have surgery in order to be housed with women.

[TwelveInchPianist]

That's true, but what I said is the other side's framing.

[Josh R]

I do not understand your argument.

[Bored Lawyer]

"The state might win."

Or it might not, and more women will be raped. But at least some leftists will have signaled their virtue.

And does it bother you that your logic seems to have escaped the powers that be in California -- that perhaps there is a difference between using particular pronouns, and incarcerating a Man-Who-Says-He-Is-A-Woman with actual women?

[Josh R]

If the placement of trans women in women's prisons is as described by Moreno in your article, it does bother me.

On the other hand, your claim that trans women aren't "actual women" suggests your true position might match Drackman's.

[Frank Drackman]

Your basic problem is a "Trans Woman" is a man, once you accept that, like that the speed of light is always the same and independent of the speed of the light source, the rest follows logically, like special relativity.

[Josh R]

Your basic problem is you cannot accept that a trans woman is a woman in any context. But at least you are being honest about it. Instead, we hear too much from those opposed to trans rights that they are only concerned about sports, locker rooms, prisons and the like - and have nothing against a person whose gender idenity does not match their sex.

[Frank Drackman]

Yes, I don't believe a man is a woman in any context, I also don't accept Santa Claus, the Easter Bunny, Global Warming, or that You-Crane is important to Amurica's well being.
OK, maybe there is a Santa Claus.

Frank

[Commenter_XY]

Genetically, they aren't women = Your basic problem is you cannot accept that a trans woman is a woman in any context

[David Nieporent]

I don't think a trans woman is a woman in any context. However, in most contexts, sex is irrelevant and therefore there's no harm in treating a trans woman as a woman if it makes 'her' feel better. In any context in which sex is relevant — which includes, but is not limited to, sports, locker rooms, prisons and the like — we should look at the person's actual sex.

[TwelveInchPianist]

Sex, divorced from gender, isn't relevant to any of those except maybe pregnancy in prison.

What we're finding out is that sex the quality and sex the construct aren't as easy to separate as the gender studies set would have us believe.

[Josh R]

Since you stand alone in this group as being reasonable, I will try to persuade you otherwise.

It is a fact that about 300,000 Americans have a gender identity that does not match their sex. It is also true that for most of them, stress caused by that mismatch is only relieved by affirming their gender identity. These facts ought to inform us that gender identity is a real trait and thus defining "woman" based on gender identity makes as much sense as doing so based on genes or genitalia.

[Brett Bellmore]

Actually, the evidence is that the stress caused by that mismatch isn't relieved by said affirming, either. Or else why does the suicide rate remain so high after said affirming?

[ObviouslyNotSpam]

I'm surprised more MAGAs don't embrace trans ideology. Both involve prioritizing one's "true feelings" over objective reality.

Must be the bigotry thing--hard to get past that!

[Roger S]

No one should have to accept that a man is a woman.

[ObviouslyNotSpam]

I think you mean "pretend".

[not guilty]

"A finding that intermediate scrutiny applies to discrimination on the basis of gender identity would not automatically imply that a categorical ban on trans women being housed in women's prisons would not survive intermediate scrutiny. The state might win. The state could also bolster its case by limiting the ban to violent offenders and (unlike California) require due diligence that the inmate is ineed [sic] trans."

Too many of the bloviators in these comment threads fail to realize that equal protection constitutional challenges to statutes are litigated at actual trials, based on an evidentiary record. Where intermediate scrutiny applies to a quasi-suspect classification, the burden shifts to the government to show "at least that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives." United States v. Virginia, 518 U.S. 515, 524 (1996), quoting Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982). The plaintiff, however, must first plead and prove that (s)he is a member of the quasi-suspect class.

[Longtobefree]

"A Madera County judge ruled 52-year-old state prisoner Tremaine Carroll must be referred to with she/her pronouns because Carroll identifies as a woman."

I now truly wonder if a judge can rule the earth is flat.

[Brett Bellmore]

It's something of a catch 22 for those taking the stand: Sworn to tell the truth, threatened with contempt of court if they do.

[tylertusta]

Earlier today, China conducted test flights of two advanced aircraft. These test flights were over populated areas that were caught on social media and quickly went viral. The timing of the test flights is no accident, as Dec 26th is also Mao's birthday. The only surprise is that we didn't catch a glimpse of the H-20, China's stealth bomber that is under development.

There's plenty of media hype calling these "6th generation aircraft." Sober analysis says that it's possible that these are 6th generation aircraft, but it's also possible that these are improvements on Chinese stealth technology beyond the J-20, making them just more 5th generation aircraft. My personal opinion is that these are the latter- improvements on the J-20 & J-35 to try to get China into parity with the F-22 & F-35.

The J-20, China's only other stealth aircraft currently in service, has only limited reductions that qualifies it as being only "Low Observable" instead of the F-22/F-35's "Very Low Observable. The J-35, a carrier-capable fighter currently in development, is an improvement on the J-20 but still has some limitations in its shaping compared to the F-35 and is still probably "Low Observable."

One aircraft- made by the CAC- is clearly very large- possibly some kind of long-range "regional bomber" aircraft that has been known to be in development for a long time. The other aircraft- made by SAC- is smaller and possibly some kind of fighter.

A proper, sober, not-clickbait source: https://aviationweek.com/defense/aircraft-propulsion/new-chinese-advanced-combat-aircraft-emerge-flight

[tylertusta]

Note: When I use the term "Low Observable" I'm referring to aircraft that have some stealth reduction just as radar-absorbent coatings and optimized shapings to redirect radar waves that lowers its radar-cross section, plus design features to reduce the aircraft's infrared signature.

An aircraft like the Russian SU-57 "Felon" is speculated to have a radar-cross section of about 0.1m²-1.0m², which is roughly the same as a clean F/A-18 Super Hornet (again, speculated)

A "Very Low Observable" aircraft goes further and tries to get the RCS down as far as technologically possible, such as the F-22's (possible, probably better than) 0.0001m². Three orders of magnitude of improvement in RCS means a VLO plane can get something like 80% of the distance closer to a radar before it is detected when compared to a LO plane.

[Dr. Ed 2]

Question: If you know where they are taking off *from*, and they have to take off with full afterburner which is a very visible heat signature, why can't we catch that with the same satellite technology that we use to catch missile launches?

The F-15 needs 1,575 feet to take off, the B-1 needs 5,577 -- you're talking well over a mile if you are going to have any spare for safety. We know where all such runways are, and aircraft carriers are large, made of metal, and hydrologically noisy when compared to submarines. Hence while these planes are harder to see on radar, if you already know they are in the air, ummm.....

[tylertusta]

I don't think it's realistic to use satellite-based IR sensors to continuously track combat aircraft.

Rocket launch plumes are absolutely gigantic IR signatures that tells everyone "Hey, I'm the dumbass who fired a rocket!" Rockets give off a ton of hot smoke, their engines burn hotter than any jet engine, their motors burn for far longer than any aircraft not named SR-71, and they fly high into the atmosphere giving every sensor in space and on the ground an opportunity to see them.

No, what you would want to do is use various types of satellites to monitor bases for activity and then planning your responses based on how long an attack would occur from that base. For example, if your satellite watching Whiteman Air Force Base detects B-2s taking off, then you know that in about 8-12 hours or so those B-2s will be hitting something.

[Brett Bellmore]

Isn't most of that due, not to reflecting less energy, but instead mostly not reflecting it back in the direction it came from? Which can be defeated by using differently located transmitters and recievers?

[tylertusta]

RCS reduction is a combination of both absorbing incoming radar in addition to deflecting it away from the expected receiver. Stealth aircraft utilize radar-absorbent material coatings, such as the F-117's iron-based paint, which absorbs specific wavelengths of light and re-emits them as heat.

It is possible to use what is called bi-static or multi-static radar systems to try to work around deflection shapings. However, in practice these are too complex and costly to be worth the effort compared to other solutions.

Most LO/VLO aircraft are not stealthy in all directions, and their design prioritizes being stealthy in some directions over others. Instead of splitting up the radar transmitter and put the receiver "off to the side", a defender can just put a second radar set "off to the side" and get the same benefit against LO aircraft.

[Dr. Ed 2]

Wouldn't the two radars interfere with each other, even if on different frequencies? If the airplane is moving, the reflected wave is not going to be the same frequency as the broadcast one because of the doppler effect -- that's how police speed radar works.

[tylertusta]

Radar interference from multiple radars isn't a problem. The military has had to deal with this since the 1950s and they solved it long ago.

Here is a white paper on how civilian car radars (like in adaptive cruise control) are trying to solve this problem:

https://www.sae.org/news/2021/06/mitigating-radar-to-radar-interference

[Dr. Ed 2]

China has some real economic problems that it is hiding -- Evergrande is only part of it. Corruption is so pandemic that it is actually choking the economy in addition to all of the off-books debt for all the housing projects that (a) aren't ever going to be completed, (b) are built in remote places where no one wants to live and (c) are shoddily built.

What scares me are the credible reports that they stole the blueprints for the F-35 which is the only way they are going to be able to surpass our aviation technology, Boeing notwitstanding.

Long range bombers are really only effective when you (a) have air superiority and (b) against powers lacking effective air defenses (i.e. ADA). That's the third world countries that China is essentially colonizing with things like its "Belt and Road" initiative. China loves to loan money which the countries can't repay at which point China confiscates the resources, its initial intent. Long-range heavy bombers are a way to ensure that the properties aren't "nationalized" the way that all the oil wells we drilled in Saudi Arabia were.

[tylertusta]

Long range bombers are really only effective when you (a) have air superiority and (b) against powers lacking effective air defenses (i.e. ADA)

The invention of the standoff munition has made this statement untrue since the 1960s in the nuclear mission, and since the 1970s in the conventional mission.

Long range heavy bombers are useful if you need to project a ton of power a long distance away and you don't want to pay the price for using a ballistic missile to do it, and if you also don't have a navy that can do it for you.

[Commenter_XY]

The eastern side of Taiwan is much more vulnerable now, the area where we would attempt to park an aircraft carrier in case of hostilities, or attempting to break a blockade.

[Dr. Ed 2]

The real question is if China would want a war with the US.

First, they would have to eat all the money we owe them because we'd never pay it. Second, they'd have to write off all trade with the US because it wouldn't just be tariffs they had to worry about.

I don't think they'd do it. I think they are saber rattling about Taiwan while their attention is on the South China Sea, Africa, and elsewhere.

I also think that Israel kicking Iranian Proxy Butt has helped...

[tylertusta]

If only China cared more about money and wealth than taking Taiwan.

For some countries, there are things much more important that money. A lot of countries look at the challenge of attacking another. They think of the short term benefits without considering what happens if the other side decides to fight.

Just ask the leaders of Japan (1941), Germany (1939), Iraq (1990), and Russia (2022) on the eve of their wars on whether they thought the possible economic consequences deterred them from attacking.

They did not worry about such things. Ideology and militarism overrode any economic calculus as planners thought that they were special, that they can win a short, victorious war and thus complete their political objectives.

China may well look at the US and think that the US needs China more than China needs the US, and the threat of economic ruination would deter the US from intervening in their liberation of their rebellious province.

[Longtobefree]

"The only surprise is that we didn't catch a glimpse of the H-20, China's stealth bomber that is under development."

So it works?

[tylertusta]

I see what you did there. Nice one.

[ObviouslyNotSpam]

Conclusive proof of existence...

[hobie]

Just more things for you to be afraid of, tyler. You've got legislatures to keep the gays and brown people in check. Guns for everyone else. But what are you gonna petition our society to tolerate to keep you safe at night from these jets? Some sort of weapons system?

[tylertusta]

I'm a plane nerd, so I was like a kid in a candy store today.

I know that people living free and happy lives unencumbered by your idiocy upsets you, but you will have to learn to be resilient with this.

[Dr. Ed 2]

The only good social worker is a dead social worker.

[Noscitur a sociis]

Merry Christmas to you too, Dr. Ed!

[Frank Drackman]

Well, that'll just about cover the flybys.

[bernard11]

WTF is wrong with you?

Do you just want to kill everyone you don't like?

[Dr. Ed 2]

I didn't say kill them, only that the only good one is a dead one.

Devil's Island would suffice.

[Sarcastr0]

There is only one reason someone would write something like this: wanting attention for it.

[Dr. Ed 2]

No, I despise them the way that some people despise Trump -- and they don't express that to seek attention, do they?

I instead have a need for the world to know how much I despise them, how truly evil persons they are -- how they aren't even really human and how if one was choking to death in front of me, I'd step over him/her/it and keep walking.

Vengeance is mine sayth the Lord, and I will rely on the Lord being vindictive.

[not guilty]

I am curious, Dr. Ed 2. What bad experiences, if any. have you had with social workers? What is the wellspring of your hatred?

[Roger S]

I also have a low opinion of social workers. Maybe there are good ones, but I have not met any.

[Don Nico]

A Science question for S_0:
In the face of new JWebb evidence, do you still believe that the dark matter hypothesis is still the most probable cosmological theory?
What about the dark energy Lambda = constant hypothesis?

[Sarcastr0]

Dark matter remains the most direct explanation for 'galaxies spin like they're more massive than if you count up all the stars.'

The 2024 study I think you're talking about is Stacy McGaugh. Studies like that have been his beat since at least I was in grad school.
Most of the papers have been of the type 'this idea for what dark matter is doesn't comport with observation' with a coy 'but this is in keeping with this flavor of MOND!'

But a bit of a theory in mind doesn't mean the science isn't good, nor that going at dark matter like that isn't a good career to make.

While not as bad as string theory, monkeying with gravity's edge-case dynamics has been a problem-solver for a long time in cosmology, partially because it's still got enough degrees of freedom lying out there to fit a lot of observations and make a lot of predictions.
Dark matter is the direct, elegant solution to 'more gravity observed from spin than if we add up all the luminous matter' issue. But elegance is not required, it's just what we've seen lately in the standard model and GR.

TLDR - my money's still on some kinda dark matter flavor, but not for any good reason - I never had a good enough intuition to play with the big dogs.
The steady work on MOND behind the scenes has been fruitful, and may yet lead to a nobel-esque breakthrough.

[Don Nico]

Actually I was not thinking of McGauch's studies but new experimental data from the James Webb that finds objects too large at the edge of the visible universe, that find that the clumpiness of the universe is inconsistent with lambda-CDM at the for sigma level and that the Hubble tensions remain unresolved.

Whether that implies some for of modified gravity or a time changing cosmological constant is unresolved, it does suggest that astrophysics will remain far more exciting that particle physics during the next decade.

[Sarcastr0]

That's his latest paper! November 12, 2024.
https://iopscience.iop.org/article/10.3847/1538-4357/ad834d

As I said, I can't really adjudicate the struggle between the MOND set of theories and the CDM theories. My intuition is that CDM is still favored but even I am giving that basically zero weight - I don't smell desperation or BSing from either side yet.

But yeah, this is absolutely worth watching!

[Don Nico]

Thank you, I'll give a look. I hope that you had a good Christmas and best wishes for the New Year

[Brett Bellmore]

"but new experimental data from the James Webb that finds objects too large at the edge of the visible universe,"

You must remember that one of the consequences of an expanding universe is that distant objects subtend a larger angle of the sky than their size and distance would lead to in a static universe, because at the time they emitted that light, the universe was smaller. In an expanding universe, the ratio of circumference to radius isn't fixed!

If you go all the way back, after all, a single point covers the entire sky...

So you'd actually expect galaxies in the early universe to look unnaturally large. I wonder how much of that factors in here?

[M L]

You can know a lot
You can know a little
But whatever you know
Just don't blow the whistle

https://www.youtube.com/watch?v=bfA2p6Em7bI&ab_channel=JesseWelles

[M L]

If ya haven't heard of this guy yet, and you like good music, I'd suggest checking him out. He's bigger on social media like Instagram. https://www.instagram.com/wellesmusic/reels/?hl=en He draws comparisons to Bob Dylan, John Prine and others. Other songs include:

War Isn't Murder
Take Me Home, Country Drones
We're All Gonna Die
United Health
Walmart
Amazon Santa Claus

[JoeFromtheBronx]

https://www.oyez.org/ has the opinion announcements, including dissents from the bench, for the 2023 term.

[Dr. Ed 2]

OCR has ruled against a university on Jewish Harassment:

https://www.ed.gov/about/news/press-release/us-department-of-educations-office-civil-rights-resolves-complaint-against-university-of-cincinnati-alleging-shared-ancestry-discrimination

[M L]

I thought of the music I linked above today because of this story.

OpenAI whistleblower who died was being considered as witness against company

https://www.theguardian.com/technology/2024/dec/21/openai-whistleblower-dead-aged-26

[John F. Carr]

Forty-five years ago this week the leaders of the USSR decided on a quick military operation to prop up the unpopular but friendly government of Afghanistan. Measured against the ensuing war, the later U.S. invasion of Afghanistan went great and the Russian invasion of Ukraine went poorly.

[Dr. Ed 2]

Even Jimmy Carter stood up to them -- people forget that it was he who resumed draft registration.

There was a reasonably accurate movie -- Charlie Wilson's War and they nailed the society woman involved, I later saw her speak at CPAC and they had her.

[John F. Carr]

Late in his term Carter started to understand that the communists were not our friends. I wonder how policy in Afghanistan and Nicaragua would have been different if he had been reeelected.

Carter was a Southern Democrat back when the parties were more diverse.

[Frank Drackman]

if he was 20 years younger he'd be a Repubiclown (and 80 years old, that's when you know you're old, when you look back fondly on your 80's)

[The Margrave of Azilia]

Graveyard of Empires.

[JoeFromtheBronx]

I think the challengers should win United States v. Skrmetti, but fear that the current Court (the oral argument didn't relieve my concerns) will not agree. The oral argument, including Gorsuch's silent treatment, suggested a 6-3 split to affirm.

Thus, my "best case scenario" (though I think the law is unconstitutional on multiple grounds) is a limited opinion that limits the damage. Kavanaugh's phony "the Constitution says nothing about this" position isn't reassuring.

Roberts seems not to want to touch it. Barrett, her cluelessness about anti-trans discrimination aside, seems the best bet to provide a limited opinion that provides trans people some protection if a law or policy is blatantly bad.

Various possible options. I can see multiple opinions. Anyways, an openly trans litigator arguing a case in front of SCOTUS was a historical moment.

[The Margrave of Azilia]

"provides trans people some protection"

Perhaps protecting the bodily integrity of trans children would give them some protection?

[not guilty]

Perhaps the most critical question here is what standard of equal protection review applies. The District Court issued a preliminary injunction against enforcement of the challenged statutes, applying intermediate scrutiny. L. W. v. Skrmetti, 679 F.Supp.3d 668 (M.D. Tenn. 2023), rev'd 83 F.4th 460 (6th Cir. 2023). The Sixth Circuit reversed, applying rational basis analysis, L. W. v. Skrmetti, 83 F.4th 460, 488 (6th Cir. 2024), without discussing whether the District Court's factual findings are clearly erroneous.

The District Court's principal rationale for applying intermediate scrutiny is its finding that transgender individuals constitute a quasi-suspect class under the Equal Protection Clause. 679 F.Supp.3d at 690. In the alternative, the Court also found that the challenged Act is subject to intermediate scrutiny because it imposes disparate treatment on the basis of sex, id., at 691-692, and that SB1 subjects individuals to disparate treatment on the basis of sex because it imposes disparate treatment based on transgender status. Id., at 694.

If there are multiple opinions and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those members who concurred in the judgments on the narrowest grounds. Marks v. United States, 430 U.S. 188, 193 (1977).

To illustrate by means of a hypothetical, suppose Justices Thomas, Alito, Gorsuch and Kavanaugh affirm the Sixth Circuit in toto, concluding that the challenged statute passes rational basis review. The Chief Justice concurs in the judgment, opining that the challenged statute on its face discriminates on the basis of sex, but survives intermediate scrutiny. Justice Bear It concurs in the judgment, opining that transgender status is a quasi-suspect classification but the challenged statute survives intermediate scrutiny. The Court remands to the Sixth Circuit for further proceedings.

Under this hypothetical scenario, the precedential opinion would be that of Justice Bear It, who concurred in the judgments on the narrowest grounds, and the lower federal courts would be bound thereby.

[Commenter_XY]

NG, do you think that is what will actually happen, though? =

Justice Bear It concurs in the judgment, opining that transgender status is a quasi-suspect classification but the challenged statute survives intermediate scrutiny. The Court remands to the Sixth Circuit for further proceedings.

Under this hypothetical scenario, the precedential opinion would be that of Justice Bear It, who concurred in the judgments on the narrowest grounds, and the lower federal courts would be bound thereby.

[not guilty]

I have no idea what the outcome will be. The incoming administration may ask SCOTUS to dismiss the writ of certiorari as improvidently granted, or the new Solicitor General may take a different position from the current Solicitor General. If and when the case proceeds to decision, there is no predicting what the lineup will be.

[Josh R]

As we discusssed previously, there is a circuit split on how to apply Marks and SCOTUS did not resolve the split in Hughes v. United States.

The Chief does not want such a fractured decision. Under your scenario, a six-justice majority will hold that the law survives under intermediate scrutiny where it is assumed for the sake of argument intermediate scrutiny applies. The 4-1-1 split will be expounded upon in concurring opinions.

[The Margrave of Azilia]

The next frontier of transgender rights, as reported by Binion at Reason (for those not familiar with his work, he's a libertarian who voted LP this year - for a gay Libertarian candidate):

"Women Allegedly Raped in Prison by Trans-Identifying Inmate Will Have To Refer to Attacker as 'She/Her'

"The recent ruling means that on the stand those women may be subject to speech policing from their alleged rapist—who has opted for self-representation."

https://reason.com/2024/12/26/women-allegedly-raped-in-prison-by-trans-identifying-inmate-will-have-to-refer-to-attacker-as-she-her/

No negotiation. No compromise. No surrender.

[TwelveInchPianist]

If their perception is that they were raped by a man, I don't know why they shouldn't be able to testify to that. What about their dignity?

[ObviouslyNotSpam]

I tried in vain to find a copy of the judge's order online, but I did see references to a California state law which may mandate that outcome.

If so, it would not have been the judge's fault for complying with the law, as written.

[The Margrave of Azilia]

It is ultra vires to require anyone to perjure themselves in a legal proceeding.

[ObviouslyNotSpam]

But it wouldn't be "perjury" to require a witness to use particular pronouns during their testimony. In most cases, pronouns would not be a "material matter".

[Brett Bellmore]

Congress has the power to block Trump from taking office, but lawmakers must act now

The basis upon which this is supposed to happen?

1. An impeachment in which he was acquitted. Yes, they literally used an impeachment where he was acquitted as a basis for claiming he's guilty.

2. A partisan House committee report, where the committee consisted entirely of members chosen by the opposing party.

3. A civil hearing in one state, that the Supreme court held wasn't constitutionally entitled to adjudicate the matter.

I guess we'll see in a few days if any of them try it. I rather doubt they'll reach the threshold in the updated law, but I'll be somewhat surprised if no attempt is made to do it.

[SRG2]

It would certainly be very funny but it isn't going to happen - though there seems no constitutional reason why it couldn't. Double jeopardy doesn't apply.

[Brett Bellmore]

Well, no, double jeopardy doesn't apply. They could always impeach him yet again, and maybe convict this time. But that's not what is proposed here. They're just advocating what amounts to a bill attainder, without even satisfying the presentiment clause.

[Sarcastr0]

Don't get bent out of shape about this, Brett. It's not happening.

The Hill got your outrage clicks, though - everyone's a winner!

[TwelveInchPianist]

Yup. Much like Hunter Biden's pardon, this will not happen and the right is using the prospect of it happening to gin up outrage.

[Brett Bellmore]

I agree that it's very unlikely to work. It is, however, very likely to be at least attempted.

Trump's scheme to subvert the election back in 2020 was very unlikely to work, that didn't stop you guys from going utterly nuts.

[Sarcastr0]

Not a sniff of Congressional action, just 2 lawyers writing.

Of course you think it's gonna happen - you live in a political thriller where whatever scheme you speculate the Dems are already secretly working on. One where Trump is not extraordinary.

In the real world, I'ma wait until I see another step before I start worrying about this.

[Brett Bellmore]

Of course I think it's going to happen. Just like the effort to subvert Trump's electors actually did happen in 2016.

Are "Democrats" in the form of some vague collective working on this scheme? Probably not.

Are "Democrats" in the form of a few members of Congress likely to attempt it anyway? Yeah, probably.

I mean, not everybody has gotten the memo that Trump isn't super-ultra Hitler anymore.

[Sarcastr0]

The Democrats in your head haven't broken through in the real world to do anything you've predicted for them. It's been a decade!

No gun ban. No camps. No allowing illegals to vote.

They just keep getting foiled at the last minute. Over and over. Funny, that.

[Brett Bellmore]

"No gun ban". Hey, Sarcastr0, what color is the sky in your universe? Because I've experienced multiple gun bans in my life. I originally bought my life membership in the NRA with money I'd saved up for a rifle that bastard Bush banned the importation of.

Having trouble admitting that Democrats actually did try to suborn Trump's electors back in 2016? Then tried to reject counting his EC votes?

It failed then, I expect it to fail this time, but, yeah, I expect some of them to try it.

[David Nieporent]

Once more: look up the definition of "suborn."

[Sarcastr0]

You predict extreme radical stuff. None of it has been attempted.

Nothing non-performative happened in 2016.

Whatever definition of gun ban you're using is nothing like the extreme stuff you accuse Democrats of plotting in the gun threads.

I wonder if you're even fooling yourself retconning your fan fiction as correct predictions.

[Brett Bellmore]

I see you've retreated from "didn't happen" to "performative". Thanks for conceding that it did happen. Now let's see what Democrats do in a week or so for you to dismiss as 'performative'.

Beta O'Rourke during the 2020 Presidential debates: “Hell, yes, we’re going to take your AR-15, your AK-47.”

Barack Obama back in the 90's: “I don’t believe people should be able to own guns.”

Diane Feinstein, author of the '94 AWB: “If I could have gotten...an outright ban – ‘Mr. and Mrs. America turn in your guns’ – I would have!” and “Banning guns addresses a fundamental right of all Americans to feel safe.”

Rahm Emanuel, advisor to Bill Clinton: “We’re bending the law as far as we can to ban an entirely new class of guns.”

Prominent Democrats routinely talk about banning guns. You know that as well as I do. Oh, but I suppose they're doing it performatively, so it doesn't count...

[David Nieporent]

Once more: a bill of attainder involves criminal punishment. Disqualification is not criminal punishment. Therefore, this does not "amount to" a bill of attainder, or even remotely resemble one.

What they are proposing is applying the 14th amendment. SCOTUS (incorrectly) said that only Congress, not states, can do so for federal officials. Their response to this (incorrect) ruling, therefore, is to advocate that Congress actually do so.

[Commenter_XY]

Cute = (incorrectly)

Maybe 6 SCOTUS heads are just a wee bit better than one. 🙂

[M L]

Now the lawyers who wrote that article get disbarred and sued if it's like when the shoe is on the other foot.

[ObviouslyNotSpam]

For writing an opinion piece in a newspaper?

Yeah, that does sound like what might become "normal" in Trump's America.

[Brett Bellmore]

The Spies Who Hate Us

An unredacted account of what the CISA has been up to since 2020, thanks to a judge who refused to take "national security!" for an answer.

And it's pretty ugly.

[Sarcastr0]

The granularity of their work is shocking, naming Epoch Times, Unz.org, and a whole series of websites as disinformation, often with a crazy spin that identified them with Russian propaganda, white supremacy, terrorist activity, or some such.

Uh, Brett...

[Brett Bellmore]

This is where you defend censorship, I take it?

[Absaroka]

Gotta say, Brett, I read your article, and it seemed rather overwrought. And while I don't dismiss e.g. the Epoch Times out of hand, they also aren't the most reliable or neutral source out there, to put it mildly.

[Mr. Bumble]

Name what you think is a neutral source of news.

[Absaroka]

I dunno if there are any that are completely neutral, at least for topics with a political valence. But some are farther out there than others. Trust but verify. And I'm not too sure about the 'trust' part :-).

[Sarcastr0]

There is a difference between biased and false.

Are you arguing disinformation doesn't exist?

[Brett Bellmore]

"Disinformation" doesn't mean "false", you know. It's a word borrowed from Russian, "dezinformatsiya", and in practice really doesn't mean any more than "communications the person using the term would like to suppress".

Lies certainly exist, and so do mistakes, but "disinformation" is a term so loaded as to be absurd. I prefer not to use it, and when somebody does use it, I instantly know they're likely to advocate censorship.

[Sarcastr0]

What nonsense is this? Maybe your etymology is right, maybe it's bullshit.

Disinformation refers to false information. Or at the very least purposefully deceptive to be functionally false.
You can look it up.

Quit conflating opinion and facts.

when somebody does use it, I instantly know they're likely to advocate censorship.
You have decided based on your personal and idiosyncratic definition of words, you know something about people.
You don't.

[Brett Bellmore]

"Or at the very least purposefully deceptive to be functionally false."

Hence, not false. Merely leading people to conclusions you don't want them to arrive at.

In practice it literally does not mean anything more than "communications I'd like to censor".

[tylertusta]

CISA, the good little government censors that they were, used the wonderful newspeak word "malinformation:" speech about true facts that would cause people to support the wrong policies.

In other words, speech itself was the problem, and whether it was true or not was a sideshow.

[Sarcastr0]

They call this splitting hairs.

[tylertusta]

And you speak for them, too?

[Jason Cavanaugh]

Allow me:

You started here:

Lies certainly exist, and so do mistakes, but "disinformation" is a term so loaded as to be absurd. I prefer not to use it, and when somebody does use it, I instantly know they're likely to advocate censorship.

You then went and googled the word and found the AI result claiming its etymology is Russian, and posted this:

"Disinformation" doesn't mean "false", you know. It's a word borrowed from Russian, "dezinformatsiya",

And then to cement your confirmation bias bullshit, you then decided you are somehow an expert linguist and added this:

and in practice really doesn't mean any more than "communications the person using the term would like to suppress".

Tick tock, Brett. The pasture is waiting.

[Brett Bellmore]

"You then went and googled the word and found the AI result claiming its etymology is Russian,"

Geeze, how stupid can you be? I didn't need to google it to confirm that it originated as a Russian term. I already knew that, and not from some AI's hallucinations, either. I've been following the periodic mutations of left-wing excuses for censorship for a couple decades now.

I googled it to confirm the spelling of the Russian term.

And the reason I said that in practice it just means "communications the user would like to suppress" is because that IS how it's used in practice. Look up thread where Sarcastr0 said,

"Disinformation refers to false information. Or at the very least purposefully deceptive to be functionally false."

The moment he said it referred to false information, he qualified that to admit it can be applied to true information, too. "functionally false" just means, "leads people to conclusions I don't like".

Literally, in practice, it just means "stuff I'd like to censor".

[Absaroka]

"There is a difference between biased and false."

True in some aspects, but ... if you consume a diet of biased (but true) sources, you end up with a false view of things. Not in the sense that any individual pixel in the picture, but the overall picture is.

For example, media on the right carry a steady stream of "83 Year Old Granny Uses AR-15 to Defend Toddlers Against Home Invaders" stories, none of which are false. In the left media, those never seem to make the cut. If you confine yourself to one side, you are liable to think that Granny is irresponsible if she doesn't have a rifle within arms reach whenever the grandkids are over. On the other side, you think that defensive gun use is rarer than hen's teeth, because you never hear of cases. Both views are wrong.

[Sarcastr0]

Sure. People get committed to flat false stuff all sorts of different ways.
But one avenue is easier to identify and deal with than the others.

[Brett Bellmore]

In my experience genuinely reliable and neutral sources are like unicorns. I like outlets such as Epoch Times, not because I unreservedly trust them, but because they're inclined to cover stories the MSM are burying.

Which is likely the real reason CISA was going after them.

[Sarcastr0]

Likely!

We all know why you like the Epoch times - they feed you a conspiratorial framework that aligns with your worldview.

[Frank Drackman]

like why you like the Marxist Stream Media

[Sarcastr0]

You think the government is lying to you, but trust every drop of some rando's jumped up Covid truther blog and the freaking Epoch Times.

We don't live in a postmodernist world. The truth matters, whether or not you're not a consumer of it.

[Brett Bellmore]

I know the government is frequently lying to me. I expect Epoch Times is, too. But I'll take a liar who doesn't censor over a liar who does censor, every single time.

[Jason Cavanaugh]

Allow me to fix that for you:

You take what you want to hear over reality, every single time. Facts do not matter to you unless they align with your vibes.

[ObviouslyNotSpam]

The Epoch Times is rated as having a "Right" bias in its reporting, and as a "Questionable" source in its treatment of facts, according to Media Bias/Fact Check.

[tylertusta]

Most of this is already known.

The House Committee on the Weaponization of the Federal Government released a report in 2023 that discussed much of this at a high level, except it focuses on how CISA tried to conceal their activities once their leadership understood that there would be hell to pay, such as how CISA moved their censorship regime into a CISA-funded NGO after CISA was sued in federal court.

https://judiciary.house.gov/sites/evo-subsites/republicans-judiciary.house.gov/files/evo-media-document/cisa-staff-report6-26-23.pdf

[SRG2]

t was created in 2018 out of a 2017 executive order

Brett outraged at the president who so ordered...or perhaps not...

[Brett Bellmore]

I've never claimed that everything Trump did during his first term was a good idea. Heck, HE wouldn't claim that.

[tylertusta]

Are you saying that Trump ordered CISA to censor himself?

[Brett Bellmore]

No, he created an agency that was supposed to do one thing, and then they went off and did something rather different.

Executive order 13800

See anything in there about combating disinformation? They were supposed to be doing things like combating botnets.

[Brett Bellmore]

I expect the CISA is one of the (many!) reasons why Trump doesn't trust the intelligence services.

[Sarcastr0]

Quit suspecting so many things.

For you the rout from suspect to fervently believe is very very short.

[Brett Bellmore]

The agency was created to deal with things like botnets, and then decided to become instead your one stop censorship shop. That's a pretty good reason to distrust them.

[Commenter_XY]

It is ugly. When will there be accountability, is my question?

[ObviouslyNotSpam]

in MAGAworld, CISA's "crime", of course, was its issuing of this statement on November 12, 2020:

“The November 3rd election was the most secure in American history. Right now, across the country, election officials are reviewing and double checking the entire election process prior to finalizing the result.

“When states have close elections, many will recount ballots. All of the states with close results in the 2020 presidential race have paper records of each vote, allowing the ability to go back and count each ballot if necessary. This is an added benefit for security and resilience. This process allows for the identification and correction of any mistakes or errors. There is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.

“Other security measures like pre-election testing, state certification of voting equipment, and the U.S. Election Assistance Commission’s (EAC) certification of voting equipment help to build additional confidence in the voting systems used in 2020.

“While we know there are many unfounded claims and opportunities for misinformation about the process of our elections, we can assure you we have the utmost confidence in the security and integrity of our elections, and you should too. When you have questions, turn to elections officials as trusted voices as they administer elections.”

https://www.cisa.gov/news-events/news/joint-statement-elections-infrastructure-government-coordinating-council-election

[Josh R]

Is there a split developing in MAGA world between Silicon Valley and the working class?

Musk and Ramaswamy want immigrant skilled labor, claiming that there aren't enough Amercians qualified to fill the jobs. Ramaswamy ignitied the kerfuffle by blaming American culture. Musk tried to distance himself by analogizing to an NBA team: the positions are of very high quality and its hard to find qualified peopple anywhere.

On the other side are anti-immigrant Trump supporters who argue H1-B visas and raising Green Card caps are lower wages in mid-skilled positions. Trump is on record supporting Green Cards for foreign students who graduate in the USA.

[tylertusta]

A split exists only in the fevered dreams of Democrats desperate for hope to cling onto.

[David Nieporent]

It may only exist online, but it exists in the fevered rantings of the right, not the fevered dreams of Democrats. Check out the Laura Loomer - Elon Musk feud on twitter right now.

[Sarcastr0]

Eh it’s twitter drama only for now.

Aligns with a narrative so it is well covered on the left but I as of yet don’t see it becoming a significant thing.

Though between Musk and Trump ya never know what they decide to amplify these days.

[M L]

There is certainly a disagreement on twitter at least. There seems to be a few positions: (1) No H1Bs (2) Reduce H1Bs (3) Status Quo (4) Increase H1Bs (even drastically so).

I'm between 2 and 3. It does appear the H1B system is rife with fraud, abuse and corruption. So probably needs some reform apart from the main issue of whether and how much.

It seems the H1B visa is probably worth hundreds of thousands of dollars to the visa holder and their whole extended family, who will all get in via chain migration. This massive benefit allows the employer to lower wages correspondingly. Also, those atop tech companies want subservient employees who will go along with "Be Evil" as in Google's updated motto or whatever they are doing, rather than be outspoken and opinionated with their American values.

However, this all externalizes great cost onto the American public and particularly young Americans who are trying to start careers.

On the other hand you have the arguments that we need to remain competitive, increase labor supply, keep wages not too high, prop up population growth, attract the best& brightest (not clear how piling more millions on top of millions is selecting for best and brightest but anyway), and so on, all so we can do things like limp the social security system along, build nice AI robots, increase profits, go to Mars, etc.

[Sarcastr0]

"Any way you slice it, it doesn’t look like H-1b workers hurt the native-born, even when they seem to be in direct competition:

Mayda et al. (2017) found that when national H-1b numbers were restricted, employment for similar native-born workers didn’t rise.

Mahajan et al. (2024) found that companies who won the H-1b lottery didn’t hire fewer “H-1b-like” native-born workers. They conclude that “lottery wins enable firms to scale up without generating large amounts of substitution away from native workers”.

Kerr et al. (2015) find that when companies successfully hire more H-1b workers, they employ more skilled native-born workers than before.

Peri, Shih, and Sparber (2015) look at the city level instead of the company level, and found that “increases in STEM workers are associated with significant wage gains for college-educated natives.” This should help quiet fears that companies that hire H-1b workers are outcompeting companies that hire mostly native-born Americans.

And so on. It is possible to find papers that conclude that H-1b workers displace similar native workers (https://gspp.berkeley.edu/assets/uploads/research/pdf/h1b.pdf), but they’re few and far between."

https://www.noahpinion.blog/p/indian-immigration-is-great-for-america

Meanwhile, your comment is weasily to the max
"It does appear..."
"It seems..."
And an unsourced 'great cost.'

Plus the idea that immigrants are somehow more evil than native born citizens?

You've grown into a really awful dude, ML. And one who believes a lot of stuff that just isn't true.

[Stephen Lathrop]

Sarcastr0, everything in those sources could be true, without addressing the Econ 101 issue that to increase the supply of workers in a technical category risks driving down wages for others in that category. Econ 101 would suggest that even the visiting workers get paid less—which after all is a saving you would expect an alert employer to be looking for.

It's very simple. Whatever the number of the Americans who work in a particular category, adding foreigners makes the number larger. Wage implications and policy pressures, including who will benefit, and at whose expense, are not mysteries. Theory may not prove out in practice, but proof to the contrary of such expectations seems hard to find, or, as in your examples, not quite on target.

If, as your cited sources seem to posit, there exists a pool of unemployed American workers skilled to do those jobs, why would they not object to competition from others who come from regions with typically lower wage scales? If to the contrary, there is a shortage of Americans with those skills, why would almost every American wage worker not object that to hire abroad relieves the American labor market of incentive to boost wages, and thus encourage Americans to get trained and employed in such jobs?

Nor have you discussed anything related to job security in technical fields. When I went through a period of unemployment in the Boston area, back when you had to report in person periodically to stay eligible, the long lines I stood in for hours were packed with STEM workers aggrieved that they were let go in their early 40s—in their telling so that employers could hire younger foreigners in successive waves to keep down company pay scales. Another grievance often mentioned was being forced before being fired to train their replacements. I neither fully credited, nor fully discredited what I heard.

When I was later securely employed enough to go frequently into a restaurant for lunch, I could not avoid noticing large parties of apparent Asians, typically all-male, led into the restaurant by an obvious supervising executive, without any sign among the Asians of anyone who looked older than about 30. That happened so regularly, and in so many restaurants, that my customary dining companion and I began to dine earlier, to get ahead of predictable kitchen back-ups occasioned by the arrival of a party of 20 or more. I date from that experience my pity for over-confident expectations among young American STEM workers.

[Absaroka]

I was one of the STEM workers whose wages may well have been depressed by H1B visas, but it's also worth considering that software development is pretty easy to offshore.

[Stephen Lathrop]

Absaroka — No argument on that.

But I have no doubt—and some experience to show—that concern about maintaining company secrets at least somewhat restricts that practice. One big company I know something about cheerfully profits from massively offshoring routine programming. But systematically keeps developmental crown jewels locked under wraps in domestic or other locations the company can best control. Those places pay better.

Of course, career access to such cutting edge jobs typically comes after a promotion or two from lower levels, and can be extended to H1B types as well as to U.S. natives. Smart companies want the best talent wherever it comes from.

H1B visas work not just to keep wages low, but also to expand massively the scope of the talent competition. To the extent that international corporatism gains capacity to bypass national labor policies, and import or offshore competition for U.S. workers, of course that diminishes political capacity to protect ordinary American's earnings and benefits. Whatever degraded wage and occupational standards prevail in nations elsewhere risk becoming the U.S. standard as well.

I wish I had a nickel for every time I got a shrug from my economist friends about solving that problem. One thing is for sure, they do not see doing that as any part of an economist's responsibility. Nor do economically baffled politicians want to take charge. That leaves everyone looking to big corporate leadership, which knows what it wants, and insists on it with gusto.

[David Nieporent]

There is no "chain migration" for H1B holders, and "extended family" can essentially never get in via 'chain migration.'

[Commenter_XY]

John Kirby: Hamas is the obstacle to a hostage release deal
https://www.israelnationalnews.com/news/401414

Pres Trump has stated there will be 'hell to pay' if we do not get our American hostages (living & dead) back by 1/20/2025.

WRT 'hell to pay', what actions could a POTUS Trump undertake that would run afoul of the War Powers Act?

Suppose a POTUS Trump sends troops to gaza...WPA worthy?
Suppose a POTUS Trump orders targeted assassinations of hamas leaders in gaza by us military...WPA worthy?

Next...What could a POTUS Trump actually do that would be 'hell to pay' in the region? What would actually hurt?
- example: crashing oil prices...is that do-able, is it 'hell to pay'?

[ObviouslyNotSpam]

Trump could shoot somebody in the Gaza Strip and he wouldn't lose any voters.

(Ha ha ha.)

[Commenter_XY]

Pres Trump would be nominated for a third term if he personally waxed some hamas homies 🙂

[ObviouslyNotSpam]

Do 52,229 M795 155-millimeter artillery shells, 30,000 M4 propelling charges for howitzers, 4,792 M107 155-mm artillery shells and 13,981 M830A1 120-mm tank rounds make a "whoosh" sound when flying over your head?

[ObviouslyNotSpam]

(misthreaded; see above)