Friday, June 23, 2017

Redistricting and Blue Cities

by Neil H. Buchanan

Can anything be done to make congressional and state legislative races more competitive?  The Supreme Court has taken on a case from Wisconsin that could meaningfully limit partisan gerrymandering.  Depending on Justice Kennedy's vote, that case could change the way districts are drawn, which in turn could radically alter the results of American elections.

I will surely have more to say about that case in future columns, especially the proposed formula for identifying impermissible partisanship that the plaintiffs would like the Supreme Court to endorse.  Before going there, however, it is first worth asking whether gerrymandering is as important as people like me think it is.

After all, if Republicans' recent lock on the House of Representatives and state legislatures is not a result of gerrymandering (and voter suppression, which is obviously the key part of Republicans' strategy), an awful lot of effort on Democrats' part is going to be misdirected.

Thursday, June 22, 2017

The Slants, Government Speech, and Elane Photography

by Michael Dorf
(cross-posted on Take Care)

The most important immediate impact of Monday's SCOTUS ruling in Matal v. Tam is that the Washington Redskins will be able to enjoy registered trademark protection, notwithstanding the offensiveness of their name. In invalidating the provision of federal trademark law that denied federal registration for any mark that would “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead,” neither Justice Alito's majority/plurality opinion nor Justice Kennedy's concurrence/concurrence in the judgment (joined by Justices Ginsburg, Sotomayor, and Kagan) relied on the fact that the respondent used the name "The Slants" ironically so as to "take it back." Thus the holding also applies to offensive trademarks that are used unironically, like the Washington Redskins, Chief Wahoo of the Cleveland Indians, and Trump Tower.

Meanwhile, a portion of Justice Alito's opinion that speaks for the full Court devotes substantial space to rejecting the argument that trademark registration is a form of "government speech." As Marty Lederman notes in a post on Balkinization, this part of the opinion addresses a straw man insofar as it contends that a trademark itself is not government speech; nobody said otherwise. But I do think that Justice Alito rightly understood that the asserted government interest in not wanting to be perceived as endorsing offensive trademarks by registering them is more or less the same interest that the government asserts in cases in which government speech is directly at issue.

Wednesday, June 21, 2017

The Case for Driverless Cars Just Became A Bit Easier to Make

by Neil H. Buchanan

Many people feel uncomfortable with the notion of driverless cars, and I certainly understand why.  How weird would it be to sit in a vehicle alone (not even with a humanoid robot in a driver's seat) and have that vehicle drive off at 35, 55, or even 70 miles an hour?

Is that too scary for people to accept?  Is it scarier than the fact that people driving cars are killing 40,000 Americans per year?  Is is scary that vehicles can be used deliberately to kill?

That, as I will discuss momentarily, is the new wrinkle to the story.  Will terrorists inadvertently move public opinion in favor of driverless cars?

Tuesday, June 20, 2017

Charles Camosy's Response to My Review of Beyond The Abortion Wars

By Sherry F. Colb

In Horizons, a journal published by Cambridge University Press, I have a review of Charles Camosy's book, Beyond the Abortion Wars: A Way Forward For a New Generation. After the various reviews of his book, Professor Camosy provides responses to each one. Because I think his response to my review inaccurately represents my review, I wanted to take the opportunity here to reply to his response.

Just so that readers have some idea of what this is all about, Camosy's book proposes that we can get beyond debates about abortion if we incorporate the majority's view of the procedure: prohibit most abortions but allow some, including those necessary to save a woman's life and those where the pregnancy has resulted from rape, the latter of which would be allowed if the abortion is a failure-to-aid termination (such as a medical abortion) rather than an abortion involving direct violence to the fetus. He also proposes greater government financial and other support for pregnant women and mothers, a proposal that I applaud. There is more to it, of course, but this is a rough overview.

In my review, I discuss the sentience criterion for moral consideration, an idea Michael Dorf and I develop more extensively in Beating Hearts: Abortion and Animal Rights, where we suggest that abortions taking place after fetal sentience are morally problematic in a way that pre-sentience abortions are not. With this setup, here is my response to Camosy's review.

Monday, June 19, 2017

SCOTUS Severely Narrows Civil Rights Suits Against Federal Officers

by Michael Dorf

Today's ruling in Ziglar v. Abbasi makes it all but impossible for civil rights plaintiffs to sue federal officials for money damages. After explaining why the ruling is extremely troubling, I will offer a partial solution.

Taking the Gloves off for Cameras in the Court

By Eric Segall

Last week in the L.A. Times (with support from Judge Posner and Justice Willett) and in Judicature (writing with Erwin Chemerinsky), I discussed the Supreme Court’s continued refusal to allow any video coverage of its proceedings. My tone in both pieces was reasonably measured (at least by my standards), and I had to leave out a few arguments because of space requirements. For this piece, the gloves come off, and I can be a bit more comprehensive. I also want to respond to the concern that we should ask the Justices to move slowly, maybe by starting with live audio, before they approve cameras. 

There is not a single good reason justifying the Court’s blackout of its already public oral arguments and decision announcements, while there are compelling reasons the Court should enter the 21st century. The benefits of allowing cameras include the following: 1) the generalized interest in more governmental transparency; 2) the democratic interest in allowing everyone to witness what a privileged few in the courtroom get to see; 3) the citizenship interest in providing moments when we can gather together and see historic governmental decisions being made (almost 20,000,000 people watched James Comey’s recent testimony); 4) the modern interest in engaging younger generations in the work of the Court in a way that is impossible through after-the-fact audio; 5) the historical interest in allowing museums to capture and display landmark arguments and decisions; 6) the educational interest in providing students and teachers of the law, and Americans in general, the opportunity to see heated disagreements over fundamental legal questions carried out with civility and respect; 7) the professional interest in allowing Supreme Court litigators to witness the Justices in action to better prepare them for their arguments; and 8) the societal interest in demystifying the role of the Justices and the nature of the Court’s proceedings.

I have previously explained all of these benefits in much more detail and won’t repeat those arguments here.

The arguments against cameras or live-streaming are based almost entirely on fear and speculation. Before I list those, however, it is important to note that all fifty states, other countries, and the U.S. Court of Appeals for the Ninth Circuit regularly show their arguments with no complaints. The Supreme Court of Texas has been webcasting for a decade. Forget the arguments about the O.J. Simpson trial and cameras. I am not arguing for trials to be on television. I am advocating for cameras at appellate arguments where there is no jury.

There are a few academics who continue to argue against cameras based on the fear that television or live streaming will change oral arguments for the worse. There is no evidence, however, this has been true at the fifty state supreme courts, the Ninth Circuit, or other countries but, of course, those arguments aren’t on C-Span or national television here in America. Nevertheless, the notion that either Supreme Court litigators or the Justices themselves will play to the cameras in a way that is injurious to the American people or the Court is wildly speculative if not fanciful.

Unlike members of Congress who obviously play to the cameras because they need to be re-elected, or they want their political party to look better, the Justices don’t have the worry of elections, and they are unlikely to appear overly partisan on national television. 

          Any attorney who is seen by the Justices as performing for a television audience will feel the Justices' wrath quickly and sternly. In any event, should any of this come to pass and the arguments deteriorate significantly, the Justices can change their minds and prohibit cameras in the future . Shouldn’t we find out?

To the extent there is a worry about lawyer misbehavior specifically, none of these fears are relevant to the Court’s decision announcements after the end of April when there are no oral arguments and the Justices have complete control of the proceedings. This period is also when the Court’s most important decisions are handed down, and the American people would have the most interest in seeing the decisions announced.

The Justices and others opposed to cameras have also made the following arguments: 

1)   The public might place undue importance on the oral arguments as opposed to the briefs and final written opinions;
2)   Cameras might make it more likely that the Justices will be the victims of violence;
3)   Snippets and sound bites of the arguments might be taken out of context by the media; and
4)   The Justices might be ridiculed by late night comedians or mock news shows.

I have documented these objections and responded to them at length in numerous places before. My most academic treatment is here, and Erwin and I also examined them in our Judicature essay. In brief:

1)   The possibility that the public might not understand the role of oral arguments is no reason to deny them the chance to view them, and the Justices could easily explain the role of the arguments in many different fora.
2)   There is no evidence that cameras present a security risk to the Justices. In this day and age, when information on all the Justices as well as their images, are publicly available on the internet, and many of them go on television either to sell books or simply discuss their jobs, it is most unlikely that cameras in the courtroom will lead to a substantial increased risk of violence.
3)   All government officials--indeed, all people--when they speak in public, risk having their statements taken out of context through misleading soundbites. Those concerns do not justify a media blackout in other contexts or in this one. Moreover, the Justices run this risk now and, if there is a dispute about something that is said or happens in the courtroom, visual evidence could only help get to the truth.
4)   Being mocked by comedians or late night mock news shows is simply part of the job.

The benefits set forth above easily outweigh the hypothetical fears. Moreover, if cameras do end up having pernicious effects that outweigh the educational, democratic, and historical benefits of cameras, the Justices are free to change their minds.

I want to end by responding to an argument that Jerry Goldman, Emeritus Director of OYEZ, made to me in a series of emails. Jerry is ultimately in favor of cameras in the Court but feels it will only happen “brick by brick.” He wrote that courts “like to take small steps and follow well-worn paths.” The “easier case” Jerry argued, is to argue for live audio feed which “would move the ball closer to the goal of video in the courtroom.” Jerry finished his admonition to me not to “clobber” the Court by noting that the slow approach was adopted by Justice Ginsburg for gender equality, the NAACP for Jim Crow, and Justice Kennedy for gay rights. He didn’t think we should push for “one giant leap.”

I understand and sympathize with these arguments, especially as I made similar ones publicly in the same-sex marriage cases--urging the Court to decide Windsor but wait a few years before deciding the validity of state same-sex marriage laws--and I have argued that Roe v. Wade was too much too fast. But the issue of cameras in Court is different. There will be no backlash, except maybe from the Justices, to allowing cameras in the Court, and unlike the examples provide by Jerry, we have years and years of experience with cameras in courtrooms, including the highest courts of the land in Canada, Brazil, and the UK, We don’t need to take baby steps to figure out if this is a good idea because it has already been done. The fights for same-sex marriage, gender equality, and desegregation in the South are not remotely similar.

In 2017, with a showdown between the President and the Court brewing, and abundant evidence that the American people want to watch their government on television, allowing cameras in the Court should be an easy decision for the Justices to make. There is no reason to wait any longer. The Court should permit cameras in their already open proceedings as fast as C-Span can put them there.

Friday, June 16, 2017

Opposition With and Without Impeachment

by Neil H. Buchanan

We cannot know how much additional damaging information about Donald Trump and his people will emerge, adding to the already overwhelming case for removing him from office.  And we certainly do not know whether that new information will be bad enough to send some Republicans into the impeach-convict-remove camp.

It is notable that a former Republican congressman, Bob Inglis of South Carolina, who was a prime mover in the Clinton impeachment, recently wrote that the charges against Trump are more serious than the Republicans' case against Bill Clinton.

Inglis also offered an explanation as to why the Republicans are not (yet) rebelling against Trump: They are too cowed by the right-wing echo chamber.  Or, as Inglis put it more pointedly: "The difference, now, is the presence of sycophantic media."  That certainly captures what is going on.

In any case, we know that Trump's own statements -- whether or not one believes James Comey's compelling testimony or thinks that Jefferson Sessions was lying to his former Senate colleagues -- already make an easy case for impeachment.  Beyond Inglis's explanation, why has this not been enough to move at least a few Republicans away from Trump?

Thursday, June 15, 2017

Trump Emoluments Argument Mirrors His "Just a Hope" Comey Defense

by Michael Dorf

(cross-posted on Take Care)

The last week saw important developments with respect to Donald Trump's ongoing confrontation with the Constitution's Foreign Emoluments Clause. First, the Department of Justice (DOJ) filed a motion to dismiss the lawsuit brought by Citizens for Responsibility and Ethics in Washington (CREW) and others against President Trump. The government argues in its supporting memorandum that the plaintiffs lack standing because they have not been injured and that even if they have been injured, they are not within the zone of interest protected by the Emoluments Clause. In prior essays, I have argued that under the existing precedents, CREW has standing and so do the additional plaintiffs alleging that Trump's violation of the Emoluments Clauses redirects business away from them or their employers and thus injures them. The government's arguments for dismissal do not persuade me otherwise.

But even if the government's argument against standing by CREW and the competitor plaintiffs were persuasive, two new lawsuits filed this week--one by the State of Maryland and the District of Columbia, the other (initially) by 30 Senators and 166 Representatives--would make apparent the true nature of the DOJ argument on standing. (As noted here, the MD/DC lawsuit relies on the domestic Emoluments Clause as well as the foreign Emoluments Clause but for simplicity, I'll focus mostly on the foreign one.)

If, as we can expect, the DOJ argues that there is no standing in the new suits, then it will be clear that the DOJ believes that nobody can sue to enforce the Emoluments Clause, even to contest blatant violations. In other words, DOJ will essentially be taking the position that the Emoluments Clause is non-justiciable. Indeed, without expressly invoking the political question doctrine, the DOJ strongly hints at that position in the memo in support of the motion to dismiss in CREW, stating that "Congress is far better equipped than the courts to address whether particular arrangements violate the Clause."

Yet as Richard Primus noted last week, deeming the Emoluments Clause non-justiciable would be directly contrary to its text, which forbids the president from receiving foreign Emoluments unless Congress consents to them. The DOJ's approach would allow the president to receive foreign Emoluments unless Congress disapproves of them--perhaps even requiring Congress to do so by a 2/3 majority in each house, in order to overcome a likely presidential veto. That reversal of the default rule would strip Congress of its power rather than protect it.

So much for threshold questions of justiciability. What about the merits? Here the DOJ has offered a superficially appealing argument that, upon inspection, proves no more substantial than a Trump tweet.