My Indonesian Yacht Cruise Was A Raft Trip On The Yentna With Ted Turner

[For those who are used to Twitter and need the this to read this in 20 seconds, skip down to the bolded question, What does this have to do with yachts cruising Indonesian islands? For those that want some context (and a little history on how the Anchorage Assembly first got onto cable, start at the beginning.]

 

Michael Shamberg's Guerilla Television had put video literacy into my life goals.  It pointed out that we are taught to read and write at school and given some skills in recognizing when written language is being used to manipulate us. (This was the 70s when schools still did that.  I think many still do, but I'm guessing a lot don't.)  

Shamberg's premise was that we were getting so much news via television that we needed that same sort of training in videography.  The book was a treatise on what was wrong with how news was created and a citizens handbook for how to make people's videos and how citizen created videos would change the world.  This was at a time when video cameras were pretty bulky and pricey, and there weren't any outlets for citizens to show their videos. There weren't even any Blockbusters yet.

I'd say Shamberg was pretty visionary. Eventually cameras on phones gave everyone a pocket video recorder and YouTube offered everyone a people's theater where anyone could show their videos and anyone could watch them.  Social media have extended the audience even further.  

And so when cable television was beginning to show up I was paying attention.  I was reading cable industry journals and even went to a few conferences on cable public access.  I was especially excited about the contracts around the country that required the cable companies to set up public access video studios with cameras and editing equipment so people could make their own videos. They also required public access channels to play those citizen made videos on. Sure, the audience was limited to cable viewers, but it was a step in the right direction. 

Multivision had bid for the contract in Anchorage.  This was 1982 or 83.  I was working on loan from the University to the Municipality of Anchorage for a couple of years.  I read the Multivision proposal and was dismayed that there was no provision for a public access video studio or a channel for people's video.  I kept telling Cathy Allen, Mayor Knowles' chief of staff (I think that was her title) that the Municipality should be demanding that such provisions - modeled from Outside cable agreements - be included in Multivisions' contract.  She kept treating me like I was crazy.  I kept sending her memos (yeah, email was not available yet)  about the Alaska Public Utility  Commission's meetings on cable.  One was coming up soon where there would be public testimony. On the day of the meeting I got a call to come up to Allen's office right away.  She'd just come back from a national conference and a city manager from a big city had sat her down and told her how important it was to have public access in cable contracts. Nothing I hadn't been telling her, but he was more credible to her than I had been.  So yes, I could go to the meeting and represent the Muni that afternoon.  

Fortunately, I'd been reading the proposal and comparing the prices they were proposing for monthly subscriptions and had lots of information about public access in other cities.  

So there I was, at the last minute, running down the street to the meeting.  There weren't a lot of people there and they all seemed to be Multivisions boosters.  Then my turn to talk came.  I nervously compared Multivisions prices to Outside prices and said something like, "I understand it is more expensive to operate in Alaska than it is Outside, but it's NOT three times as expensive!"  I also talked about how most cities were requiring cable companies to have public access studies and a public access channel.  And I sat down.

At the next break, I was mobbed by six or seven people asking me, essentially, "who the hell are you?" did  I really represented the Muni.  

As time went by I was back arguing that Multivisions should be televising the Assembly meetings live.  Not possible they said.  At that time they were meeting in the Muni's Tudor Road buildings and they said it wasn't wired for cable.  It would have to wait until the new Loussac Library opened.  

But for some reason the Assembly  had to move out of the Tudor building and temporarily went to the new Convention Center on 5th Avenue.  And I knew that building was wired.  By that time I'd gotten some others to join me and we had set up a non-profit for this project - something like Anchorage Media Access Group.  I lobbied the Assembly members and they agreed to a six month trial and allotted a paltry sum - maybe $3000 for that.  Our non-profit sent out an RFP to every third video business in the Anchorage media resources book.  We got two bids.  One was way beyond the money the Assembly offered.  The other was a budding videographer who agreed to do it at a ridiculously low price with the help of volunteers (ourselves and a few others) who would staff the cameras for him.  

At first, he balked. He couldn't trust his expensive cameras to volunteers.   But he relented when we pointed out that he couldn't afford to do it any other way.  And so the Assembly began its six months experiment being broadcast live on Anchorage cable.  

While Assembly members had had a number of doubts - it would lead to grandstanding, those without cable wouldn't have access, etc. - after several weeks they were all won over.  They had so many people say they saw them on cable and they had people showing up saying they were watching at home and had to come down to testify.  At the end of the six months they approved a much larger budget and our videographer got the contract and we stopped having to supply volunteers.  We disbanded our non-profit and gave the Assembly back the $500 we still had left and asked them to use it to support televising the Assembly. 

 

What does this have to do with yachts cruising Indonesian islands? 

Somewhere along this cable path, I got an invitation from Multivision to go on a float trip on the Yentna River with Ted Turner whom they were bringing up to Alaska.  That sounded very cool, but unlike a certain US Supreme Court justice, I didn't consider accepting for a second.  

I understood that I hadn't been randomly selected for this honor, but that it had to do with my advocacy for a better deal for Anchorage citizens and my advocacy for getting the Anchorage Assembly live on cable. And that this might be their way to get me to tone it down or who knows?.  I thanked them and said I couldn't accept their offer. 

Clarence Thomas, on the other hand, seems to have had no qualms about accepting annual half-a-million dollar vacations and didn't see it necessary to report these on his annual financial disclosure forms.  

The wealthy Republicans have been smart and have taken a long range planning approach to maintain power. When Bork got turned down for the Court, they apparently realized democracy was no longer enough.  

Lobbying has been a traditional way to get legislators to vote against the interests of their constituents.  This relationship is strengthened by campaign contributions. And secrecy. But even better would be owning a Supreme Court that decided their way if the legislature wouldn't.  

The Democrats have not been as Machiavellian and were not very good as spotting the stealth takeover  of the Supreme Court the Republicans, through the Federalist Society, had worked on for so many years.  

And with Trump as president, they succeeded in taking over the Court.  Justice Kennedy abruptly resigned to make room for Kavanaugh.  I'm still certain there's a cloak and dagger story about how Kennedy was convinced to step down, that would include his son's work for Deutsche Bank, the last major bank still willing to lend money to Trump for his projects. And Justin Kennedy was the man who made those loans happen. 

But since Trump essentially turned the job of picking his court nominees over to the Federalist Society, it's pretty clear that they had something to do with Kennedy's resignation as well.  The first link is to a speech by Sen. Whitehouse - the Senate's most active and vocal observer of how the Federalist Society has managed the sharp lurch to the right of the Supreme Court.  But for those of you who need a different source, here's a report from The Hill.  Speculation?  Sure.  But a lot of clues point in the right direction. And like Thomas' vacations with the Crows, I'm pretty certain there's lots we don't yet know.  At least there are facts and motives pointing in this direction, which is way more than the Republicans have for every major scandal they scream about daily.  

Breakdown of Norms

From Oxford Bibliographies:

"[Norms] are most commonly defined as rules or expectations that are socially enforced. Norms may be prescriptive (encouraging positive behavior; for example, “be honest”) or proscriptive (discouraging negative behavior; for example, “do not cheat”)."

Basically, norms are the rules that are socially, rather than legally, enforced.  When people break the norms, public opinion is the force that 'rules' the consequences.  Politicians lose elections, officials resign their posts.  

But we're in a period where Republicans, particularly, are no longer constrained by norms.  They're no longer constrained by laws. (Sure, politicians on both sides have fudged the law forever, but they did it clandestinely, not flagrantly out in the open.)  While Trump is by far the most egregious example, his Republican colleagues in the House and Senate have gone along.  The Senate had the power to remove him from office after the House voted for impeachment.  Twice.  

They didn't.  Instead, they rammed through the nominations of Kavanaugh and Barrett.  

Not all the Republicans are completely craven, but they are all much more interested in their reelections than they are in maintaining traditional norms of appearing to support the public interest, 

And Fox News, particularly, has worked closely with Trump to make sure their viewers are fed the stories they (the viewers) want to hear, no matter how much they deviate from truth.  Those Republicans who stood up to Trump, even slightly, have either retired (rather than face Trump's cult in the primaries) or they were defeated in the primaries.  Alaska's Senator Murkowski is the only exception I know of.  She used a write-in campaign to overcome a primary defeat in 2012.  In 2022, Alaska's new Ranked ChoiceVoting went into effect, which eliminated closed party primaries and put all candidates for each office into one primary. 

The wealthy Right Wingers know that their ideas are not popular with the voters.  Ending abortion, no restrictions on guns, racial discrimination, election manipulation are all opposed by healthy majorities of the general population. 

To win, Republicans have to rig the game.  Pack the Supreme Court with judges who rule in favor of business most of the time.  Gerrymander state voting districts to get far more Republicans elected even when the actual numbers of both parties are much more even.  Suppress the votes of minorities and the young in as many ways as they can think of.  Oppose all bills to help overcome the disparities in wealth, access to food, housing, education, and health care. In fact oppose all legislation that might be good for the country that Biden could take credit for.  And now we're seeing the truly power obsessed trying to control women's rights to decide their own health care, even banning out of state travel for those seeking abortions.  

With a strong Supreme Court majority, Republican governors are writing laws so far out of the bounds of US social norms and violate decades old Supreme Court precedents.  They are doing this in anticipation of the new Federalist Society judges overturning all those precedents as just as they overturned Roe v. Wade.  Voting rights?  We're back to a post Civil War Supreme Court that used States' Rights to allow disenfranchisement of blacks and lynchings among other terrible practices.  

And when Clarence Thomas says in his brief official statement that he read the rules and consulted with others and they said he didn't have to report transportation, he's telling me that he has NO business being a US Supreme Court Justice.  

• First, this is so extreme an example - half a million dollar vacations for 20 years!  Any reasonable person knows this sort of 'gift' needs to be reported  (I didn't have to go to law school to know accepting a pricey trip with a celebrity was the wrong thing to do.)
• Second, if Thomas has trouble interpreting such obvious and simple disclosure rules for judicial gifts, then he is hardly qualified to interpret the US Constitution. 
• Third, if he is capable of such interpretation, then he's intentionally flouting the rules and the norms for his own advantage.  In this case his perceived best interest was non-disclosure. One would assume that is also how he often interprets the law and the Constitution in his Supreme Court decisions.  
• Fourth, hanging out with the Crows and their yachting friends helps to shape his ideas of his own best interests and appropriate interpretations of the Constitution.

CONCLUSIONS

Like most such issues, this one is entangled in many overlapping contexts of law, of history, of politics, of economics, of ethics, that it is difficult to discuss it without either leaving important points out or without getting so long and complicated people won't finish.  

A key issue I'm leaving out is accountability of career and elected public officials.  Of course Trump and Fox have so violated societal norms of behavior and of truth telling that we seem to be in a completely different place than we were five or six years ago.  Though another part of me believes that the craziness we hear these days has always existed.  But today's technology enables much more of it to be seen and heard by the public.  

If that's true, the good news is that all this ugliness is being exposed - from police brutality to overt racism (OK, those two are probably intertwined), to sexual abuse, etc.  The bad news is those with norm-violating behavior and thoughts have found support for their anti-democracy desires.  

Before the Republicans get ultimate control of the courts and can manipulate all elections, we need to get all the folks who are still within traditional norms, but have given up on voting, to go vote.  There are still tens of millions of people who have come up with excuses not to vote.  (And this is also in part due to the Right's propaganda about how terrible government is, Democrats are, and how corrupt elections are.)  

Those who want Democracy to carry on have an obligation to get everyone who doesn't normally vote, to vote in the next few elections.  And the Republicans' extreme power grabbing - abortions bans, LGBTQ+ baiting, anti-Semitism, book banning, expulsion of duly elected legislators are all helping to get those voters to the polls in the next elections.   

We need enough Democrats in state legislatures and in Congress to overcome Republican attempts to turn the US into an authoritarian regime favoring wealthy white males who distort the Bible to further their interests.  

Supreme Court Redistricting Decision Is Still Being Written - What I'd Like To See Them Address

 It's been nine months since the Supreme Court first ruled on the Alaska Redistricting Board.  That was a relatively short opinion which just answered the most immediate questions - was the latest plan acceptable and if not what needs to be done?.  They left themselves until later date to write up their reasoning for the decisions they made.  

The Alaska Court system suspends the pay of judges who don't complete their written decisions within six months of the trial..  But the Supreme Court is a little different because there isn't just one judge.  The judges who sat on the case must all agree or complete their dissenting opinions.  The Court's clerk explained to me that a draft is written and circulated to the judges.  If there are changes, the six months clock is reset.  

The Redistricting decision is no longer time sensitive.  Given that the Court hasn't issued their decision suggests to me that the last Proclamation Plan will be the plan for the rest of the decade.  If not, they needed to let the Board know that early enough to make adjustments for the 2024 election.  If there were going to be any changes, they would be limited to a few Anchorage Senate seats at most.  So, I could be wrong, but I suspect the Courts longer, explanatory decision will leave the current Proclamation plan in place.  

The decision they are currently writing will be for the 2030 Redistricting Board.  They are taking their time, I assume, so the next redistricting board will have the clearest possible guidelines for what they should be doing and should not be doing when they divide the state into 40 House districts and 20 Senate Districts.

I've discussed some of the key outstanding issues in a Previous post.  I'm repeating part of that post here.  I've made some changes and added part 4.

Some things the Court ought to answer:

1.  Explain what appears to some as a contradiction between past rulings that said everything within a Borough boundary is considered Socio-Economically Integrated (SEI) and their finding this time that Senate pairings in Anchorage were political gerrymandering.  Those two findings are not necessarily mutually exclusive, but since the Board's attorney's mantra was "everything within a Borough is SEI" based on previous Court rulings, the Board majority seemed to think that then they could pair any two contiguous house districts within the Municipality of Anchorage, and it would be fine. (Contiguity being the main legal criterion for a Senate pairing.)  Aren't things like race, economics, political leanings part of Socio-Economic Integration? Why then are factors like race, economics, and political leanings  within a single Municipality  indicators of political gerrymandering?  That needs to be explained.  And maybe the past rulings about everything in a Borough being SEI should be adjusted to reflect the differences within a Borough as populous as the Municipality of Anchorage.  Here's a post I did looking at past rulings about SEI.

[UPDATED Sept 4, 2022:  Maybe this is better focused:  I'd like to see the Court explain how they differentiate the criteria used to determine political gerrymandering and the criteria used for Socio-Economic Integration (SEI).  If Board Member Marcum hadn't mentioned that ER would have gotten an extra Senate seat, would the other characteristics of the two paired house districts been irrelevant?  At one point in the Supreme Court hearing there's an interaction between Board attorney Singer and Supreme Court Justice Warren Matthews [not to be confused with Superior Court Judge Thomas Matthews or Board attorney Matthew Singer] on terms like 'communities of interest,' and 'equal protection.'  It would be nice if they could explain clearly the different concepts that Attorney Singer discussed and how the Court distinguishes between the idea that a Borough, by definition, is SEI, but, as Justice Matthews pointed out, there are differences in communities of interest within the Borough of Anchorage.]

2. Address the issue of geographic contiguity.  While the House districts paired in the revised map were technically contiguous, the borders that were touching were in unpopulated and roadless mountain areas.  While that 'connected' the two districts physically, the communities in those two districts were geographically far apart (relative to the population of Anchorage) and not really sensible political units. 

"Auto-contiguity" came up as a concept.  That 'auto' refers to cars - can you drive from one part of the district to another without leaving the district?  This was an issue in the Valdez/Mat-Su case and in the Eagle River Senate pairings. 

 I understand that being contiguous in large, roadless rural districts will sometimes require those rural Senate seats to have much less ideal connections between communities.  But in urban areas where there is much greater population density, it seems more than reasonable to consider contiguity as a continuum from "more to less," than an "either/or, yes/no," evaluation.  It was clear that the Board majority paired HD 22 and HD 9 with such an unusable border for political reasons.  The Hickel Decision tell us that

"In addition to preventing gerrymandering, the requirement that districts be composed of relatively integrated socio-economic areas helps to ensure that a voter is not denied his or her right to an equally powerful vote."

In urban areas, extreme contiguity such as we had, should also be an indicator of possible gerrymandering,  particularly when much more natural contiguity alternatives are available.  

3.  Explain why the Supreme Court disagreed with Judge Matthews' finding that the Board needed to pay more attention to public testimony in the Skagway case.  Did they disagree with his reasoning on the Board's need to justify why they were making a decision that was contrary to the overwhelming public testimony?  As I understand it, they basically said, it didn't matter since the district met the criteria for a district.  

4.  The State Constitution says that Board Members should be chosen without regard to political party.  This has rarely been the what actually happens.  And in this case, the Governor picked three Board members who were not only Republicans, but were highly partisan Republicans who, in the end pursued maps that were clearly politically gerrymandered.  Budd Simpson even testified that he was selected for the Board because there are many Republicans in Southeast.  The Court did not really deal with this clear violation of the Constitution by the Governor in selecting Board members.  But perhaps it was on their minds when they said the Board was guilty of illegal gerrymandering with some Anchorage Senate seats.  It would be very helpful if the Board set some standards for dealing with such partisan choices by those given the power to choose Board members. If they don't, they are essentially saying that that part of the Constitution is unenforceable.  

5.  There was a request from Calista plaintiffs that ANCSA boundaries be found acceptable as local boundaries for the Board to use making their maps.  This makes some sense in situations where those boundaries connect villages (water districts, schools, roads).  But the for-profit Native corporations are just that: profit making corporations that have a lot of power.  We wouldn't want corporations, say like Conoco or Monsanto, to have their own corporate political districts.  I think the Native Corporations have the burden of proof here that they are sufficiently different, in ways that matter to elections, that it would be okay. Or the Court could identify which ANCSA boundaries might be permissible and which might not.  Would making a district that exactly matched the boundaries of a Native Corporation be legal?  By refusing to accept Cantwell into the larger 'Calista' district, the Court suggests probably not.  More clarification would be helpful.  

6.  Also on hold has been the decision about whether the Board has to pay attorney fees for the Girdwood plaintiffs. 

About Making Assumptions: Looking Up Lisa Blatt Before Finishing This Post

 A week or so ago an attorney arguing before the US Supreme Court claimed:  [You can read the transcript here page 28.]

"but, yes, it's just been -- I mean, the world has been around for, like, 7,000 years, and no country has ever tried another country.

(Laughter.)"

The case is TURKIYE HALK BANKASI A.S., )AKA HALKBANK, )  v. UNITED STATES and involves a challenge to the US' ability to bring suit against a Turkish bank on the grounds it is part of the sovereign nation of Turkiye.  (Yes, that's the new formal name of the country.)

"the world has been around for, like, 7,000 years"

Was this a joke?  Was it pandering to the Federalist Society appointed judges?  Was it the attorney's actual understanding of how old the world is?  

Trying to comment meaningfully on today's world is how I imagine a mosquito swarmed caribou in the midsummer Arctic must feel.  Every bite hurts a little but there are just too many to deal with. 

But I also know we must stand firm.  All the voting fraud legal losses have weakened Trump and his follower, and claimed  We shouldn't assume they have more power than they have.  

That said, I looked up Lisa Blatt to see if she's also a docent at Kentucky's Noah's Ark Encounter?

Sarcasm often floats over people's heads.  I learned quickly that I couldn't use it in class because there were always a few students who took my words literally.  

Not everything is as it appears.  Lisa Blatt is said to be the female attorney who has appeared most frequently before the US Supreme Court.  She's also a former RBG law clerk.  

Here's an interview with Lisa Blatt chair of the Supreme Court and appellate practice at Williams & Connolly, that makes it pretty clear that she knows the world is more than 7000 years old and this might have been an unintentional bit of humor.  

 Is this post worth writing? If I just dealt with one mosquito among millions?  I think so, because the real point is to be careful about jumping to conclusions - which seems to happen with greater frequency as online media rush to be the first to report anything.  And if anyone reads this and checks on an assumption she's about to make, then yes.  

And I'm going to reiterate this theme in an upcoming post, so this is just a seed to get you ready.  

When Will Alaska Supreme Court Issue Its Full Redistricting Ruling? [UPDATED 9/1 and 9/4/22]

 Wait, what?  I thought they ruled a long time ago?

Yes, they made a couple of rulings.  First they issued a decision on March 25, 2022 when the Redistricting Board appealed Superior Court Judge Thomas Matthews' decision. They agreed with him on some things (particularly his calling the Eagle River Senate seats gerrymandering) but not on others (Matthews' ruling against the Board regarding the Skagway appeal and they also ruled against taking Cantwell out of the Denali Borough.  

Then after the Board addressed those issues, their decision was again appealed, Judge Thomas Matthews ruled again, and on May 24, 2022 the Supreme Court removed their temporary stay on Judge Matthews' order to the Board.  

BUT, these were short decisions that briefly summarized what they decided the Board needed to do.  These were NOT decisions that explained their decisions.  

Why do they need to explain their decisions?

The reasoning behind their decisions will help guide future Boards when they make their future redistricting maps.  If they do it clearly, these will be useful guidelines as the next Board grapples with what they can and can't do.  

Some things the Court ought to answer:

1.  Explain what appears to some as a contradiction between past rulings that said everything within a Borough boundary is considered Socio-Economically Integrated and their finding this time that Senate pairings in Anchorage were political gerrymandering.  Those two findings are not necessarily mutually exclusive, but since the Board's attorney's mantra was "everything within a Borough is SEI" the Board majority seemed to think that then they could pair any two contiguous house districts within the Municipality of Anchorage, and it would be fine. (Contiguity being the main legal criterion for a Senate pairing.)  Aren't things like race, economics, political leanings part of Socio-Economic Integration? Why then are factors like race, economics, and political leanings  within a single Municipality  indicators of political gerrymandering?  That needs to be explained.  And maybe the past rulings about everything in a Borough being SEI should be adjusted to reflect the differences within a Borough as populous as the Municipality of Anchorage.  Here's a post I did looking at past rulings about SEI.

[UPDATED Sept 4, 2022:  Maybe this is better focused:  I'd like to see the Court explain how they differentiate the criteria used to determine political gerrymandering and the criteria used for Socio-Economic Integration (SEI).  If Marcum hadn't mentioned that ER would have gotten an extra Senate seat, would the other characteristics of the two paired house districts been irrelevant?  At one point in the Supreme Court hearing there's a discussion between Board attorney Singer and Supreme Court Justice Warren Matthews [not to be confused with Superior Court Judge Thomas Matthews or Board attorney Matthew Singer] on terms like 'communities of interest,' and 'equal protection.'  It would be nice if they could explain clearly the different concepts that Attorney Singer discussed and how the Court distinguishes between the idea that a Borough is SEI, but, as Justice Matthews pointed out, there are differences in communities of interest within the Borough of Anchorage.]

2. Address the issue of geographic contiguity.  While the House districts paired in the revised map were technically contiguous, the borders that were touching were in unpopulated and roadless mountain areas.  While that 'connected' the two districts physically, the communities in those two districts were geographically far apart (relative to the population of Anchorage) and not really sensible political units. 

"Auto-contiguity" came up as a concept.  That 'auto' refers to cars - can you drive from one part of the district to another without leaving the district?  This was an issue in the Valdez/Mat-Su case and in the Eagle River Senate pairings. 

 I understand that being contiguous in large, roadless rural districts will sometimes require those rural Senate seats to have much less ideal connections between communities.  But in urban areas where there is much greater population density, it seems more than reasonable to consider contiguity as a continuum from "more to less," than an "either/or, yes/no," evaluation.  It was clear that the Board majority paired HD 22 and HD 9 with such an unusable border for political reasons.  The Hickel Decision tell us that

"In addition to preventing gerrymandering, the requirement that districts be composed of relatively integrated socio-economic areas helps to ensure that a voter is not denied his or her right to an equally powerful vote."

In urban areas, extreme contiguity such as we had, should also be an indicator of possible gerrymandering,  particularly when much more natural contiguity alternatives are available.  

3.  Explain why the Supreme Court disagreed with Judge Matthews' finding that the Board needed to pay more attention to public testimony in the Skagway case.  Did they disagree with his reasoning on the Board's need to justify why they were making a decision that was contrary to the overwhelming public testimony?  As I understand it, they basically said, it didn't matter since the district met the criteria for a district.  

4.  There was a request from Calista plaintiffs that ANCSA boundaries be found acceptable as local boundaries for the Board to use making their maps.  This makes some sense in situations where those boundaries connect villages (water districts, schools, roads).  But the for-profit Native corporations are just that: profit making corporations that have a lot of power.  We wouldn't want corporations, say like Conoco or Monsanto, to have their own corporate political districts.  I think the Native Corporations have the burden of proof here that they are sufficiently different, in ways that matter to elections, that it would be okay.  

5.  Also on hold has been the decision about whether the Board has to pay attorney fees for the Girdwood plaintiffs. 

Does it matter when the court rules?

1. There are several factors to consider in answering that question. 
1. How urgent is the answer?
1. Elections
1. The Board got out its initial brief decision out in time to have an interim map for the 2022 election.  So they took care of the most urgent issue.
2. The 2024 election is two years away.  Candidates need to decide if they are going to run well before that.  
1. All of the state House districts are settled.  The court has pretty much closed off any changes to them.
2. There are only, potentially, two to four Senate seats that could be changed when the Board meets again to decide to just use the 2022 interim map for the rest of the decade, or if they try to tinker with the Senate seats in north/east Anchorage some more. So, at most, less than a handful of Senators might have their districts changed.  AND the voters in those districts will also be affected.  
2. The Board
1. There are still five Board members who have to meet at least one more time to decide on a permanent map for the rest of the decade.  These are people who, mostly, have full time jobs.  The longer it takes for the decision to come out, the greater the chances someone might no longer be available to serve.
2. Board staff is, as I understand it, down to one person - Peter Torkelson.  He needs to be considering his next job and if something good were offered, he'd probably have lots of reasons to take it.
3. I originally wrote here, last night, that Board space was still rented and they need to dispose of the equipment and furniture they have.  But this morning I got an email saying that the Board had closed down its office at the University Center and most of its furnishings and equipment have been returned to the state surplus office where they got it.  But they do have laptops and data stored at a secure site.  
3. The Court's time limits for decisions
1. Six Months Rule
1. "A salary disbursement may not be issued to a superior court judge until the judge has filed with the state officer designated to issue salary disbursements an affidavit that no matter referred to the judge for opinion or decision has been uncompleted or undecided by the judge for a period of more than six months." 
2. Six Months Rule and the Supreme Court
1. "For the Alaska Supreme Court, the six-month rule starts to run when the case is taken under advisement by the five members of the court. In order to be under advisement, the case must be ready to be decided by the court. Normally, the date the case is taken under advisement is the date of oral argument or the court's conference on the case if no oral argument is requested, although on occasion that date may be different in the event of requested supplemental briefing, reassignment to another justice, or other events that affect the date when the case is ready to be decided by the court. Once the case has been assigned to an individual justice to write the opinion, or in the words of the statute, has been "referred to the justice for opinion” (which cannot happen until the court has discussed the case after oral argument and knows which justices are in the majority), that justice has six months to complete the draft opinion and circulate it for voting by the rest of the court. This is the portion of the opinion that is within the control of the individual justice. Draft opinions are usually issued much more quickly than six months, in most cases within 90 days of the case being taken under advisement. Once all voting is complete by all individual justices, all voting suggestions have been incorporated during the reconciliation process, and any separate opinions have been prepared and voted upon, the draft is ready to be proofread and prepared for publication. About 75% of all Supreme Court appeals are published within nine months from the date they were taken under advisement."
2. The Appellate Clerk added these caveats by email:  "The six-month rule applies in the appellate courts, but perhaps not the way you would think.  The six month clock resets each time a new draft is circulated, including draft concurrences or dissents.  I cannot give you an estimate on when this opinion will be issued."  and in response to my question whether it had been assigned to a judge and to whom:                             "Yes, the case has been assigned, but no, I cannot reveal to whom."

So, when will the ruling come out?

Well, if the clerk can't give me an estimate, it's probably foolhardy for me to try.  But I can at least look at some of the timelines involved.

1.  The Court lifted the stay on Judge Matthews' order on May 24, 2022.  Six months (if this went without the caveats listed above) would be November 24, 2022.  Nine months would be February 24, 2023.  

2.  But we don't know when:

    a.  the Justices met to have their conference on the case

    b.  when they assigned it to a justice to write up

    c.  how many 'resets' the clock had because of the need to rewrite the draft.

Will the Board end up making any changes after the decision comes out?

In the best case scenario the maps won't change any more.  I say this because:

1.  The Court could decide the current map will become the permanent map until 2030.

2.  The Court could give it back to the Board.

3.  There isn't much room to change anything; at most two or three Senate seats

4.  The political gains the Board majority sought with the Eagle River Senate seats are not really within reach anymore, so they would seem to have no motive to change anything, unless it was simply to have the last word.

[UPDATE: September 1, 2022:  Let me add 5 to reiterate that the most important part of the Supreme Court decision will be the reasoning behind the decision.  This is for the next Redistricting Boards 2030, 2040.  They don't want to rush this.  They want it to be as clear as possible.  So I'm guessing they'll take as long as they reasonably can until the justices are comfortable with the language.]

If the Court has decided that the final decision will be to make the interim map, permanent, then they would see no urgency in this case compared to other cases they are working on.  

Or if they give the final decision back to the Board, but with language that makes it practically impossible to do anything but make the interim plan permanent, there would, again, be no urgency.

The only real urgency then would be to let the Board officially wrap up loose ends and close down.  

So, I would guess we won't see a decision until after the six month mark from the last Court ruling  which would be late November,  but probably by the nine month mark in February 2023.  Sort of like having a baby.

Repost: I Think Scalia's Originalism Is Like Intelligent Design Of Constitutional Theories

Given how the Supreme Court has moved front and center in the debate on the future of democracy in the United States, I've been posting some old blog posts about the Constitution.  I've tried to put key points into a bigger context than we see on Twitter or in mainstream journalism.  

Here, I take a critical look at the idea of Originalism.  The previous two posts were put up in 2009.  This one in 2016.  Maybe now people will read these with more interest.  

February 25, 2016

When Scalia died, I realized that I hadn’t seriously examined his ‘originalist’ theory for interpreting the constitution. I knew that he was outspoken, that I disagreed with the most publicized decisions, but also that he was a good off-the-court friend of Ruth Bader Ginsburg, so there had to be more depth than I was seeing.

I was inspired in part by the way Scalia and Ginsburg, so very different in their understanding of the cases which impacted their interpretation of the constitution, liked each other and spent time together outside of the Court.  From an NPR piece:

"They liked to fight things out in good spirit — in fair spirit — not the way we see debates these days on television," NPR's Nina Totenberg recalled on the NPR Politics Podcast. And Ginsburg admitted once that Scalia made her better. One night last year when the two justices appeared onstage for an interview together in Washington, D.C., Ginsburg talked about a time when Scalia showed her his dissenting opinion in a case before she had finished the majority opinion. "I took this dissent, this very spicy dissent and it absolutely ruined my weekend," Ginsburg said. She made some tweaks to her own argument.   [emphasis added]

So I started a blog post looking up ‘originalist’ theory. I thought that while I was inclined to be skeptical, I ought to at least look at it more seriously. I did. I’d like to present here what I’ve found.

Overview of Conclusion

For those who scan posts in 60 seconds or less - my conclusion is that ‘originalism’ has, as one writer put it, good PR, but basically it’s just old wine in a new bottle.  Like creationism, the old strict constructionist theories of law had been abandoned.  This allowed judges to deal with the many kinds of ambiguities in the law, such as conflicting laws, unclear language, situations unanticipated by the law, etc.  A number of canons developed over the years to help judges deal with statutory interpretation. 

In my, albeit brief, review of originalism, I think, at this point, that originalism is something like Intelligent Design which came into being as a religious alternative to evolution, one that smells suspiciously like creationism, but packaged in what its authors hoped would be a more palatable package.   Furthermore originalism has the public relations value of sounding like its fidelity to the constitution is greater than living constitutional theories. 


Ginsburg’s approach, living constitutionalism, follows the traditions of case law to find ways to deal with inconsistencies in law, generalities in the constitution, and modern situations unanticipated by the constitution.  It isn't simply the bias of the judge substituted for the constitution.  Rather, when  the text of the constitution isn't adequate to resolve a case, a judge then uses other long standing practices to resolve the conflicts and determine a decision that is consistent with the constitution.   Living constitutionalists at least acknowledges that it breathes new life into the constitution in order to deal with situations that weren’t and couldn’t have been anticipated 200 years ago when the constitution was written.


 Scalia’s faction, on the other hand, makes a pretense that it is adhering to the real original meaning of the constitution.   I’m left with the conclusion that this originalist claim to some sort of constitutional authenticity is hollow. 

The rest of this post explains why I believe that. I’m not claiming to be a constitutional scholar or to have read all the articles on this, but I’ve read enough that I’m seeing the same arguments repeated, or I’m seeing very esoteric stuff, that may have some relevance to finer points, but doesn't seem to shed light on the basic conflicts. 

Looking At Originalism

There's no way I can go into all the intricacies in a relatively short blog post.  You can read a bit more here  for a fairly light overview (with an unfortunate don't-worry-about-it, all's-well-that-ends-well conclusion).  Originalism is a variation of what used to be called 'strict interpretation' theory which argued that one must read the law strictly and follow what it says.  My administrative law book in the 1970s dismissed this view of the law as hopelessly unusable because

• there were often conflicting laws and you had to have a rationale for picking one over the other; 
• the law may be unclear or insufficiently detailed for a particular situation
• situations arise which the law didn't not anticipate.  Not only would this include absurd outcomes, but also situations resulting from new technologies not anticipated when the law was written.

Even Scalia removed himself from this extreme position (from Wikipedia):

"Antonin Scalia, the justice most identified with the term, once wrote: "I am not a strict constructionist, and no one ought to be", calling the philosophy "a degraded form of textualism that brings the whole philosophy into disrepute". Scalia summarized his textualist approach as follows: 'A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.'"

And who judges reasonable here?

To get more details on originalism and reasonableness, you can see the Wikipedia overview.  It's not the final word (nothing really is) but it gives us a sense of the concept.  And as you read it, you'll see that originalists aren't all of one mind.  For instance

The original intent theory, which holds that interpretation of a written constitution is (or should be) consistent with what was meant by those who drafted and ratified it. This is currently a minority view among originalists. The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be. It is this view with which most originalists, such as Justice Scalia, are associated.

Understanding the mindset of a reasonable person of the late 1780s in the newly independent, but not yet united, colonies is a tricky feat.  Imagining what people thought and understood over 200 years ago is no easier than understanding the people who live in a foreign country today.  That doesn't stop people with little or no knowledge of, say, Afghanistan expounding on what the US should do there anymore than it stops jurists with perhaps a better reading of the 1780's, but no real deep understanding of the mindset of the time.

Furthermore, then, like now, reasonable persons had different beliefs.  (Imagine someone two hundred years hence choosing the reasonable person who would represent today's United States.)  Those who mattered back then were basically white, male, Protestant, landowners. (One delegate from Maryland was Catholic.)  From their view, women rightly needed their husbands'  approval to make most important decisions.  Indians were savages.  Blacks were a lesser form of human, whom their new constitution allowed to be owned by white slaveowners.   Is that really the view that Supreme Court justices today should use to interpret the constitution?

When I wrote that, I was aware that I was extrapolating from some brief overviews and knew that I hadn't read any of the scholarly articles on the subject.  Others might well have addressed my concerns.  So I googled  "definition of reasonable person for originalists."

I found this 2014 BYU Journal of Public Law article by Stephen M. Feldman which shows my thoughts are pretty close to the mark (at least his mark), though the author finds lots more that suggests that those reasonable persons back then would have used far more than the constitution and a 'the reasonable man' to make a decision.

Early judicial opinions and legal treatises reveal an eclectic or pluralist approach to constitutional interpretation; no single interpretive method dominated. Early judges and scholars invoked not only reason, but also the text, constitutional structure, framers’ intentions, original public meaning, and so on. Yet, no judge or scholar maintained that constitutional meaning should be ascertained pursuant to a reasonable-man standard."

And Feldman's comments about the difficulty of understanding the context of the time are similar to what I wrote above:

"The contexts and the contingencies engender, for a historian, the sub-texts, the layers of underlying meaning. But originalists disregard context, contingency, and subtext. Originalists, that is, use history without a “historicist sensibility” or historical understanding. (p. 299)
They want to find a fixed objective meaning when a historical text, such as the Constitution—especially, the Constitution, which forged a nation in a political crucible—is roiling with subtexts." 

And his comments about which reasonable person one would choose are also similar to what I wrote above:

"How did people relate to and interact with others? With family members? With strangers? How did people work? Were they subsistence farmers or involved in commercial transactions? How were they educated? Were they literate? How important were religious beliefs? How about gender and race? Should the researcher limit the investigation to white Protestant propertied males because they were the primary voters? With so many variables—and there are many others—the assiduous researcher would probably conclude that founding-era people were too diverse to be reduced into a hypothetical reasonable person."   (p. 302)]

But if we are going to choose a reasonable man of the period, who better to use than Thomas Jefferson?  Reading critiques of 'originalism' I came across comments he made that are directly relevant here and are called "the Jefferson problem" with originalism.  This is from Society for US Intellectual History (S-USIH):

"In September 1789 Thomas Jefferson wrote to James Madison from Paris that “the question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water.” In making his own answer, Jefferson famously declared that “the earth belongs in usufruct to the living,” that “by the law of nature, one generation is to another as one independant nation to another,” and furthermore that “no society can make a perpetual constitution, or even a perpetual law… Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.'”

Feldman's whole article tends to show much of the originalist 'theory' to be superficial and non-factual.  And he quotes others who see the whole idea of originalist theory as a fiction that allowed for a wide leeway of interpretation.

"In the words of the legal historian Saul Cornell, reasonable-person originalism turns “constitutional interpretation into an act of historical ventriloquism.”   The reasonable person is a dummy who speaks words uttered by the originalist scholar or judge."

[Feb. 25, 1:30pm AKTime:  I did some edits here to remove some accidental repetition.]

Conclusions 

The variations of living constitutionalists don't nail any specific one best way to interpret the constitution.  But they do assume that the framers intended the constitution to be a living document to be interpreted in the context of the times. Surely the fact that the framers created a process to amend the constitution suggests they saw the need for changes as times changed.  Any concept, of course, can be misused by the person applying it.

But it seems that originalism has more built in contradictions than living constitutionalism, which acknowledges that it must fill in where the constitution leaves off.  It's very difficult, for example,  to figure out how, theoretically, an originalist deals with, say, both the document ratified in 1788 which considered slaves as 2/3 of a man for purposes of determining population and gave them no rights, and with the 14th Amendment adopted in 1868.   When they consider the reasonable man of 1788, do they simply cut out that part of his mind that allowed for slaves in 1788 and leave the rest intact?

Is my title metaphor too strong?  Perhaps.  Intelligent design is a religious take on life on earth as opposed to the science of evolution.  Originalism isn't that removed from living constitutionalism.  But the metaphor works, when we think about originalism as a warmed over version of strict constructionism with better public relations as a way to push a philosophy that conservatives believe will work better for them.  The fiction parts include that it  a) is more true to the constitution and b) doesn't allow for bias to color decisions. 



I've been writing, reading, cutting, and pasting, more reading, talking to folks, and I realize this post could go on forever.   As much as I'd like this to be a complete overview with a neatly proven conclusion, this is not a law review, and most of my readers will never get as far as this sentence.   And there is much I haven't read where some of what I say is already said, or corrected.  Think of this more as working notes.  I hope readers who see problems point them out and their sources.

There's lots more to cover in this topic.  I'm going to cut and paste the left overs and if time allows and the spirit is willing, I'll go further in future posts.  I'd like to look at living constitutionalism in more detail and criticisms of it.  I'd also like to look at some cases where Scalia reveals that despite originalism, he himself seems to be susceptible to substituting his bias for the constitution, such as Bush v. Gore.  And I'd also like to pursue a bigger question:  how does an individual decide which constitutional philosophy is best?  Is there some objective 'best?'  Or are there simply different approaches and there is no foolproof way to pick one? That all contain their own strengths and weaknesses?  And, is originalism a sincere effort to better interpret the constitution or was it designed as a cover to move American legal decisions to the right?  And I realize that it needn't be an either/or question.  It could be both. 

Supreme Court Posts Still Very Relevant: Spinning the Supreme Court 1 - Narratives About the Court

 I started a blog post that was a quiz about the Constitution.  At the bottom I was going to link to some older posts about the Supreme Court and the Constitution.  But first I checked the links.  The posts are quite good and give deeper context to the current (and past) debates about the Supreme Court.  Even if you've read these before, they are worth reading again. (I actually wrote these and still find them worth reviewing.)  Since they are longish, I'll do them one at a time.  And no, this isn't just an easy way to put up content on the blog.  I think this post, for example, did a pretty good job of foreseeing things that have come to pass and thus are worth reading again.  

This first one was posted on June 6, 2009!  It looks at what all underlies the debates about Senate approval of Supreme Court nominees. 

June 6, 2009

Spinning the Supreme Court 1 - Narratives About the Court

[This is Part 1 of three posts on the narratives surrounding a Supreme Court nomination.  Part 2 will be on narratives about political strategy and Part 3 will be narratives about race.]

We generally understand Winston Churchill's  “History is written by the victors” to mean that those who prevail, get to select which facts to highlight and how to interpret them as they tell the story of how they (now 'the good') defeated 'the evil ones.'

But who is writing the present? Well, everyone is trying. We are all competing to have our narratives accepted as official reality.

In most situations, there are an enormous number of facts and a smaller number of competing narratives (or theories or stories or interpretations) which try to organize and explain the facts. The difficulty is in figuring out which of the facts are significant and which of the narratives best fit the facts. Our inclination is to make the facts fit our own favored narratives (the stories we want to believe) rather than finding or creating narratives that more accurately explain the facts. When politicians do this - try to create the right narrative for political gain - we call it framing or spin.


So, what are the narratives around the appointment of a Supreme Court Justice these days? In our heads are all the stories we've ever heard or thought of. Outside our skulls is the world where things are happening. We talk about 'facts' as though they are 'true' events. But who filters the facts before we get them? Obviously, events we don't witness first hand, are filtered by others - friends, family, news media, bloggers, etc. And even events we witness are filtered by our brains. Physically we can't take in and record every fact we witness. (Can you describe exactly what the last person you spoke to was wearing, down to the buttons?) And those stories in our heads I mentioned above also filter in and filter out what we think is important. (The buttons probably weren't important and not special enough to have attracted your attention.)

So how do we swim through all the facts and all the spin to find the narratives that most closely mimic what's happening outside of our heads? The best way I know, and it is inadequate, is to try to become conscious of the narratives. Usually they are working without us paying any attention, like doormen deciding which facts and ideas can come in and which can't. So, if you try to be conscious of the narratives you and others are using, then you take a giant step forward in figuring out what is happening.

So what narratives are being used concerning the decision to select and then approve of a Supreme Court Justice?


Constitutional Narrative

The US Constitution, Article II, Section 2 says:

He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. [emphasis added]

Supreme Court Justice Narratives

Here's the generic narrative of a Supreme Court nominee we tend to learn in school:

The President will nominate someone who has performed exceptionally well in the field of law AND whose political leanings, while aligned with those of the president, are also not too distant from those of the population. 

Bonnie Goodman at HNN offers an example of the second part of this narrative in regard to Ruth Bader Ginsburg's confirmation hearings:

Sen. William Cohen (R-Maine) stated bluntly that the nominee's ideology was rightly a matter of concern. But Cohen suggested during the hearings that judicial ideology should be used only to determine if the nominee's philosophy is "so extreme that it might call into question the usual confirmation prerequisites of competency and judicial temperament." [emphasis added]

This issue of 'so extreme' in modern times came up with the nomination of Robert Bork. One narrative says that Democrats made judicial ideology an issue by rejecting Bork. A counter narrative says Republicans made it an issue by nominating a candidate whose ideology was so extreme. (Of course, saying that he was extreme is also a narrative, an interpretation of the facts.)

As you can see this is already getting tricky. How do we know what's extreme? We do have opinion polls, but the law isn't about voting and popularity. The Constitution is supposed to protect the basic rights of all humans even if the majority doesn't support them. Judges are supposed to decide based on the law, even if the decision isn't popular. They get lifetime appointments so they can resist pressures to vote a certain way.

It would seem pretty simple to interpret "he shall nominate, and by and with the Advice and Consent of the Senate . . . Judges of the supreme Court," but we're already finding problems. "Advice and consent" seems pretty straightforward. The President did talk to lots of Senators before nominating Ms. Sotomayor and soon they will be able to consent or not. But what is an appropriate basis for that consent?

That gets us back to the statement above about legal competence and political leanings. While we could debate all this, I won't spend much time on legal competence. That seems the easiest, though, if someone didn't go to Yale or Harvard, can they fit the prevailing narratives of "legally competent"? What about someone who hasn't been a judge already? Etc.

If judges are supposed to make decisions based on the law, why even mention political leanings? Well, because the President and the Senate are all politicians and because the Supreme Court is the third branch of the government. The judges aren't elected, but they are appointed and approved by elected officials. So we have to consider politics.

And also, 'political leanings' is another way to allude to the kinds of narratives people have in their heads. These political leanings are predispositions to consider some things more important than others - the right to own a gun as more important than the possibility of misusing the gun, or upholding international law about torture as more important than potential security risks.

Above I offered a generic narrative of a supreme court nominee. Let's expand that now from just the nominee's characteristics to how the nominee should behave if approved.


There are two well articulated narratives about how a Supreme Court Justice should behave.  Wikipedia, in a post on Judicial Activism offers: [The Wikipedia entry since 2009 appears to have changed quite a bit.  This is from the 2009 version and you can see the newer stuff at the link if you wish.]

Judicial activism is a philosophy advocating that judges should reach beyond the United States Constitution to achieve results that are consistent with contemporary conditions and values. Most often, it is associated with (modern) liberalism that believes in broad interpretation of the Constitution which can then be applied to specific issues.

Judicial restraint is the counterpart to judicial activism and is advocated by thsoe [sic] who believe that democracy will thrive if judges defer to the democratic process and stay out of policy debates. So, judicial activism is not necessarily an ideological concept. Some trace the history of judicial activism back to the loose constructionist approach of Alexander Hamilton, who believed that broad wording of the Constitution was meant to enable, not inhibit, various government actions.[1]

But this Wikipedia article is marked with warnings such as:

• Its neutrality is disputed. Tagged since December 2008.
• Its neutrality or factuality may be compromised by weasel words. Tagged since November 2007.
• It is in need of attention from an expert on the subject. WikiProject Law or the Law Portal may be able to help recruit one. Tagged since May 2009.
• It may contain inappropriate or misinterpreted citations which do not verify the text. Tagged since December 2008.

So we even have to consider that Wikipedia entries are also influenced by the narratives of their writers.

Adam Cohen, in a recent NY Times editorial, uses Britain's Supreme Court of Justice's decision that a Pringle is indeed a potato chip (and thus Proctor & Gamble owes $160 million in taxes) to give his own interpretation of activist judges:

Conservatives like to insist that their judges are strict constructionists, giving the Constitution and statutes their precise meaning and no more, while judges like Ms. Sotomayor are activists. But there is no magic right way to interpret terms like “free speech” or “due process” — or potato chip. Nor is either ideological camp wholly strict or wholly activist. Liberal judges tend to be expansive about things like equal protection, while conservatives read more into ones like “the right to bear arms.”

(Note that Cohen calls conservatives "strict constructionists" a term that seems more radical than Wikipedia's term "Judicial Restraint.")

(If someone were really a strict constructionist, could one argue that since the Constitution says "he" for President, that women can't be President?)

Let's try again for a narrative about a good nominee:

The nominee would be a person who would assume office with the goal of interpreting cases according to the law. Where the law is not completely clear, there will be some interpretation that is influenced by the new justice's life experiences. Candidates should not be coming to the court with the goal to change the direction of the court and the law. However, some cases raise issues not clearly addressed by the law or the Constitution. New technology raises questions that were often not addressed by the Constitution. Judges then must interpret how the words of the Constitution should be applied to, say, surveillance of email. Essentially new law must be created.

My 'neutral' (some might dispute its neutrality) narrative above tends to say that when possible (if the laws and Constitution are clear about the situation in the case before the court), judges should practice judicial restraint. But when the case isn't clear cut, they will need to be a bit activist. They will be required to use their own narratives, to interpret the law or Constitution. Of course if all the justices have the same narratives, they will come to similar conclusions.

And with eight males and one female, to the extent that males and females experience the world differently, we can see that female (slightly over half the US population is female) narratives are somewhat lacking on the Supreme Court.

I'm not an attorney. I don't claim any special expertise in this process of choosing a Supreme Court Justice. But I did want to step back a bit from the rhetoric and focus on the narratives that are being used in the hope that others might begin more easily to recognize them for what they are: interpretations of reality, but NOT reality.

In Part 2 I'll look at narratives about political strategies for approving or rejecting Supreme Court nominees, which will include how actors use narratives to support and oppose candidates. In Part 3 I'll look at narratives around race and Supreme Court nominees.

AK Redistricting Board: Attorney Fees Decision Deferred Until After Court's Full Redistricting Opinion Comes Out - UPDATED

Alaska's Redistricting process for 2020 would appear to be pretty much over.  All that's left to close things out (or rekindle the process) is the Supreme Court's full opinion  explaining their reasoning for saying pairing Eagle River with the southern Hillside and pairing JBER with Chugiak were political gerrymandering.  That opinion could either conclude that the interim plan that is being used for 2022 elections will be the permanent plan for the rest of the decade or the Board can have the map back to do some last Senate pairing decisions.  

There really is very little the Board can do in the way of additional changes that would comply with the Court's orders up til now.  There isn't anything to really play with after the two Eagle River/Chugiak districts are paired.  They could change how JBER (after being severed from Chugiak) is paired which would cause  one or two more Senate districts to be redone.  But why do that?  It won't benefit the Board majority's interest in helping Republicans and it means residents and candidates in those districts have to make yet another adjustment for no real benefit.  

No word on when that decision will come out.  The longer it takes, the likelier it is that 2022 will be the permanent plan.  Why? 

The Board and staff have to reconvene if they get this back.  They already lost most of the staff.  I just called the remaining staffer's (Peter Torkelson) phone and it's no longer a working number.   [UPDATE  7/20/22:  Peter Torkelson let me know he is still working for the Board.  His email is still good.]

Potential candidates are already looking ahead to 2024.  But, of course, any changes would be limited to two, or at most, three Senate seats.  House seats won't be affected.  

But, on the Supreme Court docket, going back to June, is a request from the Girdwood plaintiffs for attorney fees from the Redistricting Board.  The Board, of course, objects.  The last event/item on the docket is from June 23, 2022.

"On consideration of the motion of Ken Waugh, Louis Theiss, and JennfierWingard for attorney’s fees filed on 6/6/2022, and the opposition filed by the Alaska Redistricting Board on 6/20/2022,

IT IS ORDERED: This motion is STAYED until the opinion in this matter isissued.

Entered at the direction of an individual justice."

I'd note that only the orders from the court are available on the public docket.  

At a traditional news medium, this is the kind of thing they report on a slow news day.  On a personal blog, it's what you put up when you are trying to catch up and don't have time for a more complicated post.  

 

Anchorage Rallies In Protest of Supreme Court Election Decision

This afternoon, people gathered at the Parkstrip and marched to the Anchorage Town Square to protest Friday's Supreme Court decision on abortion.  My rough estimate of the crowd is 400-600.  

Observations:  The crowd was younger than the demonstration on May 8, 2022 when the decision was leaked.  The organizers also talked a lot about voting this time, which was missing at the previous demonstration.  Including voting no on whether Alaska should have a constitutional convention.  (The constitution requires such a vote every ten years.)  Conservatives want such a convention to do (at least) two things:

1. Remove the right to privacy in the constitution 
2. Change how judges are selected in Alaska (by a non-partisan commission which evaluates people applying for judgeships by reviewing surveys of judges, attorneys, juries, court employees, and court watchers.  Top candidates are passed on to the Governor to choose from.

During the 1960's the protesting against the Vietnam war was invigorated by the fact that all 18 year old men had to register for the draft and stood a decent chance of being sent to Vietnam to fight.  All their friends and family had a very personal interest in the war ending.  

Today's young folks have been give an equally important stake in fighting Dobbs v. Jackson's Women's Health Organization.  This time it's all women of child bearing age who are on the line, but since women don't need an abortion unless a man has been involved, men too have a vital stake.  And if the Vietnam War protests are any predictor, the people fighting to make abortions legal again aren't going away. 

Here are some photos from today's protest.

1927 Buck v. Bell

Facts of the case

Carrie Buck was a "feeble minded woman" who was committed to a state mental institution. Her condition had been present in her family for the last three generations. A Virginia law allowed for the sexual sterilization of inmates of institutions to promote the "health of the patient and the welfare of society." Before the procedure could be performed, however, a hearing was required to determine whether or not the operation was a wise thing to do.

Question

Did the Virginia statute which authorized sterilization deny Buck the right to due process of the law and the equal protection of the laws as protected by the Fourteenth Amendment?

Conclusion

The Court found that the statute did not violate the Constitution. Justice Holmes made clear that Buck's challenge was not upon the medical procedure involved but on the process of the substantive law. Since sterilization could not occur until a proper hearing had occurred (at which the patient and a guardian could be present) and after the Circuit Court of the County and the Supreme Court of Appeals had reviewed the case, if so requested by the patient. Only after "months of observation" could the operation take place. That was enough to satisfy the Court that there was no Constitutional violation. Citing the best interests of the state, Justice Holmes affirmed the value of a law like Virginia's in order to prevent the nation from "being swamped with incompetence . . . Three generations of imbeciles are enough."

Griswold v. Connecticut, 381 U.S. 479 (1965)

Argued March 29-30, 1965

Decided June 7, 1965

Syllabus

Appellants, the Executive Director of the Planned Parenthood League of Connecticut, and its medical director, a licensed physician, were convicted as accessories for giving married persons information and medical advice on how to prevent conception and, following examination, prescribing a contraceptive device or material for the wife's use. A Connecticut statute makes it a crime for any person to use any drug or article to prevent conception. Appellants claimed that the accessory statute, as applied, violated the Fourteenth Amendment. An intermediate appellate court and the State's highest court affirmed the judgment.

Held:

1. Appellants have standing to assert the constitutional rights of the married people. Tileston v. Ullman, 318 U. S. 44, distinguished. P. 381 U. S. 481.

2. The Connecticut statute forbidding use of contraceptives violates the right of marital privacy which is within the penumbra of specific guarantees of the Bill of Rights. Pp. 381 U. S. 481-486.

Eisenstadt v. Baird

DECIDED  Mar 22, 1972

Facts of the case

William Baird gave away Emko Vaginal Foam to a woman following his Boston University lecture on birth control and over-population. Massachusetts charged Baird with a felony, to distribute contraceptives to unmarried men or women. Under the law, only married couples could obtain contraceptives; only registered doctors or pharmacists could provide them. Baird was not an authorized distributor of contraceptives.

Question

Did the Massachusetts law violate the right to privacy acknowledged in Griswold v. Connecticut and protected from state intrusion by the Fourteenth Amendment?

Conclusion

6–1 DECISION 

MAJORITY OPINION BY WILLIAM J. BRENNAN, JR.

In a 6-to-1 decision, the Court struck down the Massachusetts law but not on privacy grounds. The Court held that the law's distinction between single and married individuals failed to satisfy the "rational basis test" of the Fourteenth Amendment's Equal Protection Clause. Married couples were entitled to contraception under the Court's Griswold decision. Withholding that right to single persons without a rational basis proved the fatal flaw. Thus, the Court did not have to rely on Griswold to invalidate the Massachusetts statute. "If the right of privacy means anything, wrote Justice William J. Brennan, Jr. for the majority, "it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."