Monday, January 25, 2021

The Trump Era is Over: Prepare for the Supreme Court’s Conservative Onslaught

 By Eric Segall

The Trump Administration is finally over, and the Biden Administration will be able to undo some of the great damage done by its predecessor. For example, Trump’s irrational rule requiring women to purchase medical abortion pills in person, overruled by a federal judge but then reinstated by the Supreme Court, will almost certainly be reversed by Biden’s Department of Health and Human Services. There are a myriad of other executive branch decisions and regulations that Biden can, over time, reverse.

But there is one important Trump legacy the new President will not be able to change--the installing of three ultra conservative Justices who along with Chief Justice Roberts and Justices Thomas and Alito, will, absent serious Court reform, overrule important legislation for decades or more. This six-three GOP Court may be the most conservative one since before the New Deal. I detail below what to expect from the Roberts Courts in the next few years and then suggest a few desirable, but highly unlikely, fixes.

Friday, January 22, 2021

A Digression on the History of the Nazis, Legal Fig Leaves, and Lessons for the United States

by Neil H. Buchanan

In a Verdict column last week, I dissected the utter lawlessness of Republican Senator Josh Hawley's attack on the 2020 election results.  Along the way, I returned to a concept that I have called "legalistic lawlessness," which is the socially presentable alternative to openly thuggish autocracy.  In that dressed-up version, the raw power of the autocratic regime is given legal cover, which has the effect of giving people of good conscience -- especially lawyers and judges -- a way to avoid confronting their own complicity in the brutal, antidemocratic actions of the tyrant: "I'm just following the law!"

Drawing from one of the two or three most notorious historical examples of a murderous national government taking refuge behind the cover of its own unjust laws, I wrote:
"[I]t feels a lot better to judges and legislators to say that what they are doing is legitimate. The Nazis passed laws that made the Holocaust not merely legal but mandatory. In the United States, in addition to the fully legal institution of slavery, we have had legal regimes that justified or ignored lynchings, literacy tests, forced sterilizations, and more."
As good luck would have it, one of Verdict's frequent readers is a retired German jurist who has contacted me in the past about my writings.  Born in the mid-1930's, this gentleman is unfailingly pleasant and deeply engaged with ideas.  In response to my comment about the Nazi regime, he contacted me with a friendly correction, which I found so fascinating that I want to reproduce it here:

Thursday, January 21, 2021

Post-Trump Republicans as the Post-Stalin Politburo: Autocracy Without the Cult of Personality

by Neil H. Buchanan
Today is the day on which I published the Verdict column that I feared I might never be able to write, acknowledging that my longstanding prediction that Donald Trump would never leave the White House turned out to be wrong.  Gloriously, wonderfully wrong.  Nothing that I have written over the last four-plus years was at all implausible, and on many days a horrible outcome seemed all but a lock.  History took a different turn, however, and that is good for the future of humanity.

Predicting that Trump and the Republicans would steal the 2020 election and then install what would effectively be a dictatorship (while maintaining the false trappings of democracy) was not my only mistaken prediction, of course.  I also wrote, for example, that Trump would both try to pardon himself and resign a day early to get Mike Pence to pardon him as an insurance policy.
Because of the last, deadly gasp of Trumpism's ugliest manifestations on January 6, however, Trump apparently decided that it would be worse for him to try to pardon himself, and he did not trust Pence to pardon him, either.  No one could have predicted that turn of events, however, so that was a matter of Trump overplaying his losing hand and finally facing some of the consequences of doing so.

Readers of today's Verdict column will find, however, that I am anything but optimistic about the nearly-immediate future of American constitutionalism.  Although I have long tied my predictions of the end of true democracy and the rule of law to the toxic presence of Trump, I argue in that new column that Trump has inadvertently pointed the way for Republicans to complete an anti-democratic coup in the very near future.

The question is, what would such a violation of our most basic political commitments look like?  Does it require Trump or someone like him to lead the way into the darkness?

Wednesday, January 20, 2021

Free Speech, Due Process, and Other Constitutional Limits in Senate Impeachment Trials

by Michael C. Dorf 

[**Updated to acknowledge two articles I neglected to cite in the initial version:]

After four years that felt like four lifetimes and a post-election eleven weeks that felt like eleven years, Inauguration Day is finally here. My new Verdict column addresses one of the challenges that will now confront President Biden and other rational Americans: the fact that so many people believe in dangerous nonsense. I suggest that the reasons for such beliefs are pretty deeply rooted in human psychology. The political power of conspiracy theorists and the craven politicians who do their bidding might not derail the Biden legislative agenda, but the conspiracy-theory-believing Americans themselves will make it harder to accomplish some of the urgent tasks that require public buy-in.

Now I want to shift gears and discuss the upcoming Trump Senate impeachment trial--which is being described by some as another potential obstacle to the Biden agenda, if for no other reason than that it will distract the Senate from other business. I believe that particular obstacle can and should be overcome by expeditious scheduling by soon-to-be-Majority Leader Schumer. That said, interesting constitutional questions await in the Senate impeachment trial.

In a recent essay, I offered three reasons why the free-speech defense suggested by some commentators should not avail Trump in his Senate impeachment trial: (1) Non-criminal conduct can be the basis for impeachment, so it does not matter whether Trump's speech at the January 6 rally preceding the storming of the Capitol and the course of conduct that led up to it amounted to a crime; (2) Trump's goal in fomenting violence may have been to create a pretext for martial law and the delay or cancellation of Biden's inauguration, which would be a separate ground for impeachment; and (3) in any event, Trump did commit the crime of incitement of violence, which, applying the Brandenburg test, was not shielded by the First Amendment.

In response to my prior essay, a colleague asked me an interesting set of questions about the relation between (1) and (3). Granting that non-criminal conduct can be the basis for impeachment, the colleague asked, is the fact (or not) of First Amendment protection irrelevant to impeachability? More broadly, to what extent, if any, do constitutional rights apply in a Senate impeachment trial? I'll address both of those questions, along with some further wrinkles involving the 1993 SCOTUS decision in the Judge Walter Nixon Case, which forecloses judicial review of impeachment procedures.

Tuesday, January 19, 2021

What Law School Couldn't Do For Josh Hawley and Ted Cruz

By Diane Klein

The addition of mandatory legal ethics instruction in ABA-accredited law schools is one of the lasting legacies of Watergate. Recent events at the Capitol (and if we're honest, throughout the Trump Administration) demonstrate conclusively that this reform was a complete failure. If that sounds like an overstatement, we might do well to ask why it was ever imagined that instruction in professional ethics would somehow infuse law students with the civic virtue of respect for the rule of law, or somehow prevent them from turning out to be the sort of bad people who countenance or even encourage lying and violence in order to achieve their personal or political ends. No two-unit course in law school (even coupled with a 60-question multiple choice test) could ever do that - as has been known since at least the time of Aristotle.

Monday, January 18, 2021

Rudy Giuliani's (Ridiculous) "True Enough" Defense of Trump

by Michael C. Dorf

Dr. Martin Luther King, Jr., was born on January 15, 1929. Today is the official annual day of recognition of his birth. In past years, I have sometimes posted MLK Day essays on a theme related to Dr. King's life and work. I considered doing so today. Following a year that saw both massive protests for racial justice and political violence that included expressly racist symbols and language, there would certainly be no shortage of material. But I find myself too unsettled in my thoughts about such matters to do so today (although what I say will touch upon race and racism in one particular). I am confident that interested readers will find no shortage of such reflections elsewhere.

Accordingly, and with apologies for the fact that doing so does not quite match the occasion, I offer some commentary on the latest nonsense to ooze forth from the brain of the man who was once "America's Mayor."

Friday, January 15, 2021

Ignoring Right-Wing Terrorism Led Us to This Dangerous Situation

by Neil H. Buchanan

This country has been downplaying and even ignoring the threat of domestic terrorism for decades.  I concede that this is a step up from the previous decades of state-sponsored racist terrorism, but looking the other way while non-state actors (and all too many state actors "going rogue") do their worst to vulnerable populations amounts to little more than outsourcing what spy novelists call the "wetwork" to private contractors.

To be sure, things did become less bad after the end of the Jim Crow era.  I do not have the statistics at hand, but I expect that they would show that the indiscriminate killing of nonwhites has gone down, hopefully precipitously.  Even so, the fundamental point of the Black Lives Matter movement, indeed the reason for the existence of the entire panoply of civil rights groups, is that we can see with our own eyes that America in the third decade of the twenty-first century still treats non-White lives too often as disposable.  What now?