The First Monday in October

The first Monday in October does not get a special note on most calendars, unless you are in the government or parts of the legal profession. This is the day the Supreme Court of the United States usually begins its term. And this term is expected to be more notable than most for the government’s least visible branch.

The expectations are probably the reason several of the usually reticent judges who sit on the court have been unusually public in their comments and complaints in recent weeks following a three month “recess” which was also unusual for the amount of news it made.

The Griping Justices

Nearly a year ago Justice Samuel Alito gave a speech to the right wing Federalist Society, the one which has been picking court nominees for Senator Republican leader Mitch McConnell and Republican presidents for years. Bemoaning what he characterized as growing threats to free speech and religious liberty, Alito took aim at the Supreme Court’s historic decision that same-sex couples have a right to marry, along with recent cases on abortion rights and restrictions imposed to prevent the spread of Covid-19. The speech drew widespread criticism from legal scholarsadvocacy groupssenators, and others, who suggested that Alito exercised poor judgment and may have crossed ethical lines.

During the recess Alito complained about criticism the court’s conservative majority had hidden behind it’s “shadow docket” in allowing a new Texas law to take effect before its constitutionality made been reviewed.

Earlier this month, the newest justice, Amy Coney Barrett, gave a speech lamenting how the Court is
viewed as partisan and warning that her fellow justices must be “hyper vigilant to make sure they’re not letting personal biases creep into their decisions.”

Barrett spoke at the University of Louisville at, of all places, the celebration of the 30th anniversary of the opening of the McConnell Center. That’s as in Senator Mitch McConnell. The irony is so thick you need a knife to cut through it. It was the Republican’s unseemly rush job which successfully installed the right wing Trump campaigner Barrett into the still warm seat that had been occupied by the champion of women’s causes Rugh Bader Ginsberg.

That rush job, after McConnell denied President Obama the right to fill the seat of Justice Antonin Scalia, triggered the latest group of public criticism as people rightfully fear the new 6-3 right wing majority on the court will impose its own ideology. That ideology is increasingly out of step according to the latest polls, with trust in the court its lowest since it placed George W. Bush into the White House even though he had lost the popular vote for president.

That same week Justice Clarence Thomas spoke at Catholic Notre Dame University, blaming the media for the Court’s declining image, “I think the media makes it sound as though you are just always going right to your personal preference,” he said. “So if they think you are anti-abortion or something personally, they think that’s the way you always will come out. They think you’re for this or for that. They think you become like a politician.”

Thomas is probably the most predictable of the “politicians” on the court. He is also a walking, talking conflict of interest. We have no way to tell how many times he has ruled on a case involving clients of his Republican lobbyist wife. That’s because the Supreme Court justices are the only judges in the entire country who do not have to adhere to a code of ethics. Congress imposes one on other federal judges, but it is believed the Constitution allows only the Supreme Court to impose such a code on itself.

To be fair Justice Stephen Breyer, of the left wing, has also been out and about. Breyer is pushing his new book and complaining that the growing image of the Court “could undermine both the Court and the constitutional system of checks and balances that depends on it.” Breyer, the oldest sitting judge at 83 years, has been under increasing pressure to retire and allow President Biden and the very slim Democratic majority in the Senate to replace him with a young progressive before Democrats lose their Senate control. He’s made it clear he’s not going to do so. And progressive Justice Sonya Sotomayor, who has written some harsh dissents from the opinions of the right wing majority, is warning that there will be more in the months ahead.

By the time the last term ended in June it had become clear that the Roberts court, with Chief Justice John Roberts providing the swing vote, is over. The age of right wing justice has begun. Now it begins in earnest.

The New Term

The new term, dominated by six Republican appointees, promises to bring more of the last tumultuous year. On abortion, still the hottest legal issue in the nation fifty years after 1973 the decision in Roe v. Wade, the Court seems ready to overturn its ruling that states could not ban the procedure before viability defined as the end of the second trimester. On December 1 it will hear a challenge, Dobbs v. Jackson Women’s Health Organization, to a Mississippi law that bars most abortions after 15 weeks. The law is a direct challenge to the precedent set in Roe and specifically asks that that decision be overturned.

This summer, acting under the cover of the “shadow docket” and made public at 11:58pm, the Court refused to delay the implementation date of a Texas law that effectively bars abortions in that state after the first six weeks. Justice Alito complained that the media had depicted the conservative court as a “cabal” deciding cases in secret and in the “middle of the night.” That is exactly what they did. It is absurd to believe that the Court would let the Texas law go into effect without the expectation that Roe will have been overturned by the time challenges to it make it to the top court.

Also this summer, using the shadow docket and with Roberts dissenting, the court’s conservative majority rejected the Biden administration’s policies on asylum and evictions.

The Court having already eviscerated voting rights, can be expected to refuse to block Republican gerrymandering during the upcoming redistricting season, or to block attempts to challenge legislation enacted in dozens of states designed to restrict access to the polls by people of color.

It has been more than 10 years since the Court considered a Second Amendment case. On November 3, it will hear a challenge to the constitutionality of a New York law, New York State Rifle & Pistol Association v. Bruen, that limits the carrying of guns outside the home.

There is also a religion and government case to be considered before the end of the year. On December 8, the Court will hear Carson v. Makin, a challenge to a law in Maine which excludes religious schools that offer religious education from participating in a state tuition program.

We Can Listen

Due to the Covid restrictions the Court hasn’t actually sat together in its courtroom for some eighteen months. It could easily have allowed us to watch its Zoom sessions. but no such luck. We were allowed to listen to the audio as it actually occurred, something of a major breakthrough for the camera shy justices who seem to forget they are employees of the people and are doing the people’s business.

Some day there may be some light at the end of the Court’s tunnel, the Senate Judiciary Committee has approved legislation expanding the use of cameras in federal courts, which may put the judges, including the Supremes, on television. The Court, of course, opposes it. But the Congress pays the bills.

As for now, Covid restrictions will still keep the public out of the courtroom. But the audio of the hearings will be transmitted as they are happening.

Watch. It’s a start. And remember, the president and senators choose the judges. But we elect them. The ultimate responsibility for the decisions they hand down lies with us.

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“Déjà Vu”

I’ve been trying to make sense of it because I’ve been here before. On the left, Saigon, April 29, 1975. On the right Kabul, August 16, 2021. In 1975 I was at my first post school job in the CBS newsroom in Chicago. The helicopters were evacuating Americans and Vietnamese who had worked with Americans as they fought the communists. In 2021, I’m at the other end of my career. The helicopters are taking out Americans and Afghans who worked with Americans as they fought the Taliban. Forty-six years between these similar scenes. It is eerie.

Yes of course there are many differences between the two events. But from my perspective, there are far too many similarities. We do not seem to learn from history. We just repeat it.

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9-11 Plus 20

I doubt I will go to witness the ceremony of remembrance at the 9-11 Memorial this year, the twentieth anniversary of the terrorist attack. I am never comfortable when I am at the 16-acre site of the World Trade Center in Manhattan. It’s not the memories. Those come and go depending on what is going on in the world. It’s the images which lingered before me for months after that day. Now they almost never return. Unless I am at the site.

On September 11, 2001, my wife Amy and I lived in Battery Park City in lower Manhattan. We had moved there from midtown just a few months earlier. Our apartment building was at the south end of the neighborhood, south and west of WTC Tower #2. I was the New York Bureau Chief and Senior Correspondent for public television’s Nightly Business Report and the newsroom/production facility/broadcast studio was just across West Street, even closer to the tower, due south of the site. Tower #2 filled the window of my bedroom, and of my office.

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If He Builds It, We Will Come

August 13, 2021 Update

I don’t mean to brag but, well, yes I do. My hometown Chicago White Sox beat the New York Yankees 9-8 in the Field of Dreams game with a dramatic bottom of the ninth inning walk off home run by Tim Anderson. The lead had changed hands several times. There is no hiding the fact that baseball faces some big challenges in the years a ahead. Perhaps this event will help. It was a great game.

August 12, 2021

Tonight the Chicago White Sox and the New York Yankees will play the first major league baseball game ever in the state of Iowa. There will be eight thousand people in the stands. They will have paid from $1,500 to $5,000 for the privilege. The town of Dyersville, Iowa, the game’s location, has a total population of about four thousand. The game will be telecast on Fox at 7:15 Eastern Time.

The special game commemorates the thirtieth anniversary of one of my all time favorite films, Field of Dreams, which stars Kevin Costner, Amy Madigan, James Earl Jones, Ray Liotta, Timothy Busfield, and in his last film role, Burt Lancaster. The anniversary was actually last year but the tribute game, originally scheduled for 2020, was delayed by the Covid shutdown.

This is the story of a man named Ray Kinsella who came of age in the turbulent 1960s and has decided to head for Iowa with his wife and young daughter and take up farming in search of something he is not quite sure of. There, while out tending his corn crop he hears a mysterious voice saying, “If you build it, he will come.” And he sees a vision of a baseball field in the middle of the corn. He plows under his corn and builds the field. Eventually, a group of “ghost” players from the disgraced Chicago Black Sox team of 1919 show up to play.

Yes, this is a fantasy. If you can’t get your mind around that you may as well stop here and wait for my next blog on public affairs. It is also an ode to the sport of baseball, perhaps not as popular as it once was but still the great American pastime. It is a romance guys can shed a tear over without embarrassment, for it is the story of a man’s love for his family, his sport, and his father. And it is a teacher of life’s great lessons. Don’t put off telling people what they mean to you. If you wait too long you may never get the chance. And don’t search too hard for what is important, it is probably right in front of you.

I still remember seeing my first professional baseball game. My father took the nine year old me to watch the Chicago White Sox at Comiskey Park. The Yankees were playing. I was already playing baseball at school and summer camp and I was never much of an athlete. But baseball was a game you could play at all skill levels, and later in life I still enjoyed playing whether is was an intermural game at college or a game of mixed softball between other newsroom teams in Chicago’s summer soft ball leagues.

The wonderful actor Kevin Costner, on the other hand, is a serious athlete with a special love for baseball. He is often involved with professional teams and might have been good enough to play in the majors if a little thing like his film career didn’t get in the way. He starred in three of the greatest base ball films of all time, Bull Durham and For Love of the Game as well as Field of Dreams. He played a retired baseball player in The Upside of Anger and narrated the documentary, Fastball. Costner has said he was reluctant to do Field of Dreams because he had just finished Bull Durham but changed his mind once he read the script by Phil Alden Robinson, who also directed, and W.P. Kinsella, author of the book, “Shoeless Joe” on which it is based.

But beyond Costner’s wonderful performance and the great script, there are great moments for all of the supporting players.

There is Amy Madigan, who plays Kinsella’s wife, Annie. Also a child of the sixties, as am I, she stands by Ray even as their financial situation gets more and more dire because of the baseball field occupying space needed to grow enough corn to keep the farm in business. Even as Ray reacts to a second message from the mysterious voice, “Ease His Pain.”

Little needs to be said about the presence of James Earl Jones in any film. Here the great actor plays a J. D. Salinger like character, a reclusive author, the real Salinger whose name was used in the novel reportedly objected. Jones’s “Terence Mann” acts as an expository partner for Costner’s Kinsella until the end when he delivers a monologue, that ode to baseball I talked about earlier, as worthy as any Shakespeare performance you might see. “People will come” to see the mysterious “ghost” players from years gone by to play the game they love in Ray’s field, he tells his friend.

Ray Liotta plays “Shoeless Joe Jackson,” the player from the days of the Chicago Black Sox scandal who arrives at the field first. Timothy Busfield , who plays Annie’s pain-in-the-rear brother Mark who is allied with a group of investors who want to buy the mortgage note on the farm which Ray cannot pay. Mark can’t see the players on the field of course, because Mark does not believe. There is the child actor Gaby Hoffman, who plays Ray and Annie’s daughter, Karin and tells Ray that the people who come to watch the game will gladly pay enough money to save the farm.

And then there is the legend Burt Lancaster, in what was to be his last performance. Lancaster plays a doctor loved by the people of his small town. But Dr. Archibald Graham has a secret. He once played baseball in the minor leagues and was called up to the majors on the last day of a season. He played one inning. The ball was never hit in his direction. He never got to bat and never got another chance. “Moonlight” was the nickname they gave him. He regrets never having batted, and Ray commiserates after somehow being transported back in time to meet Graham, that it was a tragedy. (Skip over the time travel thing please, I told you this is fantasy). “No,” says Moonlight, “it would have been a tragedy if I had never had a chance to become a doctor.”

These lessons are all here to be learned. And at the end, Ray realizes that his father, John, played by Dwier Brown, is the catcher on the ghost team. “He” has come. Father and son have a catch, the catch Ray never had with his father when he was still alive. The “pain” was Ray’s. And it has now been eased. There isn’t a dry eye in the house.

So watch tonight’s game. Go see the movie. Appreciate what you have. Don’t regret what you have not. Be good to your parents. And to yourselves. And to everyone you love.

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A Guest Blog From The ICU

I know it has been a while since I last wrote. I’ve been dealing with some legal problems which I may be writing about in the future but for now are all time consuming. I do have a half written blog about the resurgence of Covid-19 and the idiots who refuse to get vaccinated which may see the light of day after my court deadline on Friday. But for now I want to share this blog from an Intensive Care Unit nurse which was posted on Twitter. It is brilliantly written and heart rendering. Please read.


I became an ICU nurse at the end of July in 2020, during one of the first peaks of Covid when it was all still so new. I learned how to be a nurse behind a respirator and a yellow gown, amidst the constant beeping and hissing of ventilators that couldn’t support failing lungs. Because I was so new, I had no baseline for what normal nursing looked like; I just had a vague sense that it couldn’t look like this. The unit was bleak and everything we did felt futile, and I realized at some point I felt more like a ferryman to death than anything else. Some people lived, if they never got to the point they needed Bipap. Most didn’t. By the time they came to us they were too sick, their lungs too shredded, kidneys already failing and blood already clotting and so often beyond the power we had to heal. I would watch, feeling helpless, as they would go from a nasal cannula to a Vapotherm to a Bipap, and then when their chests started heaving and they started sweating I knew with heavy dread that soon they would be intubated.

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No Bill. Just No.

This tweet was posted by Bill Cosby shortly after he left prison and returned to his home. IMHO, never has a bigger piece of BS been posted on the Internet. For those in the audience who are even older than I am, IMHO means, In My Humble Opinion. These acronyms abound in the world of social media but it is becoming more and more important that I remind readers that this blog represents my opinion. This is because now that Chief Justice John Roberts has achieve his lifelong goal of nullifying the Voting Rights Act and eviscerating the Fifteenth Amendment along with it, Justices Neil Gorsuch and Clarence Thomas are taking aim at the First and the Sullivan exemption for critics of public figures may not be long for this world. That’s a subject for another day.

Today we have Bill Cosby. I have managed to avoid writing about Cosby for years. But this tweet, posted just hours after the comedian who was put on trial for sexual assault, convicted by a jury, and sentenced to spend 3-10 years in jail was released from prison, was the last straw.

No, William Henry Cosby, Jr., your release has nothing to do with innocence. It does not make you innocent. And your victory dance is both unseemly and unsightly for a man who remains, in my opinion, both a disgrace and a profound disappointment.

A disappointment, because I still remember my first serious date. The year was 1968. I had my new driver’s license. I had convinced my mother to let me borrow her car. I had convinced a very nice high school classmate to join me on this expedition. And she had convinced her father to trust me with his daughter on a Saturday night trip to downtown Chicago for a grownup dinner and then a show.

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GOP ∞ – Democracy 0 – Roberts 😉

The racist party scored another infinite victory in the United States Senate with all 50 Republicans voting against even discussing legislation to overhaul election law in America. Of course the Constitution says in case of a tie vote the Vice President, currently Democrat Kamala Harris, breaks the tie. But this democratic majority rules standard doesn’t apply here because this wasn’t a vote on passing into law the “For the People Act.” This was a “motion to proceed to consideration.” This little bit of nonsense, known as a cloture vote, requires a three-fifths vote. A 50-50 tie doesn’t cut it. You won’t find this “filibuster” rule in the Constitution either. It has been a tool of the racists for years.

The law would protect voting rights, end partisan gerrymandering, establish new ethics rules for federal officials, and curb big money in politics. No wonder it didn’t stand a chance. Republican senate leader Mitch McConnell called it a “power grab” by Democrats.

Let’s just make a little reality check here. Senate Democrats represent 43 MILLION more people than Senate Republicans but 41 Republicans representing just 21% of the voters in the country can block the For the People Act, which is supported by 68% of Americans. Democracy is the loser here.

And what exactly are the terrible things this For the People Act would address? They are the things that would combat the seemingly never ending attempts to keep in force the Jim Crow laws which are designed to prevent primarily people of color from voting. These laws institutionalize the practices which interfere with the Fourteenth Amendment guarantee of the right to vote.

  • Partisan gerrymandering as a tool for disenfranchising voters.
  • The principle that people should choose who represents them instead of the other way around.
  • That we should make it easier for people to vote, not more difficult.
  • That corporations should not be able to buy elections.
  • That dark (or untraceable) money does not belong in politics.
  • That government should work for the people, not the special interests.

These are all things Republicans cannot stand for the simple reason that when people vote, Republicans lose. And Mitch McConnell doesn’t like to lose. The man who represents the four and a half million people of Kentucky just loves telling presidents elected with 80 million votes where they can stuff it. He blocked the agenda of Barack Obama. Now he’s blocking the agenda of Joe Biden.

But McConnell isn’t the only winner in this vote. Let’s not forget that it represents a great victory for John Roberts, Chief Justice of the United States. John Roberts has made the destruction of the Voting Rights Act of 1965 his lifelong crusade. His opposition to the Act dates back to his days as a law clerk for then Associate Justice William Rehnquist. Rehnquist, also to become a Chief, notoriously wrote a memo in 1952 stating, “I think Plessy v. Ferguson was right and should be re-affirmed.” Plessy was the infamous “separate but equal” case institutionalizing racism in public schools. It was overturned by Brown v. Board of Education in 1954.

Roberts, made Chief by President George W. Bush in 2005, got his ultimate chance to fight back for the cause of racism in America in 2013, demonstrating the hypocrisy of the typical Republic talking point that the courts should defer to the legislative branch and refrain from “activism” in their interpretation of law. In Shelby County, Alabama v. Holder, Attorney General et al. Roberts, writing for a 5-4 conservative majority, gutted the Voting Rights Act. In Shelby, Roberts struck down the Act’s formula determining which states had to receive advance federal approval for their changes in election law and procedure. Roberts complained that the “preapproval rule” for some states should not remain in force for such a long time without Congress updating the data on racist regulation in their territories which led it to enact the remedy. He mocked critics, telling them the states would not be so bold as to resume their racist activities. “Our country has changed,” he concluded.

Five years after the ruling, nearly 1,000 polling places had closed, many of them in predominantly African-American counties. Research shows that changing and reducing voter locations can reduce voter turnout. A 2018 report by the U.S. Commission on Civil Rights (a bipartisan, independent commission of the United States federal government) found that there had been an increase in laws making it harder for minorities to vote. The commission found that at least 23 states enacted restrictive voter laws, such as closures of polling places, cuts to early voting, purges of voter rolls, and imposition of strict voter ID laws.

According to the nonpartisan Voting Rights Lab, so far 18 states have put in place more than 30 laws restricting access to the ballot. These laws will affect around 36 million people, or about 15% of all eligible voters. In Georgia, a new law means that county election boards will no longer be bipartisan but will be appointed by Republicans; other states are similarly stripping power from Democrats to put Republicans in charge.

Roberts does not limit his disfavor to legislation designed to protect voting rights. Housing rights are on his radar as well. Is the Chief a racist or is he just naïve? His history indicates he is getting exactly what he wants.

There are some Democrats who believe the loss of this vote, preordained and expected, is just part one of a series of battle that will eventually produce voting rights legislation that will be less expansive than the For the People Act but still effective. One can only hope.

But history shows wishful thinking is not a viable political strategy and I see little likelihood Republicans will do anything that can be labeled bipartisan. The only answer seems to be to keep the votes, and losses, coming and run on these issues in 2022.

Perhaps a few extra seats in the Senate can be won by Democrats. But with Republican state legislatures left to gerrymander the boundaries of their districts, see my personal favorite abomination below ,designing them to disenfranchise people of color in Houston, one has to wonder if there is any hope for Democrats. Or for Democracy.

Texas 2nd Congressional District

The district is represented by Republican Daniel Crenshaw, who is one of the insurrectionists who tried to overturn the 2020 presidential election of Joe Biden. The boundaries of the district have been drawn to take as many black and Hispanic voters out of the other districts more generally in Houston, to reduce their numbers, while still being fewer than the number of white suburban voters included. That insures a Republican seat and renders ineffective a large number of minority voters who might prefer a Democrat. What a racket.

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