Monday At The Bar. Misconstruing the law

If you listened to the weekend news shows you are now fully up to speed on all the left of center angst, or feigned angst, over the new anti-abortion bill in Texas.

The speed at which this went from law to politicized whipping boy for the left is stunning, if predictable.  There were all sorts of anguished cries that the United States Supreme Court, in association with it, has done away with Roe v. Wade and that this will be a disaster.  

Well, let's look at what actually happened.

The Texas Law

You can read the bill online, like most laws.  I'd repost it here, but it's really long

Texas Statute,

The law passed by the legislature of Texas prohibits abortions after six weeks.  It's a "heartbeat" law, of which there are now several in the US, which takes the position that once a heartbeat is detected, and taking the position that this occurs no later than six weeks, the fetus should be protected at law.

That''s really about it.

Now, much inaccurate reporting has been suggesting that private citizens can prosecute the law and that its private remedies are wholly novel.

Neither of those things is true.

Here's the text that liberals have lashed onto.

Sec. 171.208.  CIVIL LIABILITY FOR VIOLATION OR AIDING OR
	ABETTING VIOLATION. (a)  Any person, other than an officer or
	employee of a state or local governmental entity in this state, may
	bring a civil action against any person who:
	(1)  performs or induces an abortion in violation of
	this subchapter;
	(2)  knowingly engages in conduct that aids or abets
	the performance or inducement of an abortion, including paying for
	or reimbursing the costs of an abortion through insurance or
	otherwise, if the abortion is performed or induced in violation of
	this subchapter, regardless of whether the person knew or should
	have known that the abortion would be performed or induced in
	violation of this subchapter; or
	(3)  intends to engage in the conduct described by
	Subdivision (1) or (2).
	(b)  If a claimant prevails in an action brought under this
	section, the court shall award:
	(1)  injunctive relief sufficient to prevent the
	defendant from violating this subchapter or engaging in acts that
	aid or abet violations of this subchapter;
	(2)  statutory damages in an amount of not less than
	$10,000 for each abortion that the defendant performed or induced
	in violation of this subchapter, and for each abortion performed or
	induced in violation of this subchapter that the defendant aided or
	abetted; and
	(3)  costs and attorney's fees.
	(c)  Notwithstanding Subsection (b), a court may not award
	relief under this section in response to a violation of Subsection
	(a)(1) or (2) if the defendant demonstrates that the defendant
	previously paid the full amount of statutory damages under
	Subsection (b)(2) in a previous action for that particular abortion
	performed or induced in violation of this subchapter, or for the
	particular conduct that aided or abetted an abortion performed or
	induced in violation of this subchapter.
	(d)  Notwithstanding Chapter 16, Civil Practice and Remedies
	Code, or any other law, a person may bring an action under this
	section not later than the fourth anniversary of the date the cause
	of action accrues.
	(e)  Notwithstanding any other law, the following are not a
	defense to an action brought under this section:
	(1)  ignorance or mistake of law;
	(2)  a defendant's belief that the requirements of this
	subchapter are unconstitutional or were unconstitutional;
	(3)  a defendant's reliance on any court decision that
	has been overruled on appeal or by a subsequent court, even if that
	court decision had not been overruled when the defendant engaged in
	conduct that violates this subchapter;
	(4)  a defendant's reliance on any state or federal
	court decision that is not binding on the court in which the action
	has been brought;
	(5)  non-mutual issue preclusion or non-mutual claim
	preclusion;
	(6)  the consent of the unborn child's mother to the
	abortion; or
	(7)  any claim that the enforcement of this subchapter
	or the imposition of civil liability against the defendant will
	violate the constitutional rights of third parties, except as
	provided by Section 171.209.
	(f)  It is an affirmative defense if:
	(1)  a person sued under Subsection (a)(2) reasonably
	believed, after conducting a reasonable investigation, that the
	physician performing or inducing the abortion had complied or would
	comply with this subchapter; or
	(2)  a person sued under Subsection (a)(3) reasonably
	believed, after conducting a reasonable investigation, that the
	physician performing or inducing the abortion will comply with this
	subchapter.
	(f-1)  The defendant has the burden of proving an affirmative
	defense under Subsection (f)(1) or (2) by a preponderance of the
	evidence.
	(g)  This section may not be construed to impose liability on
	any speech or conduct protected by the First Amendment of the United
	States Constitution, as made applicable to the states through the
	United States Supreme Court's interpretation of the Fourteenth
	Amendment of the United States Constitution, or by Section 8,
	Article I, Texas Constitution.
	(h)  Notwithstanding any other law, this state, a state
	official, or a district or county attorney may not intervene in an
	action brought under this section.  This subsection does not
	prohibit a person described by this subsection from filing an
	amicus curiae brief in the action.
	(i)  Notwithstanding any other law, a court may not award
	costs or attorney's fees under the Texas Rules of Civil Procedure or
	any other rule adopted by the supreme court under Section 22.004,
	Government Code, to a defendant in an action brought under this
	section.
	(j)  Notwithstanding any other law, a civil action under this
	section may not be brought by a person who impregnated the abortion
	patient through an act of rape, sexual assault, incest, or any other
	act prohibited by Sections 22.011, 22.021, or 25.02, Penal Code.
	Sec. 171.209.  CIVIL LIABILITY:  UNDUE BURDEN DEFENSE
	LIMITATIONS.  (a)  A defendant against whom an action is brought
	under Section 171.208 does not have standing to assert the rights of
	women seeking an abortion as a defense to liability under that
	section unless:
	(1)  the United States Supreme Court holds that the
	courts of this state must confer standing on that defendant to
	assert the third-party rights of women seeking an abortion in state
	court as a matter of federal constitutional law; or
	(2)  the defendant has standing to assert the rights of
	women seeking an abortion under the tests for third-party standing
	established by the United States Supreme Court.
	(b)  A defendant in an action brought under Section 171.208
	may assert an affirmative defense to liability under this section
	if:
	(1)  the defendant has standing to assert the
	third-party rights of a woman or group of women seeking an abortion
	in accordance with Subsection (a); and
	(2)  the defendant demonstrates that the relief sought
	by the claimant will impose an undue burden on that woman or that
	group of women seeking an abortion.
	(c)  A court may not find an undue burden under Subsection
	(b) unless the defendant introduces evidence proving that:
	(1)  an award of relief will prevent a woman or a group
	of women from obtaining an abortion; or
	(2)  an award of relief will place a substantial
	obstacle in the path of a woman or a group of women who are seeking
	an abortion.
	(d)  A defendant may not establish an undue burden under this
	section by:
	(1)  merely demonstrating that an award of relief will
	prevent women from obtaining support or assistance, financial or
	otherwise, from others in their effort to obtain an abortion; or
	(2)  arguing or attempting to demonstrate that an award
	of relief against other defendants or other potential defendants
	will impose an undue burden on women seeking an abortion.
	(e)  The affirmative defense under Subsection (b) is not
	available if the United States Supreme Court overrules Roe v. Wade,
	410 U.S. 113 (1973) or Planned Parenthood v. Casey, 505 U.S. 833
	(1992), regardless of whether the conduct on which the cause of
	action is based under Section 171.208 occurred before the Supreme
	Court overruled either of those decisions.
	(f)  Nothing in this section shall in any way limit or
	preclude a defendant from asserting the defendant's personal
	constitutional rights as a defense to liability under Section
	171.208, and a court may not award relief under Section 171.208 if
	the conduct for which the defendant has been sued was an exercise of
	state or federal constitutional rights that personally belong to
	the defendant.

It allows, as can be seen, for a private cause of action against those violating the law.  Super novel, right?

Well, not so much, although the dissents in the Supreme Court ruling lashed on to that.

Lots of Federal laws work the same way, which is why environmental groups, for instance, constantly file suit against Western states in regard to questions involving endangered or threatened animals, or on such things as oil and gas and mining endeavors on Federal lands.  There's really nothing novel here.

Indeed, one of the liberal talking points has been "what if leberal states passed such laws regarding guns?".  Well, gun manufacturers are already being sued by private individuals, so the point has, well, not much of a point.

It's somewhat of a point.  It is an unusual law. But maybe now as unusual as made out.  Moreover, if people don't like the private cause of action aspect of it, perhaps they ought to also be willing to get rid of it in connection with NEPA or the ESA.

The Supreme Court Petition

So, a petition was filed with the Supreme Court.  What happened there?

Well, to listen to the news, you'd believe the Court struct down Roe v. Wade.  I think it should strke Roe down, and I think it will, but the Court didn't actually do that here at all.  Here's the Court's decision:

SUPREME COURT OF THE UNITED STATES No. 21A24 WHOLE WOMAN’S HEALTH ET AL. v. AUSTIN REEVE JACKSON, JUDGE, ET AL. ON APPLICATION FOR INJUNCTIVE RELIEF [September 1, 2021] 

The application for injunctive relief or, in the alternative, to vacate stays of the district court proceedings presented to JUSTICE ALITO and by him referred to the Court is denied. To prevail in an application for a stay or an injunction, an applicant must carry the burden of making a “strong showing” that it is “likely to succeed on the merits,” that it will be “irreparably injured absent a stay,” that the balance of the equities favors it, and that a stay is consistent with the public interest. Nken v. Holder, 556 U. S. 418, 434 (2009); Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 66 (2020) (citing Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 20 (2008)). The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. For example, federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves. California v. Texas, 593 U. S. ___, ___ (2021) (slip op., at 8). And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention. Clapper v. Amnesty Int’l USA, 568 U. S. 398, 409 (2013) (“threatened injury must be certainly impending” (citation omitted)). The State has represented that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly. Nor is it clear whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law. See Ex parte Young, 209 U. S. 123, 163 (1908). Finally, the sole private-citizen respondent before us has filed an affidavit stating that he has no present intention to enforce the law. In light of such issues, we cannot say the applicants have met their burden to prevail in an injunction or stay application. In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts. 

CHIEF JUSTICE ROBERTS, with whom JUSTICE BREYER and JUSTICE KAGAN join, dissenting. The statutory scheme before the Court is not only unusual, but unprecedented. The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime. 

The State defendants argue that they cannot be restrained from enforcing their rules because they do not enforce them in the first place. I would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner. Defendants argue that existing doctrines preclude judicial intervention, and they may be correct. See California v. Texas, 593 U. S. ___, ___ (2021) (slip op., at 8). But the con-sequences of approving the state action, both in this particular case and as a model for action in other areas, counsel at least preliminary judicial consideration before the program devised by the State takes effect. 

We are at this point asked to resolve these novel questions—at least preliminarily—in the first instance, in the course of two days, without the benefit of consideration by the District Court or Court of Appeals. We are also asked to do so without ordinary merits briefing and without oral argument. These questions are particularly difficult, including for example whether the exception to sovereign immunity recognized in Ex parte Young, 209 U. S. 123 (1908), should extend to state court judges in circumstances such as these. 

I would accordingly preclude enforcement of S. B. 8 by the respondents to afford the District Court and the Court of Appeals the opportunity to consider the propriety of judicial action and preliminary relief pending consideration of the plaintiffs’ claims. 

Although the Court denies the applicants’ request for emergency relief today, the Court’s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue. But although the Court does not address the constitutionality of this law, it can of course promptly do so when that question is properly presented. At such time the question could be decided after full briefing and oral argument, with consideration of whether interim relief is appropriate should enforcement of the law be allowed below.

JUSTICE BREYER, with whom JUSTICE SOTOMAYOR and JUSTICE KAGAN join, dissenting. 

The procedural posture of this case leads a majority of this Court to deny the applicants’ request for provisional relief. In my view, however, we should grant that request. I agree with THE CHIEF JUSTICE, JUSTICE SOTOMAYOR, and JUSTICE KAGAN. Texas’s law delegates to private individuals the power to prevent a woman from obtaining an abortion during the first stage of pregnancy. But a woman has a federal constitutional right to obtain an abortion during that first stage. Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 846 (1992); Roe v. Wade, 410 U. S. 113, 164 (1973). And a “State cannot delegate . . . a veto power [over the right to obtain an abortion] which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy.” Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 69 (1976) (internal quotation marks omitted). Indeed, we have made clear that “since the State cannot regulate or proscribe abortion during the first stage . . . the State cannot delegate authority to any particular person . . . to prevent abortion during that same period.” Ibid. The applicants persuasively argue that Texas’s law does precisely that. 

The very bringing into effect of Texas’s law may well threaten the applicants with imminent and serious harm. One of the clinic applicants has stated on its website that  “[d]ue to Texas’ SB 8 law,” it is “unable to provide abortion procedures at this time.” Planned Parenthood South Texas, https://www.plannedparenthood.org/planned-parenthoodsouth-texas. And the applicants, with supporting affidavits, claim that clinics will be unable to run the financial and other risks that come from waiting for a private person to sue them under the Texas law; they will simply close, depriving care to more than half the women seeking abortions in Texas clinics. See, e.g., App. to Application 105, 148–150, 178–179. We have permitted those whom a law threatens with constitutional harm to bring pre-enforcement challenges to the law where the harm is less serious and the threat of enforcement less certain than the harm (and the threat) here. See Virginia v. American Booksellers Assn., Inc., 484 U. S. 383, 392–393 (1988); Babbitt v. Farm Workers, 442 U. S. 289, 298 (1979); see also Susan B. Anthony List v. Driehaus, 573 U. S. 149, 164 (2014) (finding substantial threat of future enforcement where statute permits “‘any person’” to file a complaint and “the universe of potential complainants is not restricted”). 

I recognize that Texas’s law delegates the State’s power to prevent abortions not to one person (such as a district attorney) or to a few persons (such as a group of government officials or private citizens) but to any person. But I do not see why that fact should make a critical legal difference. That delegation still threatens to invade a constitutional right, and the coming into effect of that delegation still threatens imminent harm. Normally, where a legal right is “‘invaded,’” the law provides “‘a legal remedy by suit or action at law.’” Marbury v. Madison, 1 Cranch 137, 163 (1803) (quoting 3 W. Blackstone Commentaries *23). It should prove possible to apply procedures adequate to that task here, perhaps by permitting lawsuits against a subset of delegatees (say, those particularly likely to exercise the delegated powers), or perhaps by permitting lawsuits against officials whose actions are necessary to implement the statute’s enforcement powers. There may be other not-verynew procedural bottles that can also adequately hold what is, in essence, very old and very important legal wine: The ability to ask the Judiciary to protect an individual from the invasion of a constitutional right—an invasion that threatens immediate and serious injury. 

As THE CHIEF JUSTICE writes, this Court should not permit the law to take effect without assuring the applicants (and the respondents) an opportunity first and fully to make (or to refute) these and other arguments supporting the request for an injunction. For these reasons, and for the reasons stated by THE CHIEF JUSTICE, JUSTICE SOTOMAYOR, and JUSTICE KAGAN, I dissent.

JUSTICE SOTOMAYOR, with whom JUSTICE BREYER and JUSTICE KAGAN join, dissenting. 

The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand. Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents. Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State’s own invention. Ante, at 1. Because the Court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent. 

In May 2021, the Texas Legislature enacted S. B. 8 (the Act). The Act, which took effect statewide at midnight on September 1, makes it unlawful for physicians to perform abortions if they either detect cardiac activity in an embryo or fail to perform a test to detect such activity. §3 (to be codified at Tex. Health & Safety Code Ann. §§171.201(1), 171.204(a) (West 2021)). This equates to a near-categorical ban on abortions beginning six weeks after a woman’s last menstrual period, before many women realize they are pregnant, and months before fetal viability. According to the applicants, who are abortion providers and advocates in  Texas, the Act immediately prohibits care for at least 85% of Texas abortion patients and will force many abortion clinics to close. 

The Act is clearly unconstitutional under existing precedents. See, e.g., June Medical Servs. L. L. C. v. Russo, 591 U. S. ___, ___ (2020) (ROBERTS, C. J., concurring in judgment) (slip op., at 5) (explaining that “the State may not impose an undue burden on the woman’s ability to obtain an abortion” of a “nonviable fetus” (citing Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992); internal quotation marks omitted)). The respondents do not even try to argue otherwise. Nor could they: No federal appellate court has upheld such a comprehensive prohibition on abortions before viability under current law. 

The Texas Legislature was well aware of this binding precedent. To circumvent it, the Legislature took the extraordinary step of enlisting private citizens to do what the State could not. The Act authorizes any private citizen to file a lawsuit against any person who provides an abortion in violation of the Act, “aids or abets” such an abortion (including by paying for it) regardless of whether they know the abortion is prohibited under the Act, or even intends to engage in such conduct. §3 (to be codified at Tex. Health & Safety Code Ann. §171.208). Courts are required to enjoin the defendant from engaging in these actions in the future and to award the private-citizen plaintiff at least $10,000 in “statutory damages” for each forbidden abortion performed or aided by the defendant. Ibid. In effect, the Texas Legislature has deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures. 

The Legislature fashioned this scheme because federal constitutional challenges to state laws ordinarily are brought against state officers who are in charge of enforcing the law. See, e.g., Virginia Office for Protection and Advocacy v. Stewart, 563 U. S. 247, 254 (2011) (citing Ex parte Young, 209 U. S. 123 (1908)). By prohibiting state officers from enforcing the Act directly and relying instead on citizen bounty hunters, the Legislature sought to make it more complicated for federal courts to enjoin the Act on a statewide basis. 

Taken together, the Act is a breathtaking act of defiance—of the Constitution, of this Court’s precedents, and of the rights of women seeking abortions throughout Texas. But over six weeks after the applicants filed suit to prevent the Act from taking effect, a Fifth Circuit panel abruptly stayed all proceedings before the District Court and vacated a preliminary injunction hearing that was scheduled to begin on Monday. The applicants requested emergency relief from this Court, but the Court said nothing. The Act took effect at midnight last night. 

Today, the Court finally tells the Nation that it declined to act because, in short, the State’s gambit worked. The structure of the State’s scheme, the Court reasons, raises “complex and novel antecedent procedural questions” that counsel against granting the application, ante, at 1, just as the State intended. This is untenable. It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry. Moreover, the District Court held this case justiciable in a thorough and well-reasoned opinion after weeks of briefing and consideration. 2021 WL 3821062, *8–*26 (WD Tex., Aug. 25, 2021). At a minimum, this Court should have stayed implementation of the Act to allow the lower courts to evaluate these issues in the normal course. Ante, at 2 (ROBERTS, C. J., dissenting). Instead, the Court has rewarded the State’s effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the Court’s precedents, through procedural entanglements of the State’s own creation. 

The Court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law. I dissent.

JUSTICE KAGAN, with whom JUSTICE BREYER and JUSTICE SOTOMAYOR join, dissenting. 

Without full briefing or argument, and after less than 72 hours’ thought, this Court greenlights the operation of Texas’s patently unconstitutional law banning most abortions. The Court thus rewards Texas’s scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restrictions on the State’s behalf. As of last night, and because of this Court’s ruling, Texas law prohibits abortions for the vast majority of women who seek them—in clear, and indeed undisputed, conflict with Roe and Casey. 

Today’s ruling illustrates just how far the Court’s “shadow-docket” decisions may depart from the usual principles of appellate process. That ruling, as everyone must agree, is of great consequence. Yet the majority has acted without any guidance from the Court of Appeals—which is right now considering the same issues. It has reviewed only the most cursory party submissions, and then only hastily. And it barely bothers to explain its conclusion—that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail. In all these ways, the majority’s decision is emblematic of too much of this Court’s shadowdocket decisionmaking—which every day becomes more un-reasoned, inconsistent, and impossible to defend. I respectfully dissent.

Now, that's a lot of text, but what can we take from that?

First of all, the matter was up at the Supreme Court not for a final ruling, but for an injunction precluding the law from taking effect. At least one Texas Court has issued such an injunction.

And the Court simply held that there was no standing, it wasn't actually ruling, and that it more or less expects the entire matter to be showing back up as a regular appeal or petition for certiorari.  

Indeed, arguably, taking the matter up now would have been the extraordinary act.

So what really happened?

Texas passed this law.  The Texas law pretty clear presumes that Roe v. Wade is a dead decision at this point, and they're likely right.  The legislature of the State of Texas represents Texans, and even though I've already heard one commenter decry that this defeated the view of the people, they represent the view of the people.  If they don't, you'll know they didn't next election.  That's how the system works.  

In short, we're getting a really good view of how liberals, or progressives as they now call themselves, tend to hold democracy itself in contempt, which means we're now at the scary point where the extremes on the right and the left discount democracy.  What's been missed in the wake of the January 6 insurrection is that it was the left wing in American politics that really got this rolling through their free resort to liberal courts, when the courts were liberal, to remake American law and society by fiat, rather than democratically.

In recent years the courts have been lifting the lid back off of the decisions of the 1970s and 1980s, as they often were based on simply made up law, although we still get them from time to time.  This wasn't one of them.  There was no standing, the majority was correct.  The greater issue hasn't been taken up by the Court, but is likely to be very shortly due to another pending case.  Chance are high that Roe will fall, as legally, it was always a very poorly drafted decision in the first place, and its incorporation of science as its basis was extremely, and now demonstratively, flawed.

Tuesday September 6, 1921. Dedicating the Peace Arch.

The Peace Arch between Washington State and British Columbia, commemorating 100 years of peace between the United States and Canada, was dedicated.

On the US side the arch bears the inscription "Children of a Common Mother".  On the Canadian side, "Brethren dwelling together in Unity".

On the same day the Greeks took Angora, the Turkish Nationalist capital.

Cliffsnotes of the Zeitgeist, Part XIX. Making Michael Coreone look good

Hypocrisy. 

Warren G. Harding, whom during his presidency looked like a solid person of conservative values, but who was banging his young assistant in the Oval Office, after having only recently dumped his long time paramour, who was potentially a German spy during World War One.  He wasn't exactly what he seemed to be.

Senator Pat Geary: I despise your masquerade, the dishonest way you pose yourself. You and your whole fucking family.  

Michael Corleone : We're both part of the same hypocrisy, senator, but never think it applies to my family.  

The Godfather, Part II

So goes the exchange from The Godfather, Part II.

Indeed, the scene early in the movie is full of hypocrisy.

When I started typing this out, some time ago, there was something that was really bothering me, but I've managed to forget precisely what it was.  I will say, however, I'm constantly amazed by the degree of hypocrisy that people engage in but don't seem to realize it.

Perhaps that's because realizing it requires a real element of self awareness and, more than that, self-sacrifice.  If you are doing something, that is, that is hypocritical, you either have to acknowledge it and carry on as a hypocrite, which we all do to at least some extent, or reform what you're doing, if you can.

That "if you can" element of this, I'll note, is a biggie.  Public social moralists, who often turn out to actually be hypocrites themselves are big on dumping criticism on folks on topics you can't really do anything about, at least right away.  For example, you'll find people who go after other people about driving and their carbon footprint, but that's an easy thing to do if you aren't employed in the sticks and have to drive to get where you are going simply to put food on the table.

As another example from our own times, I used to subscribe to a Twitter feed that started off on the topic of Prisoner of War camps in Nebraska during World War Two.  Somewhere along the way it devolved as the author got divorced and took up continually dumping on her ex spouse (why does anyone think that people who respond to that on Twitter are really your friends), and then dumping on her former fundamentalist Christian faith of her upbringing, and then gushing about the new boyfriend with even occasional references to their doing, shall we say, the deed.  Blech. . . 

But what was the final straw for me was when COVID hit and there were constant suggestions that those who did not stay home were the worst people in the world. Well, madam, It's easy to stay home if you are employed by a university which will pay you to sit on your butt at home. . . it isn't easy to stay home if you are a mechanic, for example.  

If that doesn't seem like an exercise in hypocrisy, it is.  There are entire classes of people who dip their cups in the government well and then criticize those who are scrapping out in the cold world for a living.  Get a clue.

Anyhow, the essence of the quote from The Godfather Part II is that both men engaged in the conversation present themselves to the outside world as respectable men, but in reality, their incredibly corrupt.  Michael Corleone has gone from somebody who realized his family was corrupt but who didn't wish to participate in the corruption, to  completely corrupt himself and head of a murderous crime family.  Pat Geary is a U.S. Senator (something that we know from the first installment of The Godfather that Michael's father Vito Corelone had hoped his son Michael would become), but at least Michael has the ability to still grasp that he's involved in crime and therefore hypocritical.  Geary may condemn Corleone for his "masquerade" but Geary can't even see that in himself.

There's an awful lot of that going around society wide.  Perhaps there always is.

I'm just frankly seeing, however, absolutely everywhere.

 One such instance is some really strong populist outrage at President Biden's withdrawal from Afghanistan.  I'm upset about that too, but I was in favor of staying in the country indefinitely.  What I don't get is Trump diehards who somehow blame Biden for carrying out what Trump started and don't also criticize Trump.  The scenes at the Kabul airport became inevitable the moment that Trump announced we were pulling out, after dealing with the Taliban without the central government.  Yes, the pull-out was botched, but it was going to be botched.  Biden shouldn't have gone down the primrose path that Trump set out, but you can't be mad at one without being mad at the other.

And yet I keep seeing some proclaim that things would have been different if Trump was in office.  

How?  This is exactly what he wanted to do.

One such instance is some really strong populist outrage at President Biden's withdrawal from Afghanistan.  I'm upset about that too, but I was in favor of staying in the country indefinitely.  What I don't get is Trump diehards who somehow blame Biden for carrying out what Trump started and don't also criticize Trump.  The scenes at the Kabul airport became inevitable the moment that Trump announced we were pulling out, after dealing with the Taliban without the central government.  Yes, the pull-out was botched, but it was going to be botched.  Biden shouldn't have gone down the primrose path that Trump set out, but you can't be mad at one without being mad at the other.

And yet I keep seeing some proclaim that things would have been different if Trump was in office.  

How?  This is exactly what he wanted to do.

On this, I'll note, I'll give props to Tulsi Gabbard.  I'm not a Gabbard fan, but she released a video criticizing pretty much everyone,  but noting that its almost certain the nation will get committed to another war that sooner or later it doesn't want to be in.

Locally, we're back to the typical hypocrisy regarding oil prices. When oil is down, we cry that the low price is killing the economy. When its up, we cry that it's killing our pocket books.  You really can't have it both ways.

A major national exercise in hypocrisy is going on right now over Texas having restricted abortions.  Democrats, and much of the Press, is all verklempt over what amounts to an exercise in democracy.  Everyone seems to be for democracy until people vote, then they're not.

Boiled down to its essence, if Texas votes to ban abortions, and if Roe v. Wade isn't the law anymore, which it probably isn't, they can do that.  Complaining that this is somehow wrong is not much different from claiming the last election was stolen.  You either respect the vote, or you are anti-democratic.

Regarding personal hypocrisy, we're also getting a major dose of Boomer left wing Catholics moral blindness.  Both Joe Biden, a practicing Catholic, and Nancy Pelosi, a practicing Catholic, are expressing public outrage.  In doing that they've gone from obvious moral ambiguity, at best, to outright departure from the tenants of the Faith.

This really crosses over the morally dubious position of "I'm personally against, but . .  " line that is usually the pathetic excuse that's laid out for taking a position contrary to the moral teaching of the Church here.  That isn't much different from a German in 1942 saying, "well, I'm personally against gassing the Jews, but . . "  That's never been any sort of real excuse, but it's one the Bishops have put up with for some reason, although it appears that day is ending.

This is really crossing a line.  You can't be an adherent Catholic and hold those positions.  The Bishops really need to act on that.  Frankly, at this point they really should be denied Communion.

Pelosi is promising to bring a bill in Congress to protect "reproductive rights", which is a hypocritical term in and of itself, as what she really means is "anti reproductive rights for women--but not men".  In doing this, she called the Supreme Court "cowardly" for not taking up a Texas appeal. That's complete bullshit and she knows it.

The point here is that Biden and Pelosi really can't hold the positions the are and pretend that they not only aren't square with the tenants of the Church, they've crossed into mortal sin.  I'm not saying they should leave the Church, they shouldn't.  I am saying that at their ages they're about to meet their maker as a guaranteed certainty and if they are believing Catholics, which I believe they are, they need to reform their conduct right now before It's too late.

On that, I'd also note, they're both in the "to whom much is given" situation that most of us aren't.  Powerful people seem to frequently compromise their morals at some point, and frankly average people do as well. That's not the point.  Their problem is that most of us could simply go to Confession and we'd be good to go.  The repentance requirement here, however, means they really have to do something more. They can't simply go to Confession and then ignore the entire topic.

What they could do, however, is respect democracy, or even reality.  Is it that hard to say "well, the legislature of Texas has spoken, and we all knew that Roe didn't make much sense in the first place. .  "

On the Supreme Court, politicians who are gnashing their teeth over the Court not taking this up right away know that the Court doesn't have to take anything up it doesn't want to, and if it did take this up, it'd just reverse Roe v. Wade.  Given as Pelosi rather obviously in the pro abortion camp, she ought to be really glad they didn't take it up.

This gets to the topic of politicians lying.  I grasp sales puffery, but lying is another matter entirely.  We're seeing this anymore all the time.

I'm still, I'd note, bothered by the hypocrisy that has become endemic in the law, of which I'm part.  I don't know if that makes me Geary or Corleone. .. but it's probably Corleone in context (at least he's a better dresser than Geary). Lawyers still tend to yawn and declare that "we have the greatest judicial system on earth" which has just about as much factual backing as getting a big foam finger and yelling out "we're number one" at a sports event.  Oh, really?  The evidence of that isn't very good.

That would argue, I'd note, for major league tort reform, but that's not going to happen as lawyers are too much of the legislative session for it to happen.  We make money from the system, and hence, we're going to keep it just as it is.

And that aspect of it goes on and on, starting with the stuff force-fed to prospective law students about how broadly applicable a law degree is, which it isn't.

Speaking of law schools, a public figure has finally managed to note that the University of Wyoming's College of Law picks up professors that are dedicated opponents of the state's industries.  You have an absolute public right to be an opponent of anything, but the state employing professors who have had a history of trying to do in big sectors of the state's economy is hypocritical and should be stopped.  Indeed, at this point, as I've stated here before, with the UBE now the laughable path to entry into the practice of law in the state, simply doing away with the law school makes economic sense.

Finally, I keep hearing people base their views on religion, politics, and science, on their pocket books.  That doesn't make sense.  If your religion, politics, and science, all square with your pocket book, you probably ought to rethink something.

One final thing on politicians.  If anything proves that it's really time to move on from Boomer politicians, it's the defeat in Afghanistan.  Indeed, it really brings up, once again, the degree to which we've tolerated a group of leaders who when the country's call came, didn't go.

That's a little over broad, I admit, but we got into a long war in Afghanistan thanks to a President who had served, in the Air Guard, who was a Boomer, listening to bad military advice from Donald Rumsfeld, who wasn't, but who was associated with the end in Vietnam to a degree, and to a host of former Trotskyite Neo Cons.  Our embarrassing departure was presided over by two Boomers who didn't serve in the service during the Vietnam War as they both had medical deferments.  I'm not commenting on the deferments, but there's something that's just flat out unsettling about all of this.  I'd feel a bit better if the guy yanking us out in the Saigon like fashion was able to say that, if he was a Boomer, "well, I look back when I was with the Marines in DaNang and . . ."

That's not happening.

Why is Billie Eilish hanging out on my Twitter feed?

I was getting this ad on my Twitter feed for a while.

I'm not sure why the pouty visage of Eilish was showing up there, and I don't know what the Adobe Creative Cloud is.

According to technogeeks, your feed is based on what you've been looking up.  I was updating Adobe the other day and this appeared shortly thereafter, so perhaps that's it.  I don't like Eilish's music at all, so I was downloading any of her stuff, but I will admit she's sort of a fascinating example of a persona evolution, although she can quit pouting any time now.

For comparison . . . 

Governor Gordon, probably too beat up to dare to attempt any renewed mask restrictions, has announced that there won't be any. This comes at the same time that the state's largest hospital is now full to overflowing with COVID 19 patients.  Yes, they're mostly unvaccinated people, but they're people.

Anyhow, it's interesting to see what restrictions are like in other English-speaking countries that share a common heritage with our own.  Consider Sydney Australia:

Greater Sydney restrictions

The situation is now so bad in Sweetwater County that they've opened up a new wing in their hospital to deal with it.  And I'm not at the point where I once again know people or know of people who are dying.

On COVID, conservative firebrand Candace Adams reportedly was turned away from a rapid test station when the owner recognized her as somebody who had been discouraging vaccinations.  Adams then tweeted on it and received a blistering back from the Twitterverse.

I think that Christian charity madates that she be allowed to be tested, but this is an interesting evolution in public attitudes. We're now seeing people reacting towards the refusals openly, and getting support for doing so.

Tanzanian female soccer players and their president.

The president of Tanzania is a woman, which should be noted given her recent comments about emigrating Tanzanian female soccer players.

She said they were "flat chested", looked like men, and therefore had "no prospects of marriage".  She termed it sad.

Eee gads.

First of all, I'm not going to bother to follow it, but I'm pretty sure that they'll find husbands, if they want to marry, and it'll all be okay.  I'm also pretty sure that they're leaving for better economic prospects.

I guess its also an interesting example of how our world outlook really doesn't translate globally at all.  We often forget that.  Many of our social trends, for example, are strictly our own, or limited to the Western world.  This is particularly the case regarding recent gender based trends.  In much of the world, probably most of it, this isn't happening and there's no sign that it will.  That fact says something regarding science and sociology, but we'll not go into that here.

This, of course, is a different matter, and President Samia Suluhu Hassan wasn't commenting on any of that, at least directly.  Being Tanzania's first female president is a really notable accomplishment and frankly means a lot more, in context, that being the first "female" in any political role in the United States at this point.  So we'd of course expect her to be a feminist icon.

Well, at least right now, she't not going to be.

More hypocrisy

News reports hold that the Taliban tricked a homosexual man into meeting with a group of them on the pretext that they were offering help for him to escape the country.  Reportedly, Afghan homosexuals are desperate to leave as they fear the treatment they'll receive under a Taliban regime, with it being a given that they were no doubt not exactly very open about things even before that.

Upon meeting with them, they beat him, and. . . raped him.

We don't mention this to simply be gross, but there's something exceedingly strange about the logic at work here, and its something that's actually been noted about things in Afghanistan.  Islam specifically prohibits homosexual acts, with it having been mentioned as prohibited in the Koran.  None the less, there are relatively common reports of men on boys at the village level.

And then there's something like this.  In seeking to punish this person, the Taliban committed a homosexual rape, which is a homosexual act.  What sort of weird logic allows a person to think this is somehow acting in accordance with a faith that condemns homosexuality?

Sins of Omission and Commission

One of the things I've become aware of recently is omission.  I.e., things we didn't do, but could have.

This is a tricky matter.  I suppose some people might be charged with a broad public duty because of their stations in life, which require them to speak up all the time.  Most of us, however, probably aren't in that category.

It comes to mind because of the topic of lying, which we've dealt with up above, again.  It'd be a rare person who tells no lies at all, but in spite of that in Catholic moral theology there's very low tolerance on lying.  This isn't to say that every lie is a mortal sin or something, but even "white lies" are regarded as sinful, even if only in a minor way.

But what about the situation in which you're a bystander to an error?

This comes up as I'm a witness to a situation in which one person is encouraging another to do something pretty significant.   What's being urged isn't morally wrong in any way, it's simply based on a set of erroneous assumptions.  It's more or less like Person A is urging Person B to get on the train at Cheyenne as he believes the train will take you to Worland, when in fact the rails down't lead there, and you'll end up in Rock Springs.  Maybe Person B will love Rock Springs, but if his goal is to go to Worland, he won't be going there.  Person A, however, really believes the train goes to Worland.  Moreover, it's not impossible that tracks will be built to Worland in the future.

So, if you are Person C, and nobody is asking you to join in this conversation, do you have an obligation to say "um. .  the tracks don't really go to Worland, they go to Rock Springs."

I dunno.

Added to that, what if the situation is that much more complicated as what Person A has said is that B should get on the train, go to Worland, meet Person C there, and the three of you can go fishing in the Big Horns.  Person C really is going to go Worland and then go on fishing, but he's not taking the train, as it doensn't go there.. What about then?  Person B can go to Rock Springs, and he might go on to go fishing at Flaming Gorge, and he might really like that, but it isn't quite the same thing.

Well, fwiw, in my hypothetical I think Person C will just shut up and let A and B plan out their rail trip.  Nobody is asking C anything, and until they do, C isn't going to speak up.  

Friday, September 5, 1941. Citizen Kane.

Citizen Kane, which many film buffs and film critics regard as the greatest movie ever made, or the greatest American movie ever made, was released.

Of course, whether it's the greatest is something that is too subjective to really determine, but it is a great film to be sure, and the widely held view that it is the greatest cannot be discounted.  It's certainly the greatest Orson Welles film, and Welles was a great actor and director.

The film is a fictionalized account of the life of William Randolph Hearst with Welles in the central role, as the fictionalized version, Charles Foster Kane.  The film goes from Kane's infancy in Colorado, where his ambitious mother sends him off in the care of a financial adviser after her boozy husband strikes it rich in Colorado from gold, through his early life, onto a publishing career, and into a miserable adulthood.  It's not a flattering portrayal of Kane/Hearst, although it is a sympathetic one.  Be that as it may, it was flattering in a "great guy" sort of way, but in a "destroyed soul" sort of way, and Hearst really hated it.  His papers took up attacking Welles as a result.

It was Welles first feature film, and by far his best.  It was Joseph Cotten's best film as well, although he'd show up very favorably in Twelve O'Clock High.

If you have not seen it, and you like movies, you really owe it to yourself to see it.

On the same day, the B-17E made its first flight.

The E variant of the B-17 was the first one that took on its familiar form.  It was a larger airplane than the prior variants and was designed for offensive, not defensive, warfare.  Earlier US thinking on heavy bombers was really geared towards coastal defense. The focus was now switching towards continental offensive strategic bombing.

B-17E on New Caledonia.

On the same day, perhaps illustrating the points noted above, Royal Air Force B-17s unsuccessully attacked the German ship Adrimal Speer.

Both of the times above are also discussed here:

Today in World War II History—September 5, 1941

The SS drove 1,500 Jewish residents of Pavoloch, Ukraine to the local Jewish cemetery, made them dig their own graves, and murdered them.

On the same day, as noted in the Today In World War II History item noted above, the Soviet government evacuated residents of 12 years of age and younger from the city.

Elsewhere, all over the US, troops were training for a coming war which was obviously coming for all who had eyes to see, although many still hoped it wouldn't come.

 Camp Blanding, Florida, September 5, 1941.

Labor Day, September 5, 1921. The Wages Of Sin

On this day in 1921 one of the most infamous, most misreported, and one of the most still most mysterious deaths in Hollywood history occurred.  And one that features all the things that still cause Hollywood to fascinate and repel.

The death of young actress Virginia Rappe.

Even though the critical events in the death of Rappe, then age 26, occurred at a party, where lot of people were around, what really occurred leading to her untimely death remains a mystery.  From what seems to be clear, we can tell the following.

Rappe was a guest at a party hosted by Fred Fischbach, a friend of celebrated silent movie comedian Roscoe "Fatty" Arbuckle.  The party was partially in celebration of a hit Arbuckle movie, Crazy To Marry.  The five reel movie was a recent release and doing well, although it is now obscure and may be in the category of lost film (I'm not sure of that).  At the time, Arbuckle was making $1,000,000 a year from films, a gigantic sum not only now, for most people, but particularly then, given the respective value of a dollar compared to now.  Arbuckle, we'd note, was married, with his spouse at the time being Minta Durfee, although the couple had recently separated.  In spite of that, it should be further noted, Durfee would call Arbuckle in later years the most generous man she'd ever met, and that in spite of their 1925 divorce, if given the choice, she'd do it all again.

Minta Durfee.

Fischback rented three hotel rooms, and, in the spirit of the times, supplied them with large quantifies of bootleg booze.  Rappe was an invited guest, and arrived with  Bambina Maude.  At the party Rappe drank a lot of alcohol.  At some point in the party it seems that he and Rappe went into room 1219 of the hotel alone, and shortly thereafter some sort of commotion occurred, Arbuckle emerged and Rappe was desperately sick.  She was taken to the hospital and died four days later from a ruptured bladder and peritonitis.

One of the hotel rooms after the party.

Arbuckle was arrested and accused of rape and manslaughter, with an essential element of the accusation being that forced sex had caused Rappe's death.

Seems, at first blush, clear enough, but it gets very confused from there.

Arbuckle maintained his innocence throughout.  He was tried three times, resulting in two mistrials, and then an acquittal.  Bambina Maude was a witness in the story, filling in lurid details, but she was later revealed to be a procurer who used that role to blackmail recipients of the favors she'd arranged to supply, although there was no evidence that she was acting as a procurer at the time of the attendance at the party.  Indeed, while there are multiple stories as to what occured, one of the versions that exists is that the room that Rappe went into was the only one with a bathroom and she went into it to throw up, going through the bedroom where Maude was having sex with a movie director. In that version, which isn't the only one, Arbuckle went in the room to carry the collapsed Rappe out. ^[1]. 

The final jury apologized to Arbuckle for what he'd been through. And, indeed, it seems fairly clear that whatever occurred between Arbuckle and Rappe, it wasn't that which resulted in her death, but rather a chronic medical condition that was exacerbated by alcohol.  It's likely her drinking at the party, which killed her.

Rappe, who was at one time regarded as the "best dressed girl in films".

Even that, however, doesn't flesh the entire tragic story out.  Rappe was only 26, but by that age was already a photographic veteran, having worked as an orphan raised by her grandmother as a model since age 14.  She had some trouble holding alcohol and was inclined to strip when drunk.  She'd been the live in with Henry Lehamn only fairly recently, to whom she'd been engaged.  According to at least some sources, which may be doubted given that they are a century old, she was freer with her affections than the norms of the time would have endorsed.

What occurred between Arbuckle and Rappe is not known and never well be and now too much time has passed to sort it out.  About as much as we can tell is that it seems that Arbuckle might have made some sort of advance on Rappe and that at first Rappe might have welcomed it.  That she was desperately ill is clear.  Her illness killed her.

This, in turn, provides an interesting look at public morals and standards, then and now.  At least some of the conduct Rappe and Arbuckle were engaging in was immoral by Christian standards, and Christian standards were clearly the public standards of the day.  Be that as it may, it's clear that in his trials, the fact that Arbuckle was doing something with a drunk woman doesn't seem to have been held against him, or at least it ultimately wasn't.  Of course, maybe the jurors didnt' feel he was doing anything with her, or even aiding her, or at least some must have thought that in all three trials.  If Arbuckle was advancing on her, it most definitely would be regarded as improper today.  Having said that, it wasn't all that long ago that "get her drunk" was sort of a joke which implied that inebriation to the point of being unable to consent was consent.

Arbuckle's career would never recover from the evening.  Perhaps, in some ways, it shouldn't have.  He wasn't a killer, but what occurred was unconscionable for other reasons. .  reasons we seemingly have managed to forget, however, over the years.  Even after his acquittal he was more or less blackballed in the industry for a time, and then when that was lifted his star power was gone.  He changed his name and made a much smaller living behind the scenes before starting to stage a minor comeback in the 1930s.  He died in 1933 in a hotel room from a heart attack.  He was 46.

Arbuckle movie poster from 1932.

It's interesting to see how this event compares to contemporary ones.  We have a person in attendance at the party who associated with the rich and famous whose role seems to have been supplying female favors (Maude), much like Jeffrey Epstein and his hangers on have been accused of.  We have a Hollywood set who lived personal lives that departed greatly from public standards, something that's still the case, although less so now as standards have declined so much, and we might have some sort of sexual contact between a male Hollywood figure and a very drunk actress (or not), something that in our contemporary culture would be a career ending event irrespective of the accusations of rape.  Indeed, accusations of rape in Hollywood, not all of which are substantiated, have become very common in recent years.

In the end it was a terrible tragedy.  People thought they were going to a party  Rappe probably knew she was drinking too much.  Arbuckle surely knew he shouldn't make advances on her.  Death came like a "thief in the night", which nobody anticipated.

On the same day, elsewhere, the League of Nations convened for the second time and admitted Albania, Austria, Bulgaria, Finland and Luxembourg.

Footnotes:

1  Yet another version, upon which a book was written asserts that Rappe had received  botched abortion that had nicked her bladder, and it ruptured when she tickled Arbuckle and he accidentally kneed her.  

Others criticize that assertion, which would by definition be based on a large element of speculation.  It seems based on Rappe having reported received something like five prior abortions in an era when they were all fully illegal.

Sunday Morning Scene: Churches of the West: First Baptist Church, Rock River, Wyoming.

Churches of the West: First Baptist Church, Rock River, Wyoming.: 

First Baptist Church, Rock River, Wyoming.

This is the First Baptist Church in Rock River, Wyoming.  The Baptist church in the tiny town was founded in 2010 and obviously used a commercial structure for its basic design.

 

The best posts of the week of August 29, 2021

Title says it all.

2022 Wyoming Legislative Session. Part I.

Defeat In Afghanistan. How It Came About.

Casper College Western History Center: Archival Needs Assessment Report

Wars and Rumors of War. 2021, Part Two.

Labor Day, September 1, 1941. Marking Targets for Death and Labor Day Addresses.

"America's longest war. . . wasn't"

What about Pakistan?

Pandemic Part 6. The Delta Surge

Some recent legal observations

Spin and Deflection.

Thursday September 4, 1941. The Greer Incident.

A blue grouse opener retrospective.