Legal things, cakeshop edition

tl;dr Masterpiece Cakeshop is somewhat bad, but not a disaster. Essentially, SCOTUS dodged the bullet. There's also an important silver lining here.

As soon as I saw that the ruling came down 7-2 I knew they'd dodged. The Court is divided and one of Roberts' consistent tactics to get more consensus is to narrow the scope of rulings to things a larger majority can agree on. I'm certain that if this had been framed as a gay rights or free speech issue, it would have come out 5-4 or maybe even 3-2-2-2 with nobody able to get a majority.

Headlines - at least from the non-rightwing/non-religious media - have consistently used the word "narrow" which is great headline fodder but doesn't tell you a lot. I will say that I haven't read the full opinions yet, but the summary and knowledgeable commentary is in agreement. See for example http://www.scotusblog.com/2018/06/opinion-analysis-court-rules-narrowly-for-baker-in-same-sex-wedding-cake-case/#more-270956 - SCOTUSblog is absolutely the best source for most things about the Supreme Court.

The Court majority held that the Colorado administrative agency did not treat the baker (Phillips) fairly. It stated that commissioners' statements showed that they were hostile to Phillips and to his religious beliefs. Given that evidence, it's easy to argue that he did not get a fair hearing; the ruling compels the public agency to rule on this matter in a way that is neutral with respect to religion.

That in itself is actually not a bad thing. Generally, we'd like public agencies to make rulings in a religion-neutral fashion. The ruling does NOT say that religious beliefs overpower equal accommodation laws and most importantly it is completely silent on the First Amendment issues. Those issues were raised later in an attempt to strengthen the appeal and I'm glad the Court didn't rule on them. There's a lot of nasty detail in that swamp.

The ruling also seems to make clear that the Court doesn't want to weigh in on whether religious exemptions beat public accommodations. I suspect the case will end up back at SCOTUS on those grounds and I'm not optimistic. Ever since the Court tossed out RFRA (https://en.wikipedia.org/wiki/Religious_Freedom_Restoration_Act) they've been walking that back. Hobby Lobby being the most egregious example, but there are others. Probably the worst part of this is that the ruling is going to embolden state-level challenges. As I remarked on Twitter, we dodged a huge bullet when SCOTUS not only overturned the national DOMA, it invalidated all the state-level DOMA-alikes. There are many state-level RFRA laws now and it's going to be an ugly slog to overcome them.

So where's the silver lining? It's in the fact that Kennedy's analysis relies on the speech of the Colorado commissioners. If a public official expresses hostility toward a group, that verbal animus can - SCOTUS has now reminded us - be used as evidence that the group is not receiving fair treatment. There are still cases regarding government policy such as the travel ban where plaintiffs are arguing that DJT's statements are relevant. And so long as DJT continues to blow his verbal wad all over the Internets, it's open season for smart lawyers.

We saw Glitch Mob and I'm not raving about the show for once

Glitch Mob at House of Blues, with Elohim opening - more about her below, too. This is the fifth or sixth time we've seen the Mob and although the show wasn't bad, it was probably the weakest show of theirs we've seen.

- Their energy level seemed low throughout. I realize they're on a long tour, but they just seemed stuck in first gear for about the opening 15 minutes. Eventually they hit "Our Demons" and seemed to find their stride. The encore, which included several of their popular hits, finally reached the energy level I'm used to seeing.

- Not enough drumming. The improved Blade is fun to see and I like the way it lights now, but one of the things that makes Mob shows special is the improvisational drumming. It's not Taiko, but they're good. This time they barely touched the big drums.

- A surprising lack of tracks from the new album. Usually when a band tours in support of a new album you get a majority of content from the new stuff, with some favorites mixed in. This time they did only 3-4 of the new tracks (anyone have a setlist? finding one online among the generic search engine results is eluding me.)

- They skipped several of the best tracks from their back catalog with vocals. Our Demons of course has Aja Volkman, and they did "I Could Be Anything" with Elohim live but that was about it. In past shows they've played behind recorded vocals and it's been a real treat.

I also have to complain that the Mob has fallen into the "let's shine bright lights into the audience eyes" camp. Seriously, cut that entirely the fuck out. Watching the Blade play and the drumming is a big part of what I'm here for and I can't see shit with that in my eyes.

All that said, still worth the time and money. Will see again. Just a 3-star performance rather than the usual 4 or 5.

Elohim is worth mentioning. I was looking forward to her set and she mostly didn't disappoint. I like her music (which is sort of the EDM equivalent of bubblegum pop) and her moves are good, as is her mic patter. My biggest problem with her set is that I think the mix was bad - much of the keyboard sound was in the same range as the vocals so she was very hard to understand. HoB sound is usually quite good, so I don't know what to make of that. If she makes it back this way I will likely try to see her again - she's got a very positive vibe going.

Legal things, theoretical edition

Question: Can Trump pardon himself?

(it's important to contextualize the following theorizing with "I am not a lawyer". Then again, neither is Trump and he also has idiots on his legal team, a handicap I don't have. Although I use "he" throughout this entry I think the logic would apply equally if Ms Clinton or any other-gendered person was president.)

The question is one of those that law professors love to swat around abstractly. The closest we've ever gotten to a real formulation of the question is, reputedly, Nixon asking it of his Justice Department. He got back a "hell no!" answer, apparently. Then again, I recently discovered that Nixon did not want Ford's pardon, which contradicted a long-held belief so I remain open to learning new things.

I also believe the answer is "no" but not because it's written into the Constitution; rather, I think it's so evidently no that the Founders never considered it necessary to write down. To understand that, let's go back to some basics.

First, why does the President have a pardon power in the first place? Why write that into the Constitution? The best theory I've heard (and I'm also not a Constitutional scholar, so take this with a grain of salt) is that Article II enumerates a Presidential pardon power because the President is also head of the branch of government that prosecutes crimes. Prosecutors have discretion about which crimes to pursue, and the pardon power then gives that branch the ability to say "these are the things that we as a society choose to forgive; those people are considered to have paid their debt and can be forgiven."

Like any discretionary power it can be abused, but this is the core justification - somewhere, there must be a way to state what we as a society forgive and that power should not rest with those who make the laws nor with those who decide if the laws have been broken. It's true that the pardon power was traditionally vested in monarchs, but even though nobody wanted the new Executive to be a king, they left this in.

The Constitution is both weirdly silent and weirdly specific in its notion of crimes. That is because at the time of framing, all crime was state crime and as such a person - including the President - would be prosecuted for such crimes. The Presidential pardon power doesn't extend to state crimes so the framers likely anticipated that a President would not be able to pardon himself for the vast majority of possible infractions. It's pretty well accepted that the founders did not imagine the growth and eventual supremacy of the Federal government. Estimates I've seen say that there are now over 3600 enumerated Federal crimes.

By contrast, the only three specific Constitutional crimes are piracy, counterfeiting, and treason. Elsewhere, the Constitution limits what a President can pardon for, specifically excluding impeachable offenses. But then the language of what someone can be impeached for is itself vague (high crimes and misdemeanors). So the President can, in theory, pardon someone else for treason, even a treason he's involved in (how apropos!) but the remedy for that is impeachment.

So the President can pardon and that's why; can he self-pardon? The framing of having trials that are outside the presidential prerogative (state level) and the ideal of both the Declaration and the Constitution establishing no one as above the law lead me to say no, because the alternative is a contradiction. That is, if the President can self-pardon then he becomes above the law. A presidential self-pardon violates the commonly accepted intent of the founding documents.

Unfortunately, the law doesn't operate by this kind of logic. It operates by reference to original sources (laws, the Constitution) and precedents (previous relevant decisions). This is what permits Trump and his legal monkeys to claim that he can self-pardon. There's nothing in the source documents, nor is there good case law, to say the opposite. You have to go back to contemporary writings, such as The Federalist (http://www.constitution.org/fed/federa10.htm) where you find language like: "No man is allowed to be a judge in his own cause..."

Ironically, should this matter ever come to the courts, the people most likely to refer to these types of documents are the so-called Originalists, of whom the late Justice Scalia was probably best known. That we might have to rely on the most right-wing conservatives to defend us against a rogue president seems like the most 2018 thing this week. But stay tuned, it's only Thursday.