Another Free-Exercise Case Goes To The Supreme Court

In yesterday's post, I mentioned a petition for injunctive relief that's gone to the court from a New Jersey SSPX priest and an Orthodox rabbi. I covered this case in its initial phase on my old blog here. In another case, Harvest Rock Church of Pasadena, CA has petitioned for injunctive relief pending appeal in its federal lawsuit against California lockdown orders. This is the same type of relief the court granted the Catholic Diocese of Brooklyn and the New York synagogues Wednesday night.

One possible difference among the suits is that Harvest Rock Church has been deliberately violating the California orders, while as far as I can determine, the other churches and synagogues have not. An argument the Catholic diocese made in its case was that it had been following the existing rules prior to Gov Cuomo's red-light order, and in following those rules, it had seen no COVID cases. The court in its opinion recognized this argument in the diocese's favor.

Harvest Rock is in a different position, since it's one of three Southern California megachurches that resumed worship last May without masks or social distancing. All three claim that there have been minimal p;ositive tests among their thousands of attendees since that time, and apparently no hospitalizatins. (I assume that local media would cover more numerous positives or any hospitalizations heavily if they took place.) How the court will react to this difference remains to be seen.

It isn't entirely clear if in fact the New York synagogues had been violating previous, less restrictive COVID orders prior to Gov Cuomo's imposition of "red zone" orders. Certainly the implication of Cuomo's remarks, as well as press coverage, was that the Jews had somehow been wrecking things for everyone else and needed to be curbed, so this may have been an issue.

The conundrum at the basis of all COVID restrictions is that they don't seem to have any effect on testing rates in particular. The states with the tightest new restrictions had had stringent ones before the latest spike. Most of California already prohibited indoor church services and required masks and social distancing. Choral singing and congregational response were also prohibited. There have been equivalent, though looser, controls over most other acitivity, including retail shopping. In California, masks are ubiquitous.

Yet the response of civil authorites has been to scold the population for not being safe enough, when it appears that people have been following all appropriate guidelines, and in fact nobody seems to be asking why, if the guidelines are being followed, cases are spiking. If the only answer is to tighten controls still more, that will simply mean an indefinite renweed stay-at-home lockdown, which is in fact what's being threatened, with the implication that this is the fault of the citizenry, who will deserve it.

At the same time, the authorities seem generally to be aware that a new lockdown will probably result in civil unrest. In addiiton, If COVID control measures continue to be arbitrary and ineffective -- as they're more and more appearing to be -- this will damage the ability of health officials to control future epidemics. That so far, there's been no effective leadership in this area at either the state, national, or global level has been the unacknowledged crisis of 2020.

Supreme Court Stops New York Restrictions On Churches And Synagogues

This is being widely covered, for instance here, so I'm not going to go into specifics. On one hand, this is something that should have been done last May, when the court refused to hear similar California cases, at least psrtly on the basis that Gov Newsom loosened the restrictions once the suits were brought.

But that didn't deal with the reality that all such restrictions are subject to the governor's whim,. and six weeks later, Newsom simply reimposed the restrictions he'd lifted. Chief Justice Roberts in his dissent from the new ruling said that Cuomo had lifted the strictest restrictions as soon as the suit was filed, but the majority recognized that Cuomo, like Newsom, could pull the same ploy and issued an injunction against enforcing them, whether he'd temporarily lifted them or not.

For the court to deal with this has been overdue, since such extreme restrictions are in force elsewhee. The court''s decision noted inconsistencies in capacity limits for houses of worship vis-a-v9is other indoor activities. Whether this line of reasoning can be applied to other cases remains to be se4n.

In addition, the court noted that the houses of worship had not seen COVID cases under the prior, looser restrictions. This is one argument that the California megachurches that have not followed the governor's directives have made: for months, with thousands attending church services without social distancing, there has been negligible transmission. Whether this will affect their legal cases remains to be seen.

But at least this is a belated start.

The Thomas More Society has brought a very similar motion for injunctive relief to the Supreme Court in a New Jersey case. The New York restrictions were much more extreme -- limits of 10 or 25 attendees -- while the New Jersey restrictions are more common in other states, 25% of capacity up to a numerical limit. But the suit alleges that churches are being held to different standards from other activities.

We'll have to see what develops.

No, The Kraken Isn't Just Sleeping

The web has been pretty much empty of intelligent commentary since the Trump legal team's disavowal of Sidney Powell. There's a consensus among a few people like Rush Limbaugh and Robert Barnes that the November 19 news conference, in which Giuliani effectively endorsed Powell's unsubstantiated theory that Dominion voting machines switched millions of votes from Trump to Biden, only to fire her days later, was a disaster. But other questions need to be asked.

Trump won a close election with a popular vote minority in 2016. In 2020, he ran almost exactly the same strategy, which the Democrats anticipated, and lost a close election trying to win exactly the same states. Both years, he ran against weak, out-of-touch, sick Democrat candidates who campaigned far less than he did. The evidence we're starting to get, and the opinions of commentators like Alan Dershowitz, is that although there was vote fraud in 2020, it was what we've always expected from big-city machines, and it wasn't enough to overturn the margin of victory. What was the difference between 2016 and 2020?

Nobody's asking questions about this. Rather than mourn the dead kraken, why not try to figure out what went wrong and how we can fight going forward?

What was the difference between Trump and Reagan, who won a credible victory in 1980 but a landslide in 1984? Even George W increased his margin of victory in 2004 vs 2000. Trump seems never to have aimed in that direction, apparently expecting to carry the same states he carried in 2016, with only head fakes to Minnesota and New Hampshire. But he lost key states he'd carried in 2016, and the kraken, now dead, can't be blamed.

One thing that strikes me is that both Reagan and Bush Jr had solid and trustworthy advisers, Reagan with the "kitchen cabinet" who'd accompanied him from California. Reagan also had input from the Wall Street Journal, Arthur Laffer, William Buckley, and the National Review contingent at the time. Bush Jr had a cadre of neoconservatives, many from NR and WSJ, as well as Vice President Cheney. Those were wrong on Iraq, but their mistakes didn't come out before 2004. Junior had also been a frequent visitor at the White House with his father.

I suspect one thing that will come out about Trump is a complaint that was also made about Newt Gingrich, whose career prematurely flamed out in the 1990s. Gingrich, it was said, tended to take the advice of the last person who'd talked to him. I bet something like this happened with Trump. That Sidney Powell was able to hijack the post-election legal effort is probably a symptom -- she had a superficially good idea that she couldn't back up if anyone pressed her at all.

I think one answer is that Trump was a talented political newcomer. Robert Barnes suggests there might be a parallel with the election of 1824, where Andrew Jackson was edged out in favor of the lackluster John Quincy Adams, and Jackson made a comeback in 1828. But Jackson was 57 in 1824, while Trump is 74 in 2020. Robust as he is now, he seems tired in the wake of the election, and I don't think he'll be the same man in four years.

Trump was able to recognize political trends that he didn't create, and they won't go away when he leaves office. He wasn't surrounded by advisers and cabinet who could support and extend his vision. But the constant commotion among his staff, right up to the November 19 press fiasco, is an indication he didn't have a fully mature set of advisers, which took him down. Among his failed instincts in hindsight was his adoption of Dr Fauci as administration spokesman on the COVID crisis. Commentators pointed out that Fauci had a record of poor performance during the AIDS crisis, but apparently Trump had no Washington hands to give him insight on Fauci when he needed it.

Robert Barnes and Richard Baris make the point that no Bush, McCain, or Romney could carry Wisconsin, Michigan, or Pennsylvania. They had hard enough times with Ohio and Florida. There needs to be some serious rethinking among the next generation of Republican hopefuls. Pretending the kraken is just sleeping will only delay the necessary tasks.

The COVID Data Makes No Sense

We've entered a season in which governors and local health authorites are reimposing COVID controls, with Michigan in near-complete lockdown, while most other states are falling into line with curfews, typically stay-at-home orders with the usual exceptions between 10 PM and 5 AM or whenever. I haven't heard any clear explanation for why people should not move around after 10, with a lot of questions about whether the authorities think if people just don't go out to bars, the cases will drop.

The problem is that public health authorities don't actually know how COVID is transmitted, and when it's transmitted, why so many cases are asymptomatic. An article in the Wall Street Journal is behind a paywall, but Instapundit has an excerpt: "Western nations face a big challenge in fighting the Covid-19 pandemic: Ten months into the health crisis, they still know little about where people are catching the virus. . . . Jay Varma, senior adviser for public health in the New York City mayor’s office, said 10% of the city’s infections are due to travel, 5% from gatherings, and another 5% from institutional settings such as nursing homes."

“The vast majority of the remainder—somewhere probably around 50% or more [isn't this 80%?] -- we don’t have a way to directly attribute their source of infection,” Mr. Varma said. “And that’s a concern.” So by shutting down synagogues nnd churches, New York is by its own numbers addressing 5% of the problem. By New York's estimate, curfews intended to limit people going to bars address the same 5%. The same applies to banning Thanksgiving.

At this point,, the COVID virus has been out-and-about for roughly a year, but despite legions of highly-paid health experts on the case, we know little more about it than we did a year ago, and the remedies proposed are the same as those imposed early this year -- basically, masks and lockdowns. But at this point it's received knowledge that the states with the strictest regimes, like New York, Illinois, and Califonrnia, also have the biggest increases in cases.

But by imposing restrictions on behavior that by New York's informed estimate causes only 5% of the problem, those restrictions are guaranteed to have almost no effect -- and this is what we're seeing. For that matter, the empirical evidence we see is that the California megachurches that have defied restrictions there and continue to worship as before have had negligible infections. Why isn't anyone asking these quesstions?

On top of that, although infections have increased in recent weeks, many of these are asymptomatic, snd COVID death rates actually continue to decrease. For those hospitalized, treatments have become steadily more effective, and public figures who report infections, including President Trump, recover with mild symptoms.

It's hard to avoid thinking that the whole strategy of masks, capacity limits, social distance, and lockdowns is there to give an impression that government is doing something, but the frenzy is having little actual effect. The curfews are an attempt to appear to be doing something without causing outright social unrest, which is what reimposing full lockdowns is likely to do. The curfews themselves have resulted in viral videos emerging from incidents across the country like the one below in Buffalo:

The problem is that the public is increasingly aware that curfews do nothing to limit COVID, and the increasing cases will result in reimposed full lockdowns, right around Christmas. The authorites already have gotten plenty of messages that the result will not be good.

Robert Barnes On Sidney Powell

Within hours of last evening's announcement that Sidney Powell was no longer on the Trump legal team, Robert Barnes appeared on the Viva Frei YouTube channel to provide his insights into what happened. I've already said here that Barnes has proven one of the best analysts available in the current election cycle. He's the best of some very bad choices, but I'll go into that below.

To summarize Barnes's account, his view of Powell's professional background is that she has no experience in election law and no experience in civil law, both of which are key in the Trump effort. She does specialize in criminal appeals, which made her the best possible attorney for General Flynn, and this made her reputation. But she's completely over her head in the current cases.

He also thinks stress and fame have affected her judgment. But also, she seems to have swallowed QAnon conspiracy theories, one of which would be that Venezuela controlled the election count via the Frankfurt server. (She seems to be on the verge of alleging this outright.) In his view, she hijacked the Trump legal effort over the week of November 16, leading up to the Thursday press conference, where she took equal precedence with Giuliani and Ellis. From Barnes's viewpoint, this was a "public relations disaster".

I've also on my old blog cited a YouTuve channel called Hard Bastard as another very good source of analysis. The Hard Bastard's view tracks pretty closely with Barnes.

The overall problem we continue to have is that corporate media has been losing credibility throughout the Trump administration, in an environment where the CIA, FBI, and other formerly authoritative institutions have demonstrably acted in bad faith. Conventional wisdom had Fox News as a potential counterbalance, but recall that Fox worked against Trump in 2016 as well -- Megyn Kelly's debate performance that year destroyed her reputaion and career..

Bloggers and social media haven't filled the gap. Just since yesterday, the bloggers have mostly stayed on Powell's side, continuing to hope she'll come up with the evidence she's promised. The few sensible opinions, like Barnes and Hard Bastard, are on YouTube, where there's generally no transcript, and the discussion is by its nature desultory. Thus it's hard to quote excerpts.

In addition, there's no pattern of independent daily commentary on the news cycle. There were no intelligent, unhysterical voices as of Tuesday when Powell announced the kraken had already been released. (Commenting on last night, another blogger said the kraken died.) A Barnes might have provided a better warning at the time. The Thursday press conference salvaged Powell's credibility in my mind, for instance. Commentary by someone other than the pretty boy Carlson could have helped.

One problem is that the good independent commentators like those above aren't professional journalists. Their work appears at best every few days, and in Barnes's case, it's across a number of platforms. We need a predictable pattern of credible, pertinent comment.

Trump Legal Team Apparently Disavows Sidney Powell

Info here. I'll be following up.

Dominion Sidesteps On Fox

A spokesman for Dominion Voting Systems appeared on Fox News today to repeat, pretty much verbatim, the claims Dominion has made on its website about its role in the election. The spokesman on Fox, Michael Steel, is identified as a principal with Hamilton Place Strategies. Hamilton Place's website says, "We understand complex topics, explain issues to target audiences, and persuade critical stakeholders." In other words, it's a PR firm. I'd suggest Dominion needs a crisis management firm instead, but that's just me.

What's interesting here is that Dominion's own executives backed out of testifying at a Pennsylvania House hearing on Friday, but today, they've delegated to a PR flack to make statements that we may reasonably assume Dominion's attorneys advised its executives not to make, as they could either be taken as admissions against interest or statements that could be used to challenge them on cross-examination. I suspect as well that Dominion was nevertheless under pressure to say more in response to the continuing controlversy, and the clearly scripted exchange witn the Fox talking head implies that the controversy isn't going away.

Maria Bartiromo had a good list of questions that ought to be asked of Dominion on her show this morning:

Thee are questions Michael Steel isn't qualified to answer and will at some point need to be posed with Dominion. All Steel did was dismiss legitimate questions like these as "conspiracy theories". It sounds as if Bartiromo is talking with some serious people, and these questins aren't going to go away.