The Roberts Court, First Amendment Fanaticism, and the Myth of Originalism

 By Eric Segall

I’m probably the most aggressive defender of the First Amendment. Most people might think that doesn’t quite fit with my jurisprudence in other areas.… People need to know that we’re not doing politics. We’re doing something different. We’re applying the law.

                                                                                            Chief Justice John Roberts

John Roberts became the Chief  Justice of the United States Supreme Court on September 29, 2005. This term will make the 15th anniversary of the Roberts Court. During that time some important constitutional doctrines stayed more or less the same (abortion and affirmative action) and others changed dramatically (the Spending Power,  the Second Amendment and voting rights). But by a large margin, the Roberts Court generally and the Chief personally have taken the first amendment's free speech clause and turned it into an aggressive tool to impose the Court's conservative values on the rest of us. As discussed below, the numbers are staggering and the consequences for our country immense. And virtually all of it has nothing at all to do with the original meaning of the United States Constitution.

Why Second-Degree Murder is the Maximum Charge for Derek Chauvin--and Some Thoughts on the Broader Issue of Gaps Between the Law and Public Understandings

 by Michael C. Dorf

Someone who is not a lawyer (but is super smart and very well educated) recently asked me why Derek Chauvin wasn't charged with first-degree murder, given the evidence that has been thus far presented making pretty clear to most observers (including both the questioner and me) that Chauvin intended an act--placing and keeping his knee on George Floyd's neck/throat--that he knew would likely lead to Floyd's death. Even if Chauvin did not originally intend to kill Floyd and even if he did not know at the outset that the course of action on which he was embarking would lead to Floyd's death, as the encounter progressed it would likely have come to Chauvin's attention that Floyd was in grave danger, and yet Chauvin persisted. Or at least so it seems a jury could reasonably conclude beyond a reasonable doubt that Chauvin acted with the kind of intent or knowledge sufficient to prove intentional murder.

And indeed, Chauvin does stand accused of intentional murder. It's just that under Minnesota law, intentional murder as such is considered second-degree murder. Minnesota defines first-degree murder as intentional murder that is also pre-meditated. (There are some other circumstances that can turn what would otherwise be second-degree murder into first-degree murder, but none are relevant here). A few minutes of research reveals the following explanation in the Minnesota cases (quotation marks and citations omitted):

A finding of premeditation does not require proof of extensive planning or preparation to kill, nor does it require any specific period of time for deliberation. The state, however, must prove that before the commission of the act but after the defendant formed the intent to kill some appreciable time passed during which the defendant considered, planned, or prepared to commit the act.

Based on that definition/explanation, it appears that the prosecutors in the Chauvin case made the right call to charge the defendant with second but not first-degree murder. My interest here is in the gap between the legislative classification and the public understanding, both with respect to the Minnesota murder laws and more broadly. My tentative view is that, other things being equal, the law ought to reflect common-sense intuitions.

Would Americans Object If Billionaires (Partially) Paid for Social Security?

by Neil H. Buchanan

Today, I thought I might take a short break from despairing about the Republicans' apparently unstoppable efforts to end constitutional democracy in the United States.  Thinking about substantive policy issues is a good palate cleanser, and I had the pleasure earlier this week of presenting some ideas about the American retirement system at the Tax Policy Workshop Series at Duke Law School (via Zoom, unfortunately).  The convenors, Professors Rich Schmalbeck and Larry Zelenak, were gracious hosts, and their twelve seminar students were engaged and offered thoughtful comments and questions.

One series of questions from the students has inspired me to write down a few thoughts about the nature of political buy-in for government programs.  In what some pundits are calling a breakthrough moment in the U.S., voters are at long last rejecting Ronald "government is not the solution to the problem; government is the problem" Reagan's toxic legacy in favor of President Biden's purportedly FDR-esque New New Deal.  Republicans are no longer spending political capital on efforts to privatize Social Security or even to repeal the Affordable Care Act (much less Medicare).  Can we now make positive changes to those programs in a way that maintains or even expands the public's buy-in?

In my first sentence above, I wrote that this column will be a vacation from worrying about the death of the American republic.  That means that the analysis here will proceed under the assumption that something resembling the normal political rules will continue to operate in the future.  In particular, that means assuming that wildly unpopular things will not be politically viable and that both parties will try to pursue at least arguably vote-getting policies.

 

Admittedly, even before the 2020 election and its nihilistic aftermath, Republicans spent years pursuing extremely unpopular policies (their flat-out rejection of even the most minimal gun control measures being the most obvious).  And now?  Yikes.  I thus concede up front that there will be something of a quaint air to this column, as I describe how to achieve widespread political support for a particular policy agenda.  Call me retro.

If Only Mitch McConnell Could Show Joe Manchin How to Foil Mitch McConnell

by Neil H. Buchanan

Although Republicans in 2021 have taken "performative politics" into uncharted territory (just ask Mr. Potato Head), politics has always been in large part about form and not substance.  The point is arguably best illustrated with an extreme counterexample.

 

In 2009-10, the Obama Administration committed what in hindsight looks like political malpractice by giving everyone a tax cut but designing it specifically so that it would be all but invisible.  Why?  Some convincing economic research suggested that many people are likely to save big chunks of a tax cut, whereas the entire point of the Obama stimulus plan was to get people to spend.  We did not want people saying, "Oh, I'm getting $300 from the government, so I'll stick that in the bank for a rainy day," or "I'll use it to pay off some debts."  Instead, the maximum impact would come from having a few extra dollars show up in every paycheck, which people would then spend without even thinking about it, goosing the economy.  The same logic further suggested that Obama could not brag about the money that he was adding to paychecks, because that would tip people off to the virtuous ruse.  Good economics, bad politics.

Often, politicians want to vote against bills that they actually favor (or vice versa).  Prior to the bloody political battles over the debt ceiling from 2011-16, for example, a smattering of politicians would often put on a big show of voting against occasional (and completely necessary) increases in the statutory debt limit.  Senator Barack Obama himself once did so, accompanied by an operatic denunciation of the (nonexistent) evils of the national debt.  Obama knew full well that the increase would pass, but he also knew that he (an obscure Freshman in the U.S. Senate) could get some press by promoting himself as a deficit scold.

Sometimes, people paint themselves into a corner, repeating again and again something like, say, "Read my lips.  No new taxes!"  Unlike George H.W. Bush, however, most politicians apparently believe that a foolish consistency is the path to political success.  What do we do when a politician makes a very public commitment to a foolish position and would be embarrassed to be seen as a flip-flopper?  Enter Senator Joe Manchin.

GOP Obstructionism's Tragic Results

 by Michael C. Dorf

The For the People Act (H.R. 1)--a bill that would expand voting rights, curtail various state-level measures to disenfranchise minority and urban voters, restrict partisan gerrymandering, reform campaign finance, and more--passed the House of Representatives last month without a single Republican vote of "yea." Its fate in the Senate looks dubious, because unlike the American Rescue Plan Act that Congress passed last month, HR1 is not a budget measure that can be accomplished via the Reconciliation procedure--which requires only a simple majority to end debate. HR1 would need to garner support for ending debate from at least ten Republican Senators, which is not going to happen, or would need all fifty Democrats to change the cloture rule in some way. I'll have more to say about the filibuster in the coming weeks and months, but today I want to explore an especially pernicious effect of the unified Republican opposition to popular spending measures. To get there, I'll start with the calculations on the Democratic side.

Race, Caste, and the Myth of American Exceptionalism

 By Eric Segall

Isabel Wilkerson’s book Caste: The Origins of our Discontent, has made a huge impact on the study of race in America. When it was published in 2020, the New York Times gushed that it was an “instant American classic and almost certainly the keynote nonfiction book of the American century thus far.” Most other reviewers agreed.

Wilkerson compares American slavery and Jim Crow to India’s Caste system as well as the Nazis’ treatment of the Jews. Although the comparisons are far from perfect, the analogies still reveal important truths about America both yesterday and today.

The book’s greatest strength is its beautiful prose describing almost unimaginable evil. Wilkerson’s descriptions of India and Germany are dramatic enough, but the stories she recounts of American slavery, lynching, segregation, and even modern-day caste (read racial) prejudice are brutal. Wilkerson’s fluid, conversational, storytelling is simply mesmerizing.

But there is much more to Caste than the horrific recounting of terrible treatments by the “dominant caste” of the “subordinate caste.”  Wilkerson wants the reader to understand Americans’ historic and present-day racism in the context of what she thinks is a more accurate and broader idea, caste, which she defines as follows:

A caste system is an artificial construction, a fixed and embedded ranking of human value that sets the presumed supremacy of one group against the presumed inferiority of other groups on the basis of ancestry and often immutable traits, traits that would be neutral in the abstract but are ascribed life-and-death meaning in a hierarchy favoring the dominant caste whose forebears designed it. A caste system uses rigid, often arbitrary boundaries to keep the ranked groupings apart, distinct from one another and in their assigned place.

Wilkerson goes out of her way to distinguish naked racism from the all-too present desire among the dominant caste to subjugate other people. This is a controversial argument but not the subject of this essay. Instead, I want to focus on the parts of the book describing and accounting for pure American evil. More than anything else, Caste should demolish the myth of American exceptionalism.

How Do We Defeat Demagogues?

by Neil H. Buchanan

Demagoguery is hardly a new problem.  Even so, it waxes and wanes in different places at different times, and the political right in the United States is now in the midst of a full-on embrace of the worst excesses of demagogic hate-mongering.  Can it be defeated?  Not completely, of course, but it should be possible to minimize its damage and send it back into hibernation.

I hope that that is true, in any case.  The problem with demagogues is not merely that they can convince surprising numbers of people to believe harmful nonsense in order to win votes.  The worst kinds of demagogues parlay their initial success by abusing their power in ways that will make them immune to future challenges.  Some demagogues are so popular that the public largely supports their efforts to subvert the political system.  Even they, however, are risk-averse enough to lock down the system to protect themselves from any changes in public sentiment -- not only the possibility of a truly democratic uprising but also the emergence of a rival with even stronger demagogic skills.

Donald Trump is one of the class of demagogues who are never popular with a majority of the people.  Even so, someone in his position knows that if he can stay in power long enough to break the system, being unpopular will no longer matter.

My main purpose today, however, is not to analyze the staying power of demagogues but to note two different styles of demagoguery.  Surprisingly, it turns out that Trump is in some ways the less interesting (but also the less common) of the two.  This inquiry is inspired by a comment on last Friday's Dorf on Law column, where I discussed Ted Cruz's peculiar form of demagoguery.  A reader asked: "This blog post was fascinating. But I have to ask: Now that you have diagnosed Cruz ('style debater'), is there a treatment or cure?"  Good question.