Fake News, Facebook, and Free Speech

by Michael Dorf

My Cornell Government Department colleague Sid Tarrow and I are in the process of putting the finishing touches on a draft of a paper that puts the emergence of fake news in historical perspective, while examining the role that Supreme Court free speech case law and state law play in simultaneously discouraging investigative journalism and encouraging fake news. I'll have more to say about that paper when we are ready to release the draft.

The paper with Prof. Tarrow describes the legal, technological, and cultural forces that give rise to fake news but does not propose a policy response or evaluate others' proposed responses. In this post, I want to offer a few thoughts on one of the responses to fake news: efforts by social media websites, especially Facebook, to identify fake news as fake.

Efforts to label fake news fake raise potential free speech objections. They don't raise First Amendment objections, obviously, because Facebook is not the government, and so the First Amendment doesn't apply to it. However, free speech liberals (like yours truly) have reason to care about the effects of actions by private actors on free speech. For example, there are particular institutions--such as private colleges and universities--that rightly adopt First Amendment or First Amendment-like rules and standards to govern themselves.

More broadly, at least since the Progressive Era, many liberals (e.g., Louis Brandeis) have worried that large private firms can exercise power over the lives of individuals that is roughly analogous to the power that government exercises over them and that therefore constitutional norms ought to be extended to such firms. Typically, the extension comes by way of statute. We might think of anti-discrimination law as an example of this phenomenon--extending something like constitutional equal protection norms to private actors to whom the Constitution does not apply of its own force.

One can quibble at the border about which firms ought to be subject to quasi-constitutional norms. Debates about whether and when religiously scrupled business owners ought to be exempt from various public norms raise such line-drawing questions. Seen through this lens, the individual proprietor running a photography studio or bakery has a better claim to an exemption than does the billionaire family running a giant chain of retail stores--because the latter exercises power over its employees much more analogous to the power exercised by governments. Ironically, the pair of cases just linked denies an exemption to the tiny local business while granting one to the giant retailer.

Where Facebook falls for purposes of the application of public norms is a harder question than it might at first appear. Of course, Facebook is enormous. Many, many more people use Facebook than are employed by Hobby Lobby. However, use of Facebook is entirely voluntary. Facebook users are not vulnerable to Facebook in the way that Hobby Lobby employees or employees of other large firms are vulnerable to their employers.

Moreover, the application of free speech norms by the government to private firms would raise First Amendment questions, because the firms do not merely have an influence on the free speech of their users; they are speakers themselves. Thus, in 1974, in Miami Herald v. Tornillo, the Supreme Court invalidated a state "right of reply" statute on the ground that it limited the editorial discretion of a private newspaper. To be sure, Miami Herald was a departure from the earlier ruling in Red Lion v. FCC, which upheld the so-called "fairness doctrine" as applied to a radio station on the ground that the public airwaves are scarce and thus subject to regulation. But Red Lion has been vigorously criticized on the ground that the the public airwaves are no more scarce than the resources on which newspapers depend and that, in any event, scarcity justifies government licensing but not necessarily content regulation. Red Lion has not been much followed in the years since Miami Herald.

In any event, no one is seriously proposing that the government require Facebook to combat fake news. The question du jour is what steps, if any, Facebook should voluntarily undertake to combat fake news. Facebook is acting in much the way that private colleges and universities act when they voluntarily undertake to promote their own values by adopting--or in certain circumstances, not adopting--First Amendment rules and standards.

In particular, it appears that Facebook is experimenting with a system of labeling fake news fake, by having groups including "Snopes, PolitiFact, The Associated Press, FactCheck.org and ABC News" designate particular stories as "disputed."

This effort seems unlikely to be very effective because some of the very forces that give rise to fake news--ideological polarization, distrust of "elite" authority, and various psychological phenomena such as confirmation bias and motivated reasoning--will beset Facebook's attempt to combat fake news. Consider the fact that Snopes is itself the victim of fake news by right-wingers who claim that Snopes and other fact-checking websites are propagators of left-wing fake news. Indeed, it was probably inevitable that not long after the term "fake news" entered the vernacular, right-wingers would accuse the hated and supposedly left-leaning "mainstream media" of being the real bastion of fake news. In the current environment, a designation of "disputed" from one of the fact-checking watchdogs could come to be regarded by right-wingers as a badge of validation.

Another risk is that right-leaning Facebook users could come to regard Facebook itself as part of the vast left-wing fact-checking conspiracy and migrate away from Facebook to some other social media site. This is obviously a threat to Facebook's bottom line, but it is also potentially bad for public discourse. Already, Facebook users tend to self-segregate into political echo chambers, but there is at least some crossover. People's social networks are sufficiently complex that they usually include others who are not ideologically in lockstep. Those endless Facebook threads in which you argue with your Trump-supporting friends of friends are bad for your mental health but probably good for democracy, insofar as they expose all participants to views they don't generally seek out.

Suppose, however, that Facebook execs conclude that, all things considered, having fact checkers label particular stories "disputed" would reduce the prevalence of fake news--not just on Facebook but in general. Might there still be reasons for Facebook not to proceed with the plan?

One way to think about the question is to ask whether the move, if undertaken by the government, would violate the First Amendment. Suppose that Facebook were government-owned. Would it violate the First Amendment for GovernmentFacebook to label various stories "disputed"?

The answer might depend on how this were accomplished. If the "disputed" label were somehow electronically attached to the stories themselves, that could be seen as compelled speech in violation of cases like Wooley v. Maynard and West Virginia State Board of Ed. v. Barnette. The government has some latitude to compel commercial speech (think about food labeling requirements), but much of what would end up bearing the "disputed" label would be political and other non-commercial speech.

Still, maybe the government could require the application of the "disputed" label without running afoul of the First Amendment. The best precedent for that conclusion is Meese v. Keene, in which the Supreme Court upheld a federal law that required that films and other materials made by foreign governments be labeled "propaganda" when shown in the U.S. The particular films were documentaries on acid rain and nuclear war made by the National Film Board of Canada. The majority opinion relied on the fact that the federal statute defined "propaganda" to refer to materials produced by foreign governments, even if true and of high quality, rather than carrying a pejorative connotation--even though the film's distributor argued that people would predictably infer the pejorative meaning. Based on Meese v. Keene, one might conclude that a government label of "disputed"--if that term were properly defined--did not infringe the free speech rights of the people to whose speech it were applied.

However, even if that's what Meese v. Keene implies, I would urge Facebook to disavow it. Meese v. Keene itself is arguably wrong (as Justice Blackmun argued in a powerful dissent, joined by Justices Brennan and Marshall). And in any event, when a private firm like Facebook decides to adopt First Amendment principles as its own, it need not adopt them in lockstep with Supreme Court jurisprudence. Whether or not Meese v. Keene is rightly decided, it surely violates the spirit of the First Amendment for the government to be labeling some films as propaganda.

Now one might think that there is a crucial difference between the propaganda label in Meese v. Keene and the proposed "disputed" label: Facebook would only apply the "disputed" label to stories that had been judged fake news by independent third party fact checkers, whereas the government labeled even truthful speech propaganda.

That is a vital distinction, of course, but it is important to think about the big picture. I am persuaded by my colleague Steve Shiffrin that the most fundamental aspect of freedom of speech should be protection for the right to dissent. A government or giant social media company that has the power to label fake news "disputed" would be a tempting target for the powerful to co-opt for the purpose of stamping out dissent.

To give an example with which I (as a vegan) have some familiarity, consider the well documented arguments that dairy milk is harmful to human health (e.g., here and here), to say nothing of its impact on the natural environment and the cows and calves exploited and killed in the dairy industry. And yet, our government promotes dairy production and consumption. Such promotion could soon include a federal crackdown on speech. As reported in a recent press release decrying "fake milk," a bipartisan group of 25 members of Congress wrote to the FDA to demand that plant-based milks be barred from using the word "milk." Their letter referred to plant-based milks as "artificial" and "unable to match the nutritional makeup of the product they mimic." Which may be true, but only because the makers of the plant-based milk are understandably not trying to match the harmful nutritional makeup of dairy milk.

Can there be any doubt that the same dairy industry forces that lead members of Congress to call for FDA action to protect consumers from "fake milk" would call on Facebook to protect readers from learning the truth about dairy milk by labeling the materials identifying its true health, environmental, and moral costs as "fake news"? How many other powerful industries and interests would want the "disputed" label attached to information and viewpoints that they regard as dangerous?

As we enter the Trump era, protecting dissent will be more important then ever. Because efforts to label fake news fake pose a potential threat to dissent, they will probably do more harm than good. Fake news may be the price of free speech.

Do the North Carolina Legislature's Power-Stripping Laws Violate the Federal Constitution?

by Michael Dorf

My latest Verdict column discusses the two laws recently enacted by the Republican-dominated North Carolina legislature stripping the Democratic Governor-elect of some of the key powers enjoyed by the departing Republican Governor. One of the new laws also limits the jurisdiction of the state supreme court, which--not coincidentally--is about to have a Democratic majority. I mostly focus on potential challenges under state law, noting also that the law could be vulnerable to a federal challenge under the Voting Rights Act. Here I want to consider possible federal constitutional challenges.

I'll begin by assuming arguendo that the "real" rule in North Carolina is that Democratic governors have fewer powers than Republican governors. Below I relax that assumption, but for now, it will simplify the analysis to imagine that the law in North Carolina defines the powers of the governor as weaker for Democrats than for Republicans. Is that a violation of the federal Constitution? If so, what part?

As Prof. Buchanan noted in a post last week, one textually inviting challenge arises under the Guarantee Clause. By hobbling the Democratic governor, the legislature seems to be guaranteeing a big-R Republican government, not a small-r republican form of government. Yet, as he also notes, longstanding precedents going back to Luther v. Borden in 1849 render the Guarantee Clause non-justiciable. Although a couple of early 1990s opinions by Justice O'Connor (summarized in a footnote here) raised the possibility that Guarantee Clause claims might be justiciable after all, the current Supreme Court, to say nothing of the Supreme Court that will emerge after the next appointment, seems unlikely to be receptive to such a claim.

How then, might one challenge the actions of the North Carolina legislature under the federal Constitution? The Equal Protection Clause of the Fourteenth Amendment is a possibility, but political party affiliation has not heretofore been recognized as a suspect or semi-suspect classification. Without that, the legislation would be subject only to rational basis scrutiny, which it could probably satisfy based on the fig leaves of public-regarding justifications about the allocation of authority in North Carolina. Of course the legislature's claim that the governor needed to be reined in to protect the balance of powers in North Carolina does not reflect the true motivation for the legal changes, but under rational basis scrutiny, true motivation is typically irrelevant.

A better way to get to heightened scrutiny runs through the First Amendment (as made applicable to the states via the Fourteenth). Rutan v. Republican Party of Illinois and other SCOTUS cases prohibit government from discriminating based on political party affiliation in hiring and firing relatively low-level employees, based on the free speech rights of the employees. To be sure, Rutan and those other cases permit party affiliation to serve as a basis for selecting high-level officials, but presumably that's because such high-level officials carry out policies set by the elected officials--where persons of different parties can compete equally. There's no problem with a Republican governor considering only Republicans for his cabinet, but that's because we take for granted that Democrats as well as Republicans are entitled to run for the same office of governor.

One might object to what I've just proposed on the ground that making the powers of the governor the same regardless of whether the governor is a Republican or a Democrat is not a matter of the free speech of candidates; it's a matter of the basic ground rules of democracy. That concern, the objection continues, is simply the Guarantee Clause concern in disguise, and therefore any complaint about its violation should be non-justiciable.

I find this (hypothetical) objection not especially damning, because it was the very objection that was lodged by Justices Frankfurter and Harlan, dissenting in Baker v. Carr. In finding that challenges to legislative malapportionment under the Equal Protection Clause were nonetheless justiciable, the Baker majority did not overrule Luther, but it did indicate that the non-justiciability of Guarantee Clause claims was just that: a limit on the justiciability of claims under the Guarantee Clause, not a limit on the justiciability of claims that are brought under other constitutional principles simply because they challenge arrangements that also could be challenged (in a political forum) under the Guarantee Clause. Baker said, in effect, that Luther didn't apply to Equal Protection claims. Likewise, it wouldn't apply to First Amendment claims.

Another potential obstacle to a free speech challenge might build on the Supreme Court's 1997 ruling in Timmons v. Twin Cities Area New Party. There, the Court upheld a state ban on "fusion" candidacies (whereby a third party cross-endorses a major-party candidate). Fusion candidacies allow third parties to register support--and thus build to major-party status--without risking playing spoiler. In upholding the fusion ban, the Supreme Court credited states' asserted interest in "the stability of their political systems," which, "permits them to enact reasonable election regulations that may, in practice, favor the traditional two party system . . . and that temper the destabilizing effects of party splintering and excessive factionalism."

Well, if the state can favor the two-party system for "stability," why not a one-party system, which is even more stable? The short answer, of course, is that stability is not valued for its own sake. The state's interest in the two-party system is an interest in avoiding one-party rule. Although probably overstated in Timmons, the Court's underlying concern about "splintering and excessive factionalism" was undoubtedly meant to invoke the specter of Weimar Germany, where the splintering of political power among multiple parties allowed the Nazis to rise to power with initially only minority support. Accordingly, properly understood, Timmons cannot provide any support for the idea that a state's interest in stability warrants advantaging a single party.

Accordingly, I conclude that if the "real" law in North Carolina is "Republican governors get more power than Democratic governors," then that real law violates the First Amendment. But is that the real law in North Carolina? Perhaps the real law is actually best characterized at a higher level of abstraction as follows: Whenever any party dominates the legislature, that party can adjust the law so as to empower governors of its own party and to disempower governors of the other party. If that's the real law, then the real law doesn't discriminate against Democrats.

And in one obvious sense, the italicized proposition is the real law in North Carolina. The problem, however, is that the legislature has not just disempowered a Democratic governor. The legislature has changed the law in a variety of ways that lock in Republicans'  own power--especially with respect to the Board of Elections.

Challenges to that kind of action should be very reminiscent of Baker v. Carr itself. As most famously articulated and defended by the late great John Hart Ely, courts have the strongest justification for interfering with the outputs of legislation when those outputs undercut democratic representation itself, when, in Ely's terms (at pp. 101-04 of Democracy and Distrust), the "ins" write rules that help themselves to stay "in." That is an excellent description of what is going on in North Carolina.

Unfortunately, although Ely's justificatory account of representation-reinforcing judicial review was based on the foundation of Warren Court cases, later jurisprudence does not consistently make good on its promise. Most notoriously, the Court ruled in Vieth v. Jubelier that challenges to partisan gerrymandering are all but non-justiciable. ("All but" because Justice Kennedy, concurring in the judgment, left open the possibility that someone might some day propose a sufficiently definite standard for him to conclude that such a challenge did not pose a political question. No one has yet.) North Carolina's Republicans have taken full advantage through partisan gerrymandering of the state legislature and the state's congressional delegation.

Yet if challenges to partisan gerrymandering itself are non-justiciable, it does not follow that all challenges to state legislative practices that entrench the incumbent party are non-justiciable. Just as Baker rejected such a broad assertion with respect to Guarantee Clause claims and Equal Protection claims that challenge malapportionment, and just as I argued above that similar logic makes the nonjusticiability rule of Luther inapplicable to First Amendment claims, so too here, we could say that the rule of Vieth only applies to challenges to a particular kind of legislative entrenchment of the power of the "ins"--partisan gerrymandering. Accordingly, it is at least possible for a First Amendment challenge to the North Carolina power-stripping laws to get off the ground.

A Mindless Attack on Driverless Cars

by Neil H. Buchanan

At the end of a truly horrible year, any reason to avoid thinking about American politics is welcome.  For those of us who are public policy junkies, however, it is difficult to find topics that do not somehow eventually circle back around to our broken political system.  Happily, The New York Times recently gave us the gift of a truly terrible op-ed.

When I say that the op-ed in question is terrible, however, I mean that in the most fun sense possible.  There have always been bad op-eds, and some of them advance truly dangerous views.  Some, however, are so poorly reasoned that they are actually entertaining and even paradoxically thought-provoking.  And thus we have "Google Wants Driverless Cars, but Do We?"

The op-ed attacks driverless cars, or government support for driverless cars, or in any event something about driverless cars.  The author is identified as a lawyer who works for an automobile-oriented publication.  I know nothing about the author or her/his publication, so I approached the piece without expectations high or low (other than its having been published in The Times, which is hardly a guarantee of quality).

Moreover, I should emphasize that I welcome contrarian op-ed pieces.  Although I have been generally excited about the prospect of driverless cars, it is certainly true that there might be hidden costs or unexamined problems in this emerging technology.  We once thought that corn-based automotive fuel, aluminum siding, and Google Glasses were good ideas.  Skepticism is always in order.

But what The Times published was simply amusing in its emptiness.  We are first told that public policy has been favoring the development of driverless cars, "[a]nd yet this trend has never been voted on or discussed seriously by our politicians."  It is not clear how we would vote on any of this, but perhaps the idea is that people are not being skeptical enough about the technology.  The author offers no evidence that legislators and regulators have been failing to seriously and critically discuss the technology, but we can at least imagine that more discussion might be helpful.

What should we discuss?  The column begins with the complaint that the country's leaders seem to be flashing "a giant green light for an industry and the multitrillion-dollar investment it will represent, the cost largely to be borne by consumers and government," and it ends by asking: "Shouldn’t society have a say in what amounts to a public works project larger than the Interstate System of highways — run by and for private industry, but underwritten by taxpayers?"

Apparently, then, the central concern is that private companies are going to benefit from spending by consumers and the government.  I am the last person on Earth who would want to red-bait anyone, but I have to ask whether this author understands how capitalism works.  The point of every business is to succeed by offering products that consumers buy.  Even the most basic understanding of business starts with the idea that sellers need buyers.

But maybe the real complaint was about the government's role, not consumers'.  Why should the government spend money to do something that will ultimately make money for corporations?  This is the concern that motivates populist attacks on "corporate welfare," from the left and the right.  While it is certainly possible for politicians to engage in corrupt diversion of public funds, however, it is utter nonsense to suggest that the government should not be spending money on things that will lead to increased business profits.

Consider the interstate highways.  Trillions of dollars of public money have been spent on that formerly world-class system of roads, and who benefited?  Ford, General Motors, and Chrysler, not to mention foreign auto companies (many of whom produce cars in the U.S.) and some defunct companies that made money in their day.  What about Liberty Mutual, State Farm, and GEICO, all of whom make money from insuring the drivers and cars that fill the government's roads?

And let us not forget about ExxonMobil, Chevron, and the other oil companies that produce the fuel for those cars.  Or the steel companies, the tire companies, the auto glass companies, and the after-market auto parts companies.  We have also spent trillions of dollars on airports, only to see those nasty companies like United Airlines and Boeing make money off of the government and its citizens.

Indeed, any time the government does anything to invest in the economy -- or even when it merely performs its basic tasks of fighting crime, enforcing contracts, protecting private property, and so on -- private parties benefit.  That is the point of public investment, because we are hoping that the government's spending can set the stage for mutually beneficial exchanges between businesses and consumers.

In other words, the simple assertion that Google and other companies will benefit from government spending on tech-ready highways and related investments means nothing.  The internet itself was created by researchers (many working at state universities) using government grants, and now look how many companies are making money!

To try to bend over backward to find some value in the op-ed, however, maybe we should say that these false populist appeals were mere rhetorical excess.  Is the real concern that there are legitimate questions about the costs and benefits of driverless technology?

The author tries but fails to raise meaningful red flags.  Easily the worst argument is that driverless cars will be dangerous, because "[w]hen 1,700 people leave the New Jersey Turnpike at more or less the same moment, all headed for the same parking spot near the food court at the Vince Lombardi rest area, you don’t want to be there."  I have been there with people who are driving their own cars, and I do not want to be there again.

Driverless technology is, in fact, designed in large part to prevent the cascades of events that lead to exactly those types of pileups.  Following distances will be shortened, and the cars will be able to merge into exit lanes much more smoothly than is possible under current technology.  If too many cars want to do the same thing at the same time, at least they will not be driven by people who angrily try to cut off other drivers and block lanes.  And Google cars won't rubberneck.

The closest thing to a novel argument in the op-ed is the claim that there will be problems during the transition period when both driverless and traditional cars and trucks are on the same roads together.  "One of the claims made for autonomous cars is that they can be lighter, shedding heavy metal crash cells and expensive safety gear, like airbags, saving fuel. That’s great until the old-school pickup with the old-fashioned drunken driver T-bones your Google car."

It is not at all obvious that this would be worse on net than the current technology, but even if it is, the sensible conclusion is that cars and trucks will be designed and redesigned as evolving realities dictate.  We would not expect any driverless car manufacturer to design the same cars in 2020 as it will in 2030 or 2050.  As long as airbags are still needed, cars will include airbags (because the government, after serious discussions, can continue to mandate them).

I actually agree with the author that we should not view driverless cars as an alternative to public transportation, which means that we should still worry about increasing government funding for passenger rail and urban mass transit.  There might be a point at which those funding needs conflict, but right now we are talking about allowing and encouraging the technological advances that will make private transit safer, more economical, and better for the environment.  If that requires some public spending, I am all for it.

Of course, none of this should happen until the technology is ready.  It would be foolish to allow any technology to be available to the public without knowing that it is safe, but there is no evidence of a rush to put unsafe vehicles on the roads.  I am only partially willing to rely on companies' concerns about their reputations, but it seems clear that the companies pushing forward on driverless technology are keenly aware that the public will hold them to very high standards.

For example, even though airplane travel has long been much, much safer than auto travel, the media and the public snap to attention when a plane crashes.  Somehow, tens of thousands of deaths on the roads every year are not the same in the public mind as the dozens or hundreds of people who die in the thankfully rare downing of a commercial jet.  Similarly, the press will jump on every example of a person being killed in a driverless car.  Companies that want to make money on this new technology know that they are going to be held to different standards.

None of this is to say that politicians and regulators should simply let the companies write the rules.  Of course the companies will "balk at regulation," as the op-ed's author reports.  There is always a need for public policy to constrain the excesses and arrogance of people (an especially plentiful breed in Silicon Valley) who view themselves as the geniuses who will save humanity.  But again, vague assertions that politicians seem excited about driverless technology are hardly proof that they are going to roll over and allow Google to sell cars that are too light for current conditions.

Perhaps I am so willing to defend driverless cars because I recently experienced one of the textbook examples of the dangers of current cars: My car collided with a car that was moving through my blind spot.  Thankfully, neither of us were hurt, but the cars sustained a few thousand dollars worth of damage.  When driverless technology is ready, blind spots will no longer be a threat to public health.

When that day comes, as the author of the Times op-ed argues, some people's jobs will become obsolete.  We will need fewer auto body shops, fewer taxi drivers, and probably fewer automobile workers.  On the other hand, we also hire fewer ice truck deliverymen than we did a hundred years ago, and I cannot remember the last time I saw someone getting a high-paying job as a Betamax repair technician.

All of this merely means that the obvious and overwhelming prospective benefits of driverless cars will come with transition costs.  Luckily, the time necessary to develop the technology can also be used to plan the transition.

As unrelenting as my attack on this particular op-ed might have been, I have to end this column by repeating my initial comment that it is a relief to be able to write about something that is an important public policy issue but that does not have any obvious connection to the imminent death of constitutional democracy.

There are smart, motivated people who are making driverless technology inevitable.  Important questions need to be posed and answered along the way.  One mindless op-ed is not going to change that, but at least it reminds us that even poorly reasoned arguments can sometimes be a pleasant diversion.  Happy new year!

Top Ten SCOTUS Stories of 2016

By Eric Segall

History may well regard 2016 as one of the most significant years in the history of the United States Supreme Court. Here are my top ten SCOTUS stories of the year in reverse order of importance.

10) Merrick Garland Nominated to Fill Justice Scalia’s Seat:

Perhaps the most qualified person in the United States to be on the Supreme Court is nominated by President Obama to replace the late Justice Scalia. Merrick Garland is the Chief Judge of what is considered the second most important court in the land; he is known by Republicans and Democrats as a man of great integrity and character; and in some ways (like criminal procedure) he actually may be to the right of Justice Scalia. He may be the most moderate person President Obama could have nominated. But, as we all know, this story ends badly (see No. 1 most important story).

9)  One Person One Vote, Not One Voter One Vote

          

         In one of the most important but underreported cases of the year, the Supreme Court votes unanimously that one person one vote means one person one vote, not one voter one vote. The case was brought by Republicans in Texas who argued that only people who are eligible to vote should be counted for purposes of redistricting as opposed to people who live and breathe. The Court resoundingly said no by basically telling the Republicans to look up the word “democracy” in the dictionary. In his characteristic professional and understated style, Adam Liptak of the New York Times remarks that a contrary ruling would have “shifted political power from cities to rural areas, a move that would have benefited Republicans.”

8) Obamacare Contraception Dispute Sent Back to Lower Courts

          

          In by far the most perplexing case of the year, numerous not-for-profit religiously affiliated institutions hire famous lawyers to argue that asking for an exemption from Obamacare’s requirement that they provide cost-free contraception through their insurance plans violates their federal rights under something called RFRA because they have to actually fill out a form asking for the exemption that they are legally entitled to receive once they simply ask for it. Said lawyers make up an argument that asking for the exemption somehow unites their clients in the evil of trying to avoid unintended pregnancies. The Court, hopelessly divided 4-4 over the easiest case of the year, issues a decision nobody understands that basically can be boiled down to one word: “Punt.” In light of the biggest non-Supreme Court story of this, maybe, any year, these cases will soon become, as we federal courts professors like to say, moot.

7) Don’t Bring Those Gun Cases Here

         

           In June, the Court continued to refuse to hear important gun cases leaving lower courts to try and figure out for themselves appropriate gun control policy. Laws in New York and Connecticut banned assault weapons which apparently can’t be defined to anyone’s satisfaction. Without commenting, the Court denied review making the NRA very unhappy but probably making New York and Connecticut much safer places to live. Several commentators, including this one, believe that the Court’s refusal to hear these cases shows, once again, that Justice Kennedy has not yet figured out exactly how he feels about the Second Amendment, and neither the conservatives nor the liberals on the Court want to play Russian Roulette.

6) Justice Thomas Speaks

          

           Shortly after the second most important story of the year (see below), Justice Thomas broke a decade-long practice of saying absolutely nothing during the Court’s oral arguments. It had been 43 years since any Justice had gone even one year without asking a question, much less ten. No one remembers the case, the questions, or anything else about that day so I can’t report much other than Justice Thomas has not asked another question during oral argument since that day.

5) Immigration Case Punted

          

            A lower court in Texas had issued a national injunction staying President Obama’s plans not to rip American citizen children away from their undocumented immigrant parents This lower court judge had previously expressed great skepticism about these plans so this ruling was not, what we legal experts call, a big surprise. The Court, tied four-to-four, let the injunction stand. Because of events described (but not named because I can’t bring myself to do it), in number 10 above, this case will also be, as federal courts professors like to say, moot.

4) Affirmative Action Lives

          

           For the first time in his career, Justice Kennedy votes to uphold an affirmative action policy. The plan was adopted by, wait for it, the University of Texas. With the possible exception of noted scholar Mike Dorf, virtually everyone is stunned, because with Justice Kagan recused from the case, almost everyone except Dorf thought the Justices would vote the other way 4-3. Justice Kennedy even writes the majority opinion which would have totally infuriated the person who was the second most important story of the year (see No.2 below).

          Leaving aside the tough policy and legal issues involved in the case, the specific result is clearly right because the only plaintiff left in the case had no real claim for damages, had already graduated from college, and had said she would never again apply to the University of Texas. Thus, in reality, the case was, what we federal courts professors like to call, moot. Nevertheless, Kennedy’s vote is huge for the future of limited racial preferences in university admissions.

3) Monstrous Abortion Laws Die

         

           For only the second time in his career, Justice Kennedy voted to strike down abortion laws. These restrictions, enacted by, wait for it, Texas, basically required doctors who perform abortions to have admitting privileges at hospitals within thirty miles of their office, and also required clinics where abortions were performed to satisfy the physical requirements of outpatient surgery centers despite any evidence whatsoever that either requirement had even the most remote relationship to women’s health. Justice Kennedy joined without comment Justice Breyer’s precise and comprehensive opinion demolishing every single argument put forward by the state.

         

           In related news, Texas recently passes even more monstrous abortion laws requiring women to bury or cremate their fetuses.

2) Justice Scalia Dies Unexpectedly in….Texas

         

          In February, Justice Scalia passed away while on a hunting trip in Texas.          

Although I am one of his foremost critics, I wrote that night the following in Salon:

Even his opponents would have to concede that Justice Scalia was a dedicated public servant and one of the most influential Supreme Court Justices in history. A great writer with a flair for wit and biting sarcasm, he changed the way judges and scholars thought about constitutional law by making the doctrine of “originalism” legitimate. He was a hero to conservatives across the land for almost three decades.

I can’t add to that here.

1)       Mitch McConnell Breaks the Supreme Court-Maybe Forever

          On the very night that Justice Scalia died, the Senate Majority Leader announced that the Senate would not even give a hearing to any President Obama nominee. His rationale was that the American people, through the next President, who would not be in office for almost a year, should choose the next Supreme Court Justice. Apologists for this move would point to stray comments from Democrats in the past threatening such a move, or other delays by the Democrats in the Senate over judicial nominations, but the bottom line, which is irrefutable, is that this was the first time in American history that a sitting President was told, only one month into his final year, that no matter who he nominated, his pick wouldn’t even get a hearing, much less a vote.

         

          No one has argued more often than this author that the Supreme Court is at best a hybrid legal/political institution where personal values writ large, including at times partisan politics, dominate important cases. McConnell’s move, of course, is completely consistent with the reality of Supreme Court decision-making. But, sometimes image is everything. In the past, both political parties seemed invested in portraying the Justices they like as judges and the Justices they didn’t as runaway politicians. In the future, this argument will be much harder to make. In addition, if the Democrats ever control the Senate again, they will probably not, and they should not, confirm any GOP nominees. What all of this means is uncertain but, in the long run, this may have been the year the Supreme Court died, along with its most famous modern Justice.

Are the Chickens Coming Home to Roost?

By William Hausdorff

This is the time of the year to reflect on the big events of the year.  For those of us who live in Brussels, certainly the vicious bombings in March at a metro stop 10 minutes away from my home and at the airport (15 minutes away) stand out.  Fortunately, no one I knew personally was hurt.  But the Belgian flag is once again flying at half-mast over the nearby city hall building, this time because of the murderous attack on the Berlin Christmas market. Sadly, these tragic events only temporarily overshadow the most-painful-of-all US presidential elections.

It was easy to be overwhelmed by the singularity and bizarreness of the recent Presidential campaign.  But US history is filled with nasty, colorful campaigns; perhaps they are actually the norm. The election itself may turn out to be one of the most momentous elections ever, but it’s worth recalling that each of the past 3 or 4 Presidential elections truly seemed, at the time, to be one of “the most important elections ever,” and not all of them were. True, without Bush in 2000, there would almost certainly have been no Iraq invasion, no US-sanctioned torture, and quite possibly no ISIS.  And without Obama in 2008… goes without saying.

So what’s really different this time around?  There are at least 4 President-elect behaviors that must be truly unprecedented in US history:

the baseless allegations of massive fraud in one’s own presidential election;

the naming of a truly delusional national security advisor;

the angry dismissal, without examining the evidence, of any possibility that Russia interfered with the US election; and

the commingling of the President’s personal business with that of the US government. 

In a “normal” election year, I submit that any of these would be considered by the vast majority of the American population as a sufficiently disqualifying behavior for a President.  Why aren’t they now? Why are people—and their leaders—so cynical or fatalistic? Many analysts point to stagnant economic trends, the widening gap of haves and have-nots, the seemingly endless wars, underlying racist tendencies in America--all of which undoubtedly play important roles.

Less explored has been the role of four major existential scandals in the past 15 years--concerning free elections, torture, invading countries without justification, and widespread financial malfeasance-- and more specifically the abject failure of the Federal government, whether executive, legislative, or judicial branches, to hold ANYONE accountable for them.

In each case, there were serious investigations that led only to partial political “fixes.”  These substituted for the absence of any serious national conversation regarding the unacceptability of what took place.  I believe the culture of impunity among “the establishment” from these scandals has fed much of the cynicism already haunting us in the Trump administration’s pre-natal days.

1.  It is unprecedented for a President-elect to allege massive fraud in the election he participated in without bothering to provide a shred of evidence.  52% of Republicans agree he “won” the popular vote.

Why does Trump even have an opening there?  Why do so many people, right and left, not trust the voting system?  One can argue it is because the US political establishment never took seriously enough the debacle that was the 2000 hanging chad election.  It is chilling to re-read the sequence of events leading to the Supreme Court’s stoppage of vote-recounting efforts in Florida.  The political threats to have the Florida legislature declare Bush president regardless of the popular vote, the “Brooks Brothers Riot” of Republican operatives physically stopping a recount from occurring, the openly partisan behavior of Supreme Court Justices leading up their final vote. 

The federal remedy consisted of a bill that provided badly needed funds to update election machinery in 2002 (Help America Vote Act). Yet elections in the US are still via a hodgepodge of voting methods, some states with paper, others with electronic machines with and without paper back ups.  Gee-whiz stories continue to abound as to how easy it would be to hack election machines.  In the meantime, the Green Party aborted recounts revealed ongoing, fundamental problems in the voting and auditing processes, but these are almost totally ignored.

As a side note, we should not get too sacrosanct—US-led manipulation of other countries’ elections is a time honored tradition, as Ariel Dorfman reminds us, for example, in Chile.

2. It is not unprecedented for incoming Presidents to be blissfully ignorant of basic history, geography, or facts.  Both Reagan and Bush Jr wore their ignorance as a badge of pride, and it was assumed by many that the knowledgeable, experienced hands around them (e.g., Cheney, Rumsfeld) would more than make up for that deficit. We know how well that worked out.

But I don’t recall any example where a president-elect has steadfastly refused to even listen to the intelligence briefings produced by his nation’s agencies regarding the interference of another country in our national elections.  Nor do I believe has any openly ridiculed the apparently unanimous conclusion of Russian interference, all the while praising Russia’s autocrat as a stronger “leader” than the current US President.  

Trump’s smug explanation is that the CIA gave “false intelligence on Saddam Hussein’s weapon of mass destruction.”  That certainly has been the Bush/Cheney/Rumsfeld defense—it was all faulty intelligence.  But the larger story is the President ignoring, fabricating and distorting the tenuous nature of the evidence to advance his own political agenda—just as Trump is doing.

The manipulation of evidence is clearly documented in the bipartisan report of the 2008 Senate Select Committee on Intelligence, which systematically walked through contemporaneous statements by Bush, Cheney, Rumsfeld, Powell, Rice, et al and compared them with the intelligence from the CIA and other federal agencies available at the time.  Their damning conclusion is that Bush and Cheney manipulated intelligence information to deliberately and misleadingly promote the ideas that Iraq had nuclear weapons, and that Al Qaeda and Saddam worked together on 9-11, to justify the invasion.

Nonetheless, the culture of impunity reigns.  As far as I know, no member of the Bush Administration faced any legal penalty for this brazen behavior with such far reaching consequences.  And unlike in the UK, where ex-Prime Minister Tony Blair was forced to testify under oath to Parliamentary inquiries, neither the President nor Vice-President have ever been seriously confronted with their deeds.  The Senate report is more or less forgotten, and Trump is thus free to claim that it’s all the CIA’s fault.

3.  I suspect one can find a treasure trove of statements by past cabinet nominees, if not Presidential candidates themselves, which are similar to those of Michael Flynn, in openly disparaging major religions.  Flynn’s examples include his rants that Islam is a “malignant cancer” and “Jews” are blaming the “Soviet Union” for the DNC email leaks.  But it surely is unprecedented for a President-elect to name a National Security Advisor, or any high cabinet official who, along with his son, disseminates bizarre and slanderous information that the opposing presidential candidate commits sex crimes with children.  Only after the recent shooting in Washington DC inspired by such garbage did Michael Flynn quietly delete those tweets, as if they never existed.

How “demented,” in the words of former Flynn supporter General Barry McCaffrey, does a person have to be to worry a Republican Congress that he’s the one advising the President—one who is not interested in routine intelligence briefings—on what constitutes a real national security threat? Although the National Security Advisor is not subject to Senate confirmation, it would not be difficult for Congress to hold up other nominations until Trump withdraws this one.

In Flynn’s twisted universe, the practice of summarily jailing and torturing suspected “terrorists and their families,” as proposed by candidate Trump, can easily resurface.  Yes, the torture practices of the Bush Jr administration eventually stopped, after sufficient outcry. Yes, in one of his first official acts in 2009, President Obama issued executive orders banning torture, and the Congress even finally (six years later!) passed a law to codify this over the objections of 21 Republican senators.  These were crucial steps.  However, they fall short of the necessary public, painful conversation about torture, who ordered it, what happened, what it achieved and what it didn’t, and most importantly, to hold senior administration officials responsible. 

A major step could have been taken by making public the 770-page Senate Select Committee on Intelligence report on the CIA’s detention and interrogation program, as requested by 7 senators.  Yet the Obama administration very recently declined to declassify it, for at least 12 years.  Why is the US unable to openly confront this admittedly painful issue?  Even a South Africa that suffered so terribly under apartheid was able to constitute a highly effective and cathartic Truth and Reconciliation commission, widely credited for avoiding all out civil war.

Without an open, public conversation, and some kind of personal responsibility assigned, there is no reason to believe that the hallucinating Flynn-Trump duo won’t find a reason to institute torture yet again, surreptitiously, and with impunity.  We are naive to put all our faith in the good intentions of Defense Secretary-designate James Mattis. 

4.  In some ways, most stunning is the commingling of the President-elect’s company businesses with the US government in a brazen, unprecedented fashion so that diplomats and military personnel won’t ever know for sure whose interests they will serve.  As President-elect, he is having his children, who are actively running his business, directly participate in meetings and calls with foreign leaders with whom they have business interests.  He continues to refuse to fully declare his economic holdings and therefore allow the American public to even see where potential conflicts lie. 

Trump and his apologists’ (such as Paul Ryan) main defense here is that the US people knew of Trump’s conflicts when they voted for him. Unspoken is a cynical tolerance of corruption--this is the way the world works, it’s all about gaming the system.  Indeed, there is a plausible suggestion that Congressional Republicans are willing to let these gross, obviously unconstitutional conflicts slide in exchange for allowing Pence and the Tea Party Republicans to essentially decide the composition of Trump’s cabinet.  

Unfortunately, cynicism does seem to be the lesson of the Federal response to the devastating 2008 economic crash. On the one hand, there were investigations of the subprime mortgage scandal, and a serious legislative effort to prevent it from happening again (Dodd-Frank).  Yet after the banks were bailed out, not only was no banker successfully prosecuted, but they ended up receiving millions in bonuses, supported by the taxpayer bailouts.  No one was held legally accountable.

In short, I’m afraid that our unwillingness to hold establishment leaders responsible for the damage they have done to the American system has helped created the climate of cynicism and impunity that is fertile ground for the Trump Administration.

What Trump Could (But Won't) Say About Russian Hacking

by Michael Dorf

"My fellow Americans. It's so so great that the Electoral College has done its duty by electing me following my historic, tremendous victory in November. By the way, I totally could have easily won the popular vote by a landslide if it would have made any sense for me to campaign in California or my home state of New York, while Hillary would still have been wasting her time in the wrong states. And anyway a lot of people, it could be most people actually, are saying I really did win the popular vote, so thank you. Thank you.

"Now I want to address the concerns some sore losers have raised about alleged attempts by Russia or maybe China or some guy sitting in bed who weighs 400 pounds to influence the election by releasing John Podesta's risotto recipe.

"First of all, so what? Lots of stuff got released during the campaign. Some of it was supposed to be super-damaging to my campaign, but the American people saw it for what it was, just locker room talk and lies from the crooked media. One of Hillary Clinton's loudest supporters called the Wikileaks stuff that Russia supposedly got from Podesta's email--really, how dumb is that guy that he fell for a spearphishing scam?--but this other guy called it a nothingburger. I mean, it's a nothingburger, so what's the big deal?

"Now they're saying that I'm a Russian puppet, which is ridiculous. Actually a lot of people are saying the opposite. It's only a few people who are saying this puppet thing, like Saturday Night Live which is totally not funny, I mean nothing against Alec Baldwin, but seriously he isn't even the second most talented Baldwin brother. I kind of feel sorry for him.

"Okay, they want to investigate. Okay, so look, it's a tremendous waste of time and money, but sure. Knock yourself out. Hold hearings. Bring in the CIA, the FBI, the EPA, whatever. Talk to my staff. If you find that anybody who worked for me was a Russian agent or a Chinese agent or a 400-pound-guy agent, I want to know, because that would certainly be news to me. Try them for treason. Hang them from the highest flagpole.

"I don't know anything at all about who hacked, why they hacked, whatever. I don't know Putin. What I've said, 100 percent right, by the way, is that Putin's a strong leader and we have common interests. We should be fighting ISIS together in Syria and other terrorist countries. Do I agree with everything Putin says or does? No. But there are a lot of nasty dudes in the world. Not saying Putin's a nasty dude, not at all, but guys like Assad, just like Saddam was, which by the way I was totally against the Iraq war, the Howard Stern thing was just an off the cuff quick answer, not what I said over and over to Sean Hannity, you can even ask him--and we can't be the world's policeman, so if some nasty dude is good at killing terrorists, then we should work with them.

"So sure, okay fine. Have the investigation. If it turns out the Russians or the Chinese or maybe the Soros Foundation was trying to interfere with our elections, we deal with it. I'll tell you this. When I'm president, they'll respect us. Not that I want to say anything bad about Barack Obama, who is a terrifically nice guy, although I'm totally going to do more for African Americans than he or any Democrat ever did. The blacks, they love me, which is part of why I won such a historic victory. But I don't know maybe sometimes Obama doesn't have the smartest or the toughest people working for him, which is why he is so weak and that's why Putin or the Chinese or ISIS take advantage. But we can get along with everybody who wants to get along with us and it will be a beautiful thing because number one, they will want to get along with us because they'll respect me, and B, I can make a deal. It's what I do. I make the best deals because I have the best people who work for me, not like these guys they have now. You'll see, okay?

"Yeah, have your investigation. Let me know what you find. Maybe you'll find that the Russians or the Chinese or maybe Mexico tried to influence the election. Luckily we know they failed. But still, yeah, let's find out because you know what? I'm going to win an even bigger even historicker landslide in 2020, and I want to make sure no foreign country or 400 pound hacker interferes with that.

"Now that I'm going to be president, let me just add a couple of words that very soon won't be illegal to say anymore. Merry Christmas. Merry Christmas. And to all the terrific tremendously great Hispanics who voted for me despite the crooked media saying I was against them just because I want to build a wall to keep out illegals, not all Mexicans, just illegals, I say Feliz Navidad."

---------

Donald Trump could, but almost certainly won't, give a speech very much like the foregoing. Why not? I'll briefly consider four possibilities.

1) Trump is actually a Russian agent. If so, he can be impeached, removed, and then tried for treason.

I suppose that evidence that Trump committed treason could arise but until it does, I will assume that he is at worst a dupe, not a traitor. If I were a Russian spymaster, I would not regard Trump as a prime target for recruiting, given his lack of self-control. Thus, if Trump really were a Russian agent, by now he probably would have slipped up in some obvious ways.

2) Trump is not himself a Russian agent but he knows or has strong reason to suspect that one or more people who worked on his campaign and will work in his administration are Russian agents.

This is more plausible than proposition 1), but for now the evidence, while intriguing, is only circumstantial. We know that advisors to the Trump campaign had Russian ties. Trump's people apparently were responsible for eliminating a plank in the Republican Party Platform calling for arming Ukraine against Russia and its allies. Despite Trump's denials, we know that the U.S. intelligence community has concluded that Russian hacks appeared targeted to harm the Clinton campaign. We know that various Trump positions--such as questioning the U.S. commitment to NATO, denying the obvious fact that Russia annexed Crimea, and indicating a willingness to cooperate with Russia in the Middle East--are more Russia-friendly than positions taken by Clinton and most elected officials of both parties. And since the election, Trump announced plans to nominate Putin-BFF Rex Tillerson to be Secretary of State. There's no smoking gun there, but there's enough of an aroma of gunpowder that even if Trump himself doesn't know about a Russian mole (or colony of moles) in his operation, he or his advisors could fear what a full investigation might turn up.

3) Trump rationally fears that a thorough public investigation of Russian hacking and other attempted interference in the election would undermine the legitimacy of his presidency, even if it cannot be shown conclusively that but for the hacking and other attempted interference, he would have lost the Electoral College vote. He and his advisors have calculated that any political damage from his continuing to dismiss the evidence of Russian hacking is less serious than the damage that would arise from the findings of a thorough investigation.

This hypothesis would make a great deal of sense were it not for the fact that, if there really was no coordination, the political calculation seems wrong. The intelligence services will conclude at least a preliminary investigation before Trump takes office. If, as expected, it confirms Russian involvement and enough documentation is made public to establish that conclusion definitively (except on Breitbart, Infowars, etc.), then Trump will look the worse for having opposed the investigation. By contrast, if Trump and his team really weren't participating in a Russian plot and they invite the investigation using a Trumpian statement like the one above, then the result of the investigation would not be very damaging.

4) Trump's opposition to an investigation is not based on any sort of rational calculation. It is simply the product of his huge-but-fragile ego. Anything that is in any way connected with the possibility that he didn't win a ginormous unpresidented victory without any help from anybody must be met with the overwhelming force of Trump's blustering denials and fabrications.

Explanation 4) is pretty clearly the most likely of the ones I've considered. Even though giving a speech like the one I've drafted for Trump would help him politically, he won't do it, because to do so would require him to acknowledge, even for a few moments and for the purpose of rebutting them, the reasons why people think that Russian interference might have influenced the electoral outcome.

If there are any members of the Trump transition team reading this essay and you are persuaded, feel free to pass the speech along to the president-elect for him to deliver (preferably without attribution). You're welcome.

-------------
I'm sure I speak for all of us here at DoL when I say Merry Christmas, Happy Hanukkah, Feliz Navidad, Happy Kwanzaa, Happy Yule, Happy Festivus, and belated Happy Dhanu Sankranti, Milad un Nabi, and Bodhi Day. Also, Happy Holidays and Season's Greetings.

Desperate Measures for Desperate Times

by Neil H. Buchanan

The Democrats have spent quite a bit of the time since November 8 asking themselves what they did wrong, how they lost the presidency even after they had been given the gift of what seemed like the world's most beatable opponent.  More importantly, what should they do moving forward?

Much of the immediate post-election discussion centered around a baseless theory attacking "identity politics" as the cause of Clinton's loss.  Fortunately, that moment seems to have passed (although one must never underestimate the staying power of a bad idea), and the conversation has now turned to whether the Democrats are simply too timid.

This was captured best in a recent column by David Leonhardt titled "Democrats Had a Knife, and the G.O.P. Had a Gun," which The New York Times published shortly after running "Buck Up, Democrats, and Fight Like Republicans," by Dahlia Lithwick and David S. Cohen.  The common theme running through those columns is that Democrats simply need to be willing to take more aggressive stands than they have traditionally been willing to take.

To be clear, Democrats have been very good at organizing national campaigns, raising money, and so on.  They were able to retake the House and the Senate during George W. Bush's presidency, and they held the Senate longer than they might have simply because they were able to exploit Republicans' weaknesses.  (On the other hand, how difficult is it to win when your opponent runs an ad saying, "I am not a witch"?)

But the point that the columns linked above drive home is that Democrats are not willing to make innovative, risky arguments when the chips are down, preferring instead to believe that their good manners will be rewarded by voters.  Lithwick and Cohen point to the Republicans' scorched-earth strategy during the 2000 Florida recount and related court battles, and Leonhardt contrasts President Obama's decency in 2016 with the Republicans' actions in North Carolina after they lost the governorship there this year.

Professor Dorf has noted that the Lithwick/Cohen claim is a bit overdone, because the Republicans' ex ante chances of winning in the courts with novel (a better word would be absurd) legal theories was actually reasonably good under the unique institutional circumstances of that time.  That is an important (and accurate) point, but I am raising a different issue here, which is whether Democrats need to be bigger risk-takers when it comes to litigating in the courts of law as well as in the court of public opinion.

The short answer is that they must.  If ever there were desperate times calling for desperate measures, those times are upon us.  There is every reason to think that Republicans will become even more shameless when it comes to rigging elections, and the Democrats will be doomed to irrelevance if they cannot bring a real fight to the Republicans.

In some sense, this is all very obvious.  "Politics ain't beanbag" is an old cliche, and it is not as if Democrats have treated politics as an idealized system.  Even so, there is something very obviously self-defeating about the way that Democrats respond to Republicans' excesses, and it boils down to a matter of appearances.  Democrats, it seems, are worried that they will look like sore losers and that Republicans will call them pathetic.

For example, during the final stages of the 2016 campaign, Trump surrogates were going on the news shows to deliver his talking points.  Some of those surrogates were newcomers who were obviously in over their heads, stunned to find themselves in high places in a presidential election campaign.  Others, however, were old Washington hands who were willing to join what looked like a losing campaign.

I recall watching a clip of one of Trump's spokesmen being interviewed by a network political commentator.  (I think it was Chuck Todd on NBC, but those details hardly matter.)  The Trump guy was saying that online polls showed that Trump had won one of the debates, but the interviewer was not having any of it, pointing out that the surveys on which the Trump campaign was relying were unscientific.

The exchange was fascinating, because the Trump guy absolutely would not be budged, saying repeatedly with a straight face that up was down and wisdom is ignorance.  Finally, the interviewer's frustration boiled over, and he fairly pleaded, "Look, I know you.  I know that you know better than this.  You can't possibly believe what you're saying!"  This had no impact, and Trump's man robotically repeated his points, with no evidence of embarrassment.

In a moment of even greater clarity, there was a panel discussion at Harvard shortly after the election, with the political professionals from the Clinton and Trump campaigns getting into a nasty on-stage argument about their opponents' tactics.  Trump's campaign manager, Kellyanne Conway, turned to her counterpart on the Clinton campaign at one point and asked, "Do you think I ran a campaign where white supremacists had a platform? Are you going to look me in the face and tell me that?"

When I saw that, I flashed back to a time when I was sitting across a desk from a car salesman at an automobile dealership.  I had caught him in one of many blatant lies, and I thought that he would at least back off of that claim.  Instead, he looked at me with a combination of feigned hurt feelings and anger and said, "Are you calling me a liar?  Are you actually saying to my face that you think I'm a liar?"

It was a brilliant tactic, drawing its strength from the mismatch between a person with no shame and another person who cares about normal human decency.  Reeling from the accusation, I immediately backtracked and thought that maybe he is not really a liar, and I tried to think of any innocent explanations.  I am happy that I was raised to be the kind of person who hesitates to confront another person so aggressively.  Even so, trying not to be mean came at a cost, and I ended up not only buying the car from that liar but actually overpaying for it.

Looking for the most generous versions of other people's claims is, in fact, all but the prime directive for professors.  We reflexively say things like, "Well, to be fair, it is true that ... ," and "I can see where my argument does not apply in all cases, but still I think it is not too much of a stretch to say ..."  As avidly as we advance our arguments, our highest aspiration is to be able to say that we gave every alternative argument more than a fair hearing.

As scholars, that is absolutely what we should be doing.  When that attitude translates into political strategy, however, it can cause problems.  Earlier this year, I noted how the standard academic style (which carries over into many of the precincts of mainstream journalism) caused people who think of themselves as fair-minded to bend over backwards not to call Trump a liar.

When Trump claimed that the true unemployment rate was not 4.9 percent (as reported by the Bureau of Labor Statistics) but was actually somewhere between 28 and 42 percent, the best answer would have been to say, "No, it isn't."  Instead, journalists and economists were soon tying themselves in knots.  "Well, it's true that more than five percent of the population is not working, so if you redefine 'unemployed' to mean not currently holding a job, there are some numbers that get you to Trump's number."

Again, however, anyone not working for the Trump campaign should have simply said, "No, the unemployment rate is not one of those higher numbers.  He is wrong."  No reasonable person has ever said that "not working" means the same thing as unemployed, and playing with alternative definitions -- in an effort to say that maybe the person is not lying -- is an honorable instinct that unfortunately no longer has a place in modern American politics.

Similarly, when I first heard that Trump was claiming to have won by a "landslide" in the Electoral College, my professorial instinct was to say, "Well, I guess everyone can have their own definition of a vague word like landslide, but ... ."  The right answer was, "No, he did not win in a landslide."

Part of the problem for Democratic spokespeople is, I think, that they worry about going on the TV interview shows and not being able to stay on message with a straight face.  When Chuck Todd says, "You have to admit that your argument has weaknesses, don't you?" the default is to say, "Well, yes, you have a point, but ... ."

For example, there was some post-election discussion among Democrats about bringing a constitutional challenge to the winner-take-all approach to awarding electoral votes.  Why did they not do that?  As Lithwick and Cohen suggest, there is no doubt that the Republicans would have done that and more, if the roles had been reversed.

The short answer is surely that the top minds among Democrats rejected the argument out of hand, because it sounded ridiculous to them.  Sitting across the desk from Wolf Blitzer and saying that there was a plausible argument against the way the Electoral College has worked since 1789 could have been embarrassing.  Why look desperate?

Again, however, the Democrats are desperate at this point.  They understandably worry about losing credibility by making arguments that their opponents will mock, but they fret about this even as those opponents have shown their willingness time and time again to stand behind absurdity with straight faces.

This was one of the infuriating things about President Obama during the majority of his presidency.  He continually took an approach that suggested a defeatist mindset: "Well, to be fair, I can see why people might not understand why I might do X, so I'll back off."

Happily, Obama did finally learn the lesson that trying to avoid being criticized or even mocked is a fool's errand.  In an interview earlier this year, he said: "You start realizing at a certain point, well, folks aren’t even trying to be consistent. They’re not even trying to be fair-minded in their assessments or recommendations. In which case the best thing for me to do is to try to figure out what the right thing to do is and just do it, and worry later about how Washington is grading me."

Of course, what Obama was saying there was that he no longer trimmed his sails when it came to policies and arguments that he thought were quite strong.  That is a step forward -- an essential one -- but it is not quite what Lithwick and Cohen or Leonhardt are talking about.  The idea is that Democrats need to be willing to take very aggressive positions and not undermine themselves by saying, "Well, I know that this is an extreme position, but ... ."

There are plenty of examples of how this strategy works.  Democrats were positively freaked out when David Boies and Ted Olson brought their same-sex marriage case to the courts.  There was (quite reasonable) concern about backlash and so on.  That it turned out well is not proof that it could not have turned out poorly, but (to state the tautology bluntly) it is proof that it could turn out well.

Consider how successfully the Republicans have played this game over the years.  What became D.C. v. Heller was the longest of longshots, based on an utterly ahistorical re-reading of the Second Amendment (see Justice Stevens's devastating dissent) that required a complete repudiation of settled law.

Or how about the first challenge to the Affordable Care Act, NFIB v. Sebelius?  There, an argument that was utterly laughable when first proposed -- the "broccoli argument," based on a logically incoherent action/inaction distinction that was nowhere to be found in the law -- was adopted by five justices, four of whose earlier writings should have caused them to reject the commerce clause challenge out of hand.

The oft-forgotten second part of NFIB v. Sebelius is even more astounding.  There, seven justices actually agreed that the Medicaid expansion amounted to impermissible coercion of the states.  This was disastrous for the poor and middle class people in Republican-led states who were thus denied medical care, but it was a victory for people who were willing to make extreme legal claims and keep pushing them forward.

The people who pushed those theories, especially the professors who contributed intellectual firepower, took a beating on the talk shows and especially in the seminar rooms.  What they did not do was show any sign of shame or embarrassment.  Some of them surely believed every word of what they said, but Barack Obama also believed what he said even as he maintained a defensive crouch for most of his presidency.

Where are the opportunities for Democrats to take some risks and to face the possibility of being told that their legal theories are outside the mainstream?  One obvious example is the post-election insanity in North Carolina, where the state Republicans have stripped the governor of many of his powers, most importantly the power to undo the Republicans' voter suppression efforts.

I do not doubt that the current state of legal doctrine makes any challenge to the N.C. Republicans' actions an uphill climb.  But why not throw the kitchen sink at this one?  For example, the so-called Guarantee Clause in Article Four of the Constitution says that "The United States shall guarantee to every State in this Union a Republican Form of Government."

What does that mean?  No one really knows, but the basic idea has always been that the federal government must make sure that the "consent of the governed" is the basis for democratic legitimacy.  In order to win a case based on this clause, the Democrats would have to overcome the "political question" obstacle (courts refusing to decide cases that could be handled by the political branches), and then they would have to prove that "republican governments" do not change the rules after the election to favor the losing side.  The Democrats might lose.  In fact, I would bet against them.

More generally, however, Democrats need to appreciate how strong their big arguments are.  Republicans win by suppressing the votes of likely Democrats and redrawing legislative districts.  Democrats can honestly argue that they do not want to suppress the votes of likely Republicans (or anyone else) and that they are willing to win or lose in fairly drawn districts.

In the end, what Democrats need to say is that the political branches (at both federal and state levels) are not self-regulating.  It is understandable that the courts would avoid involving themselves in election-related decisions, but the admonishment to "take it to the people's representatives" is entirely empty when the people's will has been systematically subverted in the elections that determined those representatives.

There is nothing fun about losing, and there is nothing fun about being forced to make arguments that might be rejected.  Democrats, and progressives more generally, habitually restrain themselves to their own disadvantage.  That must change.  Soon.