The Electoral-Industrial Complex and Shiny Distractions

by Neil H. Buchanan

 

This has been one of the more active weeks of the 2022 midterm election season, with primaries held in key states and pundits reading the tea leaves and offering hot takes on what it all means.  Will Trump's endorsed candidates win?  Mostly yes, but not for any reasons that add up to a lesson of any significance.  Are insurrectionists and election deniers doing well?  Again yes, because that is the reality of Republican politics this year.  I guess it would be biggish news if the craziest of the crazies were losing in significant numbers, but mostly there is not much interesting happening.

Even so, there are people who are both professionally obligated and clearly personally invested in making this all seem breathlessly important.  Unlike so many things in American life in the 21st Century, that is very much an all-sides-do-it phenomenon.  Almost completely empty horse-race coverage dominates American political discourse, but the deeper problem is that the people who spend their time talking about it have every incentive to pretend that what is truly happening is not happening.  What is happening?

 

In Vitro Fertilization and Dobbs

by Sherry F. Colb

As readers know, I have spent the last few weeks identifying the many ugly features of Justice Alito's (SA's) draft opinion in Dobbs v. Jackson Women’s Health Org, and there is much left to identify. But I want to turn in this post to a topic that has not received much airtime either in the Dobbs opinion or among those worried about the impact of the decision approving laws that force women to remain pregnant and give birth against their will. That topic is in vitro fertilization. The Court seemed to ignore it, and with some notable exceptions (like Senator Tammy Duckworth), public debate has mostly focused on other issues.

Yet the decision in Dobbs virtually guarantees the government's authority to prohibit IVF.  After explaining why I draw that inference, I will offer my account of why neither SA nor the rest of the Court is interested in enabling those who would prohibit IVF.

As a Matter of First Impression, Should Free Speech Protect the Right to Protest at Homes?

 by Michael C. Dorf

My latest Verdict column addresses the legal and strategic questions surrounding protests outside the homes of justices, judges, and other public officials. While recognizing the utter hypocrisy of the likes of insurrectionist-adjacent Josh Hawley calling for peaceful protesters to be prosecuted and that the issue could distract from the much larger looming disaster for American women as SCOTUS prepares to overrule the right to abortion, I nonetheless regard the questions as somewhat difficult. Here I want to step back a bit and consider the free speech question without the overhang of existing constitutional doctrine--especially the 1988 SCOTUS ruling in Frisby v. Schultz.

As I note in the column, Frisby found that the public have a right to peaceful protest in residential neighborhoods but not to engage in "targeted picketing"--i.e., protesting at length in front of any particular home. Is that the right line? Let's start from scratch.

Rational Basis Scrutiny?

by Sherry F. Colb

In his lengthy draft opinion overruling Roe v. Wade and Planned Parenthood v. Casey, Justice Samuel Alito (SA) does a number of things that add insult to injury. I have accordingly criticized SA's opinion here, here, here, and here, rather than just saying "Alito is a misogynist creep who turned back the clock a half century" and calling it a day. In this post, I will focus on the slap in women's faces that SA achieves by ruling that prohibitions against abortion trigger "rational basis" scrutiny.

Rational Basis

The first thing to note is that every law, however innocuous, must survive rational basis scrutiny if challenged under the Fourteenth Amendment Due Process Clause (as well as the Equal Protection Clause). A law, for instance, that requires drivers to signal before a lane change would, if challenged, have to undergo rational basis scrutiny (RBS). RBS, in turn, demands that the law at issue serve some legitimate purpose. Many have characterized RBS as toothless because only a ridiculous law that does not, even hypothetically, promote a legitimate objective fails RBS. Strict scrutiny, by contrast, demands that the actual purpose of a law (not just a hypothetical goal) promotes a compelling governmental interest and does so in a way that is narrowly tailored to the compelling interest and therefore neither over-inclusive nor under-inclusive with respect to that purpose. Limits directed at the freedom of speech and the right to marry must survive strict scrutiny, which most laws fail to satisfy.

A Few Very Hard Questions About Religion and the Court

By Eric Segall

A number of years ago I sat on a long plane ride next to an orthodox Jewish man. We struck up a conversation and found out that we each had three children. I have three daughters while he told me he had two daughters and a son. When I told him I was a law professor, he told me with delight that both of his sons had expressed some interest in going to law school. I asked him about his daughter and he said that she would, of course, be a wife and mother and take care of the home. I expressed surprise at this (naive I know), and asked him what his teen daughter thought about these differing expectations based on gender. The man said that she didn't have a choice but in any event his daughter was quite comfortable with this life plan. I asked him if I could speak freely and he kindly responded in the affirmative. I asked him how he could possibly justify limiting his daughter this way especially in light of how proud he sounded about his sons wanting to be lawyers. His response was that this is the way they live, it works, and he saw no need to alter this lifestyle for his daughter.

Here is my question: if this man were nominated to be a federal judge, should his views on gender disqualify him from the position?

Before turning to that question, let's agree on one thing. A federal judicial nominee who in a confirmation hearing testified that he did not think women should be CEO's, Senators, lawyers, or bankers because their proper place is in the home and that we would all be better off with more precise gender roles would not be confirmed. 

Does the calculus change if the nominee testifies exactly the same way but says his views are based on sincere religious faith?

Hold that question.

Justice Aborted

 by Sherry F. Colb

Justice Samuel Alito (SA) has given us commentators a lot to criticize in the days following the leak of his draft opinion overturning Roe v. Wade and Planned Parenthood v. Casey. In this post, I want to focus on a phrase he uses in the draft: "aborted fetuses." Because the Movement for Forced-Pregnancy-and-Birth has regularly used this phrase (along with the meaningless propaganda term "abortion on demand"), it might sound like a proper usage, but I would contend that it is not. We abort a process that has just begun or that is in progress. We do not "abort" the endpoint of the process. To say "aborted fetuses" is to pretend that there is no process.

So what? you might ask. The Court is approving of reproductive servitude for women, including victims of rape and incest, and I am nitpicking about phraseology? I will now explain why the phrase that SA uses matters a lot.

Normality and Increasing Awfulness -- Why Post-Roe Politics Will Not Save Democracy

by Neil H. Buchanan

Even the most casual reader of Dorf on Law is, I suspect, immediately struck by the pessimism infusing much of what we publish here.  The other day, I received an email from Professor Dorf under the subject line: "Our blog posts -- in cartoon form," providing a link to the latest from the indispensable satirist Tom Tomorrow.  Mr. Tomorrow (?) is capable of capturing in only six cartoon panels what a gifted writer would need at least six thousand words to convey (and that I would eventually cover in 15,000 words).

Misery loves company, and it is oddly heartening to see others who are as pessimistic as I am.  Maybe that says something about me, but in any case, I have lately been trying to think -- on (what I hope is) a deeper level -- about the sources of our well founded pessimism.  That is, much of my writing over the last several years has been a matter of describing the political mechanics that are in the process of killing our constitutional democracy.  But those mechanical processes have existed for a long time and are ultimately run by people.  The people who run them, however, are doing so in increasingly corrupt and shameless ways.  Why the change?

 

People tend to talk about "the new normal" of American politics, which allows us to contrast the current situation with the shattered norms of the past.  We also need to think about what has caused so many people not to care or even seem to notice that everything is different.  Unlike most of our conversations about this country's politics, this is truly a situation in which both parties are to blame -- but in very different ways.