Always strive to learn something useful. --Sophocles

Jack Smith has been a busy boy!

Since the Supreme Court made their rather partisan ruling that the President is immune to acts being charged as crimes while he's sitting in office, Smith empaneled a new grand jury, represented all the evidence that he had against the weird former president, excluded specific references to things that could be covered by the SCOTUS shield, and the grand jury returned the same four charges that he had before!

The weird guy is of course complaining that it is election interference, and that it's illegal to file charges so close to the election, etc.

It's hard to say how this will play out, obviously it will not come to trial before the election, but it's guaranteed to make the weird guy sweat some more.

Along with these charges being refiled, Smith is refiling the top secret documents case in the district that encompasses Georgia. I'm sure that will also be carefully edited to remove reference to the weird guy's previous job to avoid the SCOTUS Shield.

https://www.bbc.com/news/articles/czdpq4en1vvo

"I believe that no one is above the law under our system and that includes the president."
-- now-Chief Justice John Roberts in his 2005 confirmation hearing

"No person in this country, no matter how high or powerful, is above the law."
-- Justice Samuel Alito, in his 2006 confirmation hearing

"We're all equal before the law...The foundation of our Constitution was that... the presidency would not be a monarchy...[T]he president is not above the law, no one is above the law."
-- Justice Brett Kavanaugh to the Senate in 2018

Supreme Court justices are not immune from impeachment by Congress. I'm just not certain if it falls under high crimes and misdemeanors.

A political watch group, C.R.E.W., sued in Colorado to bar Trump from the ballot under Article 14, Section 3 of the Constitution which bars people from holding elected office if they gave aid or succor to seditionists after swearing an oath to uphold the Constitution. Which Trump did. He swore the oath of office when he became President, and the aid and succor is pretty self-evident.

And the Colorado State Supreme Court ruled in favor of CREW, 4-3. The ruling is temporarily stayed until it can be appealed to the U.S. Supreme Court, which Trump's posse immediately pledged to do.

And if the Supreme Court upholds the Colorado ruling, it's game over. He'll still face the 4+ law suits, but that's the end of his political career.

Fingers crossed!

https://www.rollingstone.com/politics/politics-news/donald-trump-colorado-disqualified-2024-ballot-supreme-court-1234932715/

Of course the big news is someone got indicted on a few counts of mishandling documents, but that's hardly worth talking about when we can discuss dog chew toys and nursing homes!

Jack Daniels sued a toy maker that makes parody dog chew toys, including one that largely duplicated the appearance of the very famous Jack Daniels' whiskey bottle, calling it Bad Spaniels. Jack Daniels makes lots of merchandise and claimed that the toy diminished their brand. A lower court ruled in favor of the toy maker, claiming that it was their First Amendment right under protected parody ruling. The Supreme Court, in a surprisingly unanimous ruling, said 'Nuh uh!' and overturned the lower court, citing Aqua's Barbie Girl song. I'm not kidding. Barbie Girl was quoted IN COURT.

The nursing home ruling is really good! The family of a patient sued the nursing home that a husband was in, saying that they doped him up on psychotropics, making him unable to walk or feed himself, then tried to transfer him to a state facility. The home claimed that the family couldn't sue to enforce his rights, the court ruled 7-2 'Uh-huh, they can', with - guess who? - Thomas and Alito dissenting. It's the last few paragraphs of the Jack Daniels article.

https://www.npr.org/2023/06/08/1181012952/supreme-court-jack-daniels-decision

Here's a list of possible judges who appear to be well-qualified to be nominated to the Supreme Court. They run the gamut from liberal to centrist to conservative, thus it's possible for Obama to put someone forth that there's no good reason not to approve them. Which would put incredible strain on the Republicans running the Senate to justify leaving a position on the Supreme Court open for an extended period of time. There has been bluster about 'there's never been a justice appointed during an election year!' which is completely bogus, it happened about 30 years ago during Reagan's reign. But when it comes to the Supreme Court, normally nominees are approved or shot-down within about two months. So if the Senate doesn't jump on approval promptly, it will further reinforce their image of an obstructionist, do-nothing, party. And doing that, right now, will jeopardize a few seats in the upcoming election, which could damage their chokehold on the Senate and thus Congress. And the entirety of the House is up for election, as it is every two years, so it's possible that this could be the catalyst to flipping the House.

I think Obama's best chance of damaging the Senate is to put forth a moderate that they should have no significant reason to delay approval, just to prove their obstinate core.


The interesting thing about Scalia's death is what it does to cases that they've already decided but have not been published -- IT REMOVES HIS VOTE FROM THE TALLY. So any case that has been heard that had been decided by a 5-4 conservative vote are now likely 4-4 ties! It isn't a situation of ties go to the defender, but ties send it back to the lower court for reconsideration. After a deciding vote is taken, the Chief Justice assigns writing the decision to a justice, and it can be assigned to themselves. Anyone can write a supporting or dissenting opinion on their own as part of the record. And until the document is published, justices can change their vote! This makes a dissenting opinion in to a supporting opinion, and vice-versa.

And apparently this has happened, possibly as recently as the decision that supported the Affordable Care Act.

So the Senate has a real dilemma. If they delay a decision on what the public perceives as a well-qualified nominee just to be obstinate in hopes that a Republican, but not Trump, becomes President in November. Which means there's a vacancy on the Supreme Court of unheralded length, and also makes them look really bad. Or do they approve said nominee who may or may not toe the line of Republican ideology, whatever that happens to be at the moment.

Mitch McConnell has a lot to think about right now.

Another thing to consider is Justice Clarence Thomas. The observation is that Thomas always looked to Scalia for which way to vote. He's said about two sentences of dialog in the last decade in the Court, we have no way of knowing how vocal he is in private discussions at the Court. So what's he going to do? He can retire at any time, only time will tell if he starts asking questions as cases are heard, which could indicate that he can actually think for himself. Or he could remain the silent stoic and grab a new set of coattails to cling to.


I think the most interesting thing is that some justices, over the years, have proven that they're critical thinkers and not political ideologues. Sandra Day O'Conner was one, some of her votes were conservative-leaning and some were liberal. We've seen several decisions that stunned the punditocracy, including a conservative proving themselves to be a moderate in the Affordable Care Act decision.

Only time will tell.

There's a lot going on here, which is why I didn't post about it as soon as it became news. First, the good news. The police must now usually get a search warrant to search the phone of a person whom they arrest. There are a couple of exceptions, such as fear of evidence being remotely deleted or exigent circumstances, like if you're a suspect in a kidnapping. Most of the time those exceptions won't apply.

But that doesn't mean your data is sacrosanct. Consider what's going on in Florida, where stingray devices are being used to impersonate cell towers and are being used with impunity, usually without getting a search warrant. Police can still subpoena data from your cell provider, then again, at that point they've gone through legal channels and theoretically demonstrated probable cause. It's possible that at that point that searching your phone is irrelevant and just done for form's sake.

Still, it is a good thing. It's good to know that the Supremes recognize that cell phones, and smart phones in particular, are incredibly personal and hold a huge amount of sensitive information.

http://www.npr.org/blogs/thetwo-way/2014/06/25/325497536/high-court-says-police-need-a-warrant-for-most-cellphone-searches


So what happens if you are stopped and/or arrested and police try to search your phone without a warrant? Let's face it, there's not much that you can do to stop it, the threat or use of physical force would be really stupid at that point. The two best things to do is to (A) lock your phone before your arrest if you can, and (B) loudly proclaim as often as possible, preferably in front of witnesses, "I do not consent to that search." Even if police ask you a yes/no question whether they can search your phone, reply with 'I do not consent'. They're good at asking double-negative questions, such as 'You don't mind if I search your phone, do you?' How do you answer that? Answering either yes or no can be construed as consent, as can not answering. So answer 'I do not consent to this search.' Same thing goes with your car, if police want to search your car you should not consent and force them to get a proper warrant with proof of probable cause.

http://www.dailydot.com/politics/stop-police-phone-search-warrant-warrantless-illegal/


Here's some info on exceptions that can allow police to search your phone:
http://fivethirtyeight.com/datalab/police-can-get-access-to-your-cellphone-data-even-after-the-supreme-court-ruling/


But if there's one thing that this case has confirmed. Something which has been demonstrated time and again, is that the Supreme Court is very weak when it comes to understanding technology. One Justice was baffled that some people might carry more than one cell phone. I did that for work when I was on-call, until I asked 'Can I just forward the on-call phone to my cell?' Apparently no one, including management had thought of that. One Justice while hearing a case about patents and Ebay, suggested that he could program something like Ebay given a weekend, because it was just pictures and prices.

The Supreme Court didn't have a photocopier for 50 years after its invention. They don't use email much, and only do audio recordings of their public deliberations. They are techno-Luddites.

Part of the problem is that they are trained to reason via analogy, and that process is breaking down big-time. From the article: "... In past arguments, computers were analogized to typewriters, phone books and calculators. Video games were compared to films, comic books and Grimm’s fairy tales. Text messages were analogized to letters to the editor. A risk-hedging method was compared to horse-training and the alphabet. EBay was likened to a Ferris wheel, and also to the process of introducing a baker to a grocer. The list goes on. Scary stuff.

http://www.salon.com/2014/06/28/the_supreme_courts_baffling_tech_illiteracy_is_becoming_a_big_problem/

Interesting story. Guy steals woman's purse, then begins stalking her. She recognizes his car in the neighborhood, tells a cop, they get a district attorney to issue a subpoena to the phone company for a pen recording on the guy's phone line. Snatcher is arrested, sentenced to a decade in prison. Appeals ultimately to the Supreme Court that the phone calls were protected info under the 4th Amendment, SCOTUS says it ain't and that any records transmitted to a business are not protected.

Thus all Americans and most people around the world get spied upon wholesale by the United States government.

http://www.wired.com/threatlevel/2013/10/nsa-smith-purse-snatching/

YES! And a unanimous ruling! It's always been understood that things in nature cannot be patented, I don't know why the patent office didn't reject applications like this from the beginning. But it's well-known that the U.S. patent office is underfunded and understaffed and unable to keep up with the rapid rate of change in new tech fields.

http://yro.slashdot.org/story/13/06/13/1550225/supreme-court-no-patents-for-natural-dna-sequences

"It's well known that Roberts, unfortunately for him, has suffered from epileptic seizures. Therefore he has been on medication. Neurologists will tell you that medication used for seizure disorders, such as epilepsy, can introduce mental slowing, forgetfulness and other cognitive problems. And if you look at Roberts' writings you can see the cognitive disassociation in what he is saying."
—radio host Michael Savage

And am looking forward to seeing more excuse-making why it should be repealed.

And for another quote:

"Just because a couple of people on the Supreme Court declare something to be 'constitutional' does not make it so."
—Rand Paul

Sorry, the core of the job of the SCOTUS means that if a majority decides it is constitutional, it's constitutional until the law is rewritten or repealed.

"In all, five justices said physically attaching the GPS device to the underside of a car amounted to a search requiring a warrant. Four justices, however, said the prolonged GPS surveillance in this case — a month — amounted to a search requiring a warrant, but was silent on whether GPS monitoring for shorter periods would require a warrant. All nine justices agreed to toss a District of Columbia drug dealer’s life sentence who was the subject of a warrantless, 28-day surveillance via GPS."

I'm curious if they threw out the drug dealer's case entirely or just the sentence, and whether or not it can be re-tried again without the GPS evidence.

Aside from the privacy implications, I think the thing that bothers me the most is technology replacing "good ol' fashioned police work." I was on the jury for one trial, and it was a drug bust. Guy was charged with three counts of selling marijuana to a minor, one count of selling. It was all to the same informant (whom the police had busted and turned to get at the defendant), but the informant turned 18 during the scope of the investigation. The prosecution had fingerprints, photographs, witness testimony, etc., and we convicted the defendant on three of the four counts. Of course, the whole case was screwy from the start: the lead detective's sister (caucasian) was dating the defendant (black) in Morman Mesa. We the jury wondered if the defendant would have been pursued quite so vigorously if he hadn't been involved with the detective's sister.

http://www.wired.com/threatlevel/2012/01/scotus-gps-ruling/