Fed Courts Exam 2019: Pharma Litigation and State Habeas

by Michael C. Dorf

Per my usual custom, I am posting the exam I administered to my Federal Courts students. It was an 8-hour open-book take-home. Blog readers should feel free to spend more (or less) time on it. Submit answers (which I won't grade) in Comments. I apologize that this exam isn't as funny as some of my others (though it does contain the obligatory Trump tweet, complete with misspellings).

Does Employment Division v. Smith Apply in Indian Country? Thoughts on a SCOTUS Ruling Finding Hunting Right Under 1868 Crow Treaty

by Michael C. Dorf

On Monday, in Herrera v. Wyoming, the Supreme Court ruled that an 1868 treaty between the Crow tribe and the US entitled a tribe member to hunt elk in violation of state law. The case divided the Court on mostly ideological grounds, with Justice Gorsuch breaking ranks to join the liberal wing in a 5-4 majority opinion authored by Justice Sotomayor. However, the actual substance of the disagreement was not ideological.

Justice Alito and the remaining conservatives dissented on the ground that a 1995 Tenth Circuit case involving the Crow had definitively resolved the issue, so that Herrera was bound under the doctrine of issue preclusion. Other than an aside deeming the majority's construction of the treaty "debatable," the dissent did not address the core issue. Meanwhile, the majority opinion is curious in a number of respects and raises an important question about general rules and exceptions.

Judge Mehta's Subpoena Ruling is a Tour de Force: SCOTUS Can Undo It Only Through Partisan Hackery

by Michael C. Dorf

On Monday, US District Court Judge Amit Mehta issued a thorough and persuasive opinion rejecting the arguments by President Trump's personal lawyers for an order invalidating a congressional subpoena for financial records that was issued to an accounting firm that has worked for Trump and his businesses. The next stop for the litigation will be the US Court of Appeals for the DC Circuit and thence the Supreme Court. As I'll explain, Judge Mehta's opinion makes clear that the law clearly favors Congress (really the House) in this dispute. That does not guarantee that Trump will ultimately lose. However, Trump can only prevail in the SCOTUS if the conservative majority engage in hypocritical partisan hackery.

Trump Is Part of A Scary Global Trend, But He Is Still a Bad Joke

by Neil H. Buchanan

There is a worrisome and puzzling trend, not merely among the punditocracy and politicians but even among journalists who purport to be neutral arbiters of the facts, to treat Donald Trump's reelection chances as not only strong but perhaps even insurmountable for Democrats.  Last week, I wrote a column decrying that trend, arguing that Trump's deep unpopularity -- and his unwillingness to do anything but feed the blood lust of his base -- all but guarantees that he will lose in 2020, probably by a large margin.

To be clear, even if my prediction is correct, I still believe that we will then face an existential constitutional struggle, because it is inconceivable that Trump will accept losing -- by any margin.  We might already be in the end stages of our constitutional democracy with no way to save it, even as we naively think that there is still a way back.  (Whatever else I might think about Joe Biden, I do admire his willingness to build a campaign around the idea that America is better than Trump and can be renewed.)  That possibility should be everyone's central concern.

In addition, I readily concede that my prediction could turn out to be wrong for a number of reasons.  Republican efforts to suppress the votes of minorities and young people will intensify.  The Democratic nominee might not be able to motivate her (or his) voters to turn out, although that seems highly unlikely.  The media could once again play along with a ridiculous smear job, painting the Democrat as corrupt or worse.  Trump supporters could physically block access to voting booths in Democratic areas.  And so on.

This might not, in other words, end well.  But today's question is how to think about Trump's fundamental weakness in a world in which people like him are becoming stronger and stronger.  He might be a buffoon, but he is merely one of many buffoons who seem to be having a good run.  Does that global perspective change how we should think about this?

John Bolton Wants a War With Iran. Trump Doesn't. So Why Did Trump Hire Bolton?

by Michael C. Dorf

Yesterday, President Trump tweeted: "If Iran wants to fight, that will be the official end of Iran.  Never threaten the United States again!" The saber rattling seems calculated to undercut the emerging view of Trump as the dovish good cop to National Security Adviser John Bolton's bad cop. After all, just a few days earlier, the Washington Post reported that Trump has been frustrated by the hawkish views of Bolton and Secretary of State Mike Pompeo, both of whom seem to be itching for a war with Iran.

Despite yesterday's tweet and Trump's denial of any "infighting," the WaPo report rings true. After all, Pompeo and especially Bolton have long been hawks on Iran, whereas Trump came to office exaggerating his past opposition to the Iraq War but genuinely seeming to disdain further commitments of US troops to war in the Middle East. It was one area where he seemed to outflank Hillary Clinton to her left, and sensibly so, even if Trump's primary motivation was backwards (chiefly aiming to save treasure and only secondarily hoping to avert bloodshed).

Given the difference in perspective, some tension was inevitable. So why did Trump select Pompeo and Bolton? I'll offer a few thoughts here, none of them especially reassuring.

Roe, Judicial Review, and the Myth of Abortion as a Constitutional Outlier

By Eric Segall

In Roe v. Wade, seven Supreme Court Justices signed on to an opinion detailing the substantial burdens on women and their families of abortion bans and balanced those harms against the states’ interest in the health of the mother and life of the fetus. They came up with the famous or infamous trimester approach which in practice resulted in a bifurcated regulation of state abortion laws. Prior to viability, states had little authority to regulate abortion while after viability states could ban all abortions subject to exceptions for the health and life of the mother. Eventually, Planned Parenthood v. Casey modified the law to allow regulations on abortion that do not amount to an undue burden on a woman’s right to choose, but complete bans were still unconstitutional until after viability.

There is a myth propounded by legal scholars, commentators, pundits, and even Supreme Court Justices that Roe as initially decided, and later Casey, are constitutional outliers. That, leaving aside the admittedly difficult policy implications triggered by the issue, the Court’s abortion jurisprudence was somehow constitutional interpretation at its worst. For example, Professor Michael Paulsen wrote that the problem with Roe “is that it has absolutely no basis in the text, structure, or history of the Constitution. No rule or principle of law fairly traceable to the text...structure, or ... historical understanding of an authoritative decision of the people, remotely supports the result reached in Roe. In terms of fair principles of constitutional interpretation, Roe is perhaps the least defensible major constitutional decision in the Supreme Court’s history.”

            

Similarly, Justice White dissenting in Roe said that “the Court engages not in constitutional interpretation, but in the unrestrained imposition of its own, extra-constitutional value preferences." And even the famous liberal and pro-choice constitutional law professor John Hart Ely famously said that Roe “is not constitutional law and gives almost no sense of an obligation to try to be.” I could reproduce hundreds of similar quotes concerning Roe and its allegedly illegitimate method of constitutional interpretation.

           

This criticism is utter nonsense. Roe and Casey may be right or wrong, or good or bad, but they are both typical examples of how the Court decides, has always decided, and will likely always decide, constitutional questions, just with larger stakes. No reasonable person can deny that requiring a woman to carry a fetus to term against her will is a serious denial of her personal freedom that carries substantial unwanted consequences. It may also be true that the states’ interest in the fetus’ right to life outweighs that infringement, but that difficult balancing of important and conflicting values is commonplace in constitutional law. As Dean Erwin Chemerinsky has said, “the desire for value-neutral judging in constitutional cases is an impossible quest because the need to balance competing interests is inescapable ….”

Trump Is an Accident, Not an Intimidating Force

by Neil H. Buchanan

A bit more than two months ago, the title of one of my columns asked: "Is the 2020 Election Going to Be An Easy Win for Anyone the Democrats Nominate?"  There, I made the case that Trump simply will not be able to break above his pathetic job approval numbers, if for no other reason than that he is not even trying to appeal to anyone but the forty percent of the country that has already quaffed his Kool-Aid.

It would, of course, be foolish for Democrats to take a win in 2020 for granted.  Setting aside my oft-stated belief that Trump will not peacefully leave the White House no matter how convincingly he loses next November 3, it is essential that Democrats not take anything for granted.  Republicans will continue to suppress the votes of young and nonwhite people, and Trump is even more shameless than the Republicans about sliming his opponents (which is quite an achievement).

Moreover, Democrats should have learned from 2016 that turnout is everything.  Hillary Clinton was by far the preferred choice of American voters, but millions of people used the (accurate) polls predicting her easy win as a reason not to bother helping her win.  Today, it is certainly wise for Democrats to keep each other on edge, lest they think that the ignoramus in the White House could never bumble onto another strange path to an electoral win.

But we are now looking at the downside of that vigilance.  Actually, two downsides.