Friday, August 18, 2017

Free Speech and Guns in 2037

By William Hausdorff and Eric Segall

Grandpa, I learned in school today that not so long ago American hate groups were allowed to march through the streets of our town, shouting threats and racial slurs at people, and to carry guns while they did that.  And that some people got killed.

I’m so glad they can’t do that anymore. Can you explain this to me?  Because I really didn’t understand it.  Is all that really true?   

Well, you're too young to remember this, but it all began to change with what happened in Charlottesville, Virginia back in 2017—just about 20 years ago. 

The Company Trump and His Supporters Keep

by Neil H. Buchanan

We have long since passed the point where it makes sense to try to compare Donald Trump's outrages.  "A new low."  "Most depressing."  "Even more dangerous." "Unprecedented in its depravity."  The inventory of negative superlatives has been depleted.  Everything, it seems, is the worst.

I will not, therefore, try to claim that there was one Trump statement in the last week that shocked me more than any other.   I will, instead, take one of his moments of awfulness as a starting point to make a larger argument.

As most observers know, Trump claimed in his indescribable press conference on Tuesday, August 15, that there were "some very fine people on both sides" of the Charlottesville protests.

Trump's claim seemed to be that some fine people marched alongside groups of men carrying Nazi and Confederate flags who were chanting anti-semitic slogans, but the company they kept that does not reflect badly on them, because they were merely there to protest the removal of a statue and the renaming of a park.

Even giving a complete (and undeserved) pass to people who would defend statues and other public honoraria that exist "to celebrate white supremacy," the best response I have seen to Trump's whitewashing (unfunny pun intended, of course) of bigotry was offered by the late-night host Jimmy Kimmel:
"If you’re with a group of people and they’re chanting things like 'Jews will not replace us' and you don’t immediately leave that group, you are not a very fine person."
Failing to notice the company that people choose to keep is an act of willful moral blindness.  Any person who could say, "Well, these people shouting hateful slurs and carrying the symbols of America's defeated enemies don't make me want to leave their presence," is a person who himself is morally bankrupt.

The question is how far this extends.  And it brings into sharper focus a question about Trump's voters that far too many commentators have been failing to understand for the past two years.

Thursday, August 17, 2017

A Pregnant Minor's Best Interests

by Sherry F. Colb

In my Verdict column for this week, I discuss an Alabama law regulating the judicial bypass hearing that minors get if they cannot or will not go to their parents to obtain consent for an abortion. The purpose of the judicial bypass hearing is to allow minors who are uncomfortable approaching their parents about their unplanned pregnancy (or whose parents refuse to consent) to approach a judge instead. The judge will then decide (1) if the minor is mature enough to make the decision on her own, and (2) assuming that the minor is not mature enough, whether an abortion is in the minor's best interests. The Alabama statute was unusual in that it provided that the minor's parents, the local District Attorney, and a Guardian Ad Litem for the embryo or fetus could or would also be parties to the bypass hearing. A federal court held this unusual statute unconstitutional, and I elaborate that holding in my column, which then discusses the communicative significance of inviting a prosecutor, the girl's parents, and a representative of the embryo or fetus into the courtroom. In this post, I want to focus on one of the two questions that a judicial bypass is in place to answer: if the minor is not mature enough to make the decision on her own, then is an abortion in her best interests?

Wednesday, August 16, 2017

What's the Difference Between Confederate Leaders and Slave-owning Founding Fathers?

by Michael Dorf

Baltimore's overnight removal of Confederate statues and similar actions elsewhere raise the question also raised by President Trump in his remarks yesterday expressing solidarity with the "many fine people" who just happened to participate in explicitly racist and antisemitic events in Charlottesville: "Is it George Washington next week? And is it Thomas Jefferson the week after?" The short answer to Trump's question is that we honor Washington and Jefferson despite the fact that they owned slaves, whereas memorials to the likes of Robert E. Lee, Jefferson Davis, and Stonewall Jackson honor them because they fought for the Confederacy, a secessionist movement that had the preservation of slavery as its organizing principle.

Yet the longer answer is more complex. The nationwide movement to strip honors from people who participated in slavery and institutional racism has as its object some people whose contemporary honors can fairly be said to be based on other accomplishments. For example, the movement at Princeton to take away Woodrow Wilson's honors proceeds despite the fact that almost no contemporary Princetonians who seek to retain those honors thereby wish to honor Wilson's virulent racism or his "accomplishment" of segregating the federal workforce. Just as most Americans honor Washington and Jefferson despite rather than because of slavery, most Princetonians who honor Wilson do so despite rather than because of segregation. So what's the difference?

Tuesday, August 15, 2017

Trump Has the Opposite of a Poker Face

by Neil H. Buchanan

No one who has been paying even a little bit of attention to Donald Trump could have been surprised by his abject failure of leadership after the violent white supremacist rallies in Charlottesville this past weekend.

Trump's White House staff includes people who have built their careers by fomenting racist hatred, and Trump has enthusiastically embraced their themes and resentments.  He had no inclination to criticize a part of his base that he has actively courted.

There has already been an outpouring of excellent commentary regarding Trump's contemptible evasions.  Jennifer Rubin, a conservative columnist for The Washington Post, posted a blizzard of insightful blog entries, including one in which she decried "Trump's moral idiocy."  (On the other hand, some nominally respectable right-wingers are now busily trying to create false equivalence between Trump and Barack Obama.)

But by far the best responses thus far have come from the political comedian John Oliver, whose opening segment on his HBO show on Sunday night (August 13) offered a string of brilliant comments.  Two lines were especially devastating.

First, after showing a clip of David Duke praising Trump, Oliver dead-panned: "I've got to say, David Duke and the Nazis really seem to like Donald Trump, which is weird, because Nazis are a lot like cats: If they like you, it's probably because you're feeding them."

Then, Oliver showed a clip from earlier in the day in which Trump failed to respond to repeated opportunities to control and undo some of the damage of his earlier condemnation of violence "on many sides, on many sides."  After Trump's last failure to respond, Oliver said: "He had one last shot before the buzzer on the racism clock hit zero, and he threw an air-ball so far away it landed in the Third Reich."

Michael Dorf did a fantastic job of imagining the speech that Trump could have delivered under these trying circumstances -- not the speech that Dorf would want Trump to give if Trump were suddenly to become a progressive pluralist, but simply one that expresses "sentiments that are appropriate to the gravity of the occasion but also consistent with the views that President Trump's least objectionable supporters attribute to him."  Like all of us, however, Dorf knows full well that Trump could never deliver such a speech.

I suspect that I will find myself writing directly about those topics soon, but I want to use this column to put Trump's far-too-late, scripted attempt at damage control in the context of his tendency to say things in a way that cannot be adequately captured in written transcripts.

To put the point simply, Trump has the opposite of a poker face.  No matter the words coming out of his mouth, it is always obvious what he actually means.

Monday, August 14, 2017

Some initial steps if the Democrats are really serious. Start by looking different.

By William Hausdorff

I’m a little ashamed to admit that I already miss the Mooch.  Unlike Spicer, Huckabee Sanders, Conway, and the rest of that robotically mendacious crowd, Anthony Scaramucci, the effervescent but sadly evanescent White House communications director, appears to be occasionally capable of unprogrammed, human-like opinions.

Nevertheless, only after the Mooch was dismissed for delivering his must-read interview-rant, could I (momentarily) pull myself out of reach of the daily splattering of untreated sewage that passes for White House communication.  I decided to try to think about where Trump and the Republicans are heading. 

Saturday, August 12, 2017

The Speech A Presidential Trump Would Give

by Michael Dorf

In response to the Charlottesville violence at a white supremacist rally, President Trump condemned the "egregious display of hatred, bigotry and violence on many sides"--a statement that can be read to place primary responsibility on the white supremacists but that falls short of doing so expressly. Even if we acknowledge that some counter-demonstrators were responsible for some of the violence, does Trump mean to suggest that the hatred and bigotry come from many sides? Why does he not unequivocally condemn and separate himself from white supremacists?

The answer may well be political. Perhaps Trump fears alienating his alt-right base. If so, nothing I can say here will persuade him to do anything other than continue to issue ambiguous platitudes. Still, on the off-chance that Trump wishes to say something presidential, I humbly offer a speech for him to deliver. To be clear, this is not the speech that I would write for a president whose views I found closer to my own. Instead, it expresses sentiments that are appropriate to the gravity of the occasion but also consistent with the views that President Trump's least objectionable supporters attribute to him.

Friday, August 11, 2017

Trump and North Korea: Where is Congress?

By Eric Segall

Donald Trump might be the last person on the planet I would trust with making reasonable decisions concerning what to do about North Korea's nuclear capability. Having said that, we shouldn't trust any President with the unilateral power to commit a non-emergency, no-need-for secrecy, act of war without congressional consent. The founding fathers wanted to separate the war declaring function from the war fighting function, yet here we are in a world where the President can unilaterally start a war. Congress must act, and act now.

A Tepid Defense of the "Diversity" Rationale for Affirmative Action

by Michael Dorf

My most recent Verdict column (now also available via Newsweek) discusses the recent announcement that the DOJ is committing resources to investigating and potentially suing American colleges and universities over their affirmative action programs. I describe the potential peril that the announcement--if the DOJ follows through--holds for colleges and universities that push the edge of the envelope of what the SCOTUS precedent currently permits and even for those that hew strictly to the line between permissible "plus-factor" affirmative action and impermissible de facto quotas. For the latter, the greater danger would be another SCOTUS appointment for President Trump (or, in the event of his removal, any other Republican president).

Here I want to discuss a related issue. Defenders of affirmative action--and even some of its critics--frequently criticize Justice Lewis Powell's controlling opinion in the Bakke case on the ground that it rejected the most compelling justification for race-based affirmative action while validating a relatively weak justification. I'll offer a hesitant defense of Powell's position (which subsequently was adopted by a SCOTUS majority).

Thursday, August 10, 2017

Political Advantage and Policy Responsibility for Democrats

by Neil H. Buchanan

The Democratic Party, we are forever being reminded, has had a bad run recently.  Although I continue to believe that commentators have overstated their troubles and that Democrats' fortunes will soon improve, there is certainly no denying that Republicans are in charge nearly everywhere.

If great power implies great responsibility, however, then no power might imply no responsibility.  Are the Democrats off the hook?  When Barack Obama was in the White House, congressional Republicans exercised their irresponsibility not just during the two years that they were the minority party in both houses but even after they took back the House in 2010 and the Senate in 2014.

From budget showdowns to repeated meaningless votes to repeal the Affordable Care Act to filibustering executive and judicial nominees, the Republicans acted entirely for political gain.  And, as sad as it is to say, they were not punished for their irresponsibility.  Indeed, they thrived.

True, Republicans did win fewer seats than they could have (especially in the Senate) by running a surprising number of cuckoo-pants candidates -- "I am not a witch!" -- but they continued to win at both the federal and state levels with candidates who never took seriously the notion that they were there to govern.  Indeed, they never took any facts seriously, because everything was about ideology.

What should the Democrats do now?  They are truly in the position where they can say, "We have no power to stop you, so we are not going to do anything to help you, even if you need us to do the right thing."  Should they do that?  They answer is not as easy as I would like it to be.

Wednesday, August 09, 2017

What Matters at the SCOTUS and for Constitutional Democracy?

by Michael Dorf

Tomorrow I will be speaking on a series of panels at the 19th annual Practicing Law Institute (PLI) Supreme Court Review session in NYC, with simulcasts in various locations as well as a webcast. I have been a panelist at this event since its inauguration and am, as always, eagerly looking forward to it. In addition to returning panelists Erwin Chemerinsky, Joan Biskupic, Burt Neuborne, Ted Shaw, Sherry Colb, Marty Schwartz, Leon Friedman, and myself, this year we add Judge Sandra Ikuta. (Although co-organizers Chemerinsky and Schwartz always ask us to provide fair accounts of the Court's work, the lineup slants liberal, so they make sure to include at least one recognizable conservative. Last year we had Judge Jeffrey Sutton and Jeffrey Wall, who is now acting Solicitor General. This year Judge Ikuta will be doing the work of the two of them!)

The day is organized around various topic areas and the cases the Court decided in each topic area. I'm responsible for presenting the immigration cases, including the Travel Ban case, as well as a couple of cases on the "Business Interests and Civil Litigation" panel. I'll also have opportunities to comment on the various other cases that my fellow panelists present on these and other panels. The day begins with an overview, which is something of a free-for-all. As advertised in the schedule, one topic that will no doubt get a fair bit of attention is the impact of Justice Gorsuch. I'll say a couple of words about that--the exact couple of words will be "extremely conservative"--but I intend to use some of my time during the opening panel to highlight the threat to constitutional democracy posed by President Trump.

Tuesday, August 08, 2017

What is This Rule of Law Thing Really About?

by Neil H. Buchanan

It seems almost impossible to read about the Trump Administration without coming across yet another author who is worried about Trump's threat to the rule of law.  This threat is very real, and it is a good thing that so many commentators are shining a spotlight on Trump's lawlessness.

In the midst of Trump's maelstrom of misdeeds, however, there is a danger that we will forget exactly what is at stake when we are talking about the rule of law, a term that can all too easily become a vague abstraction (like democracy).  When we say that the rule of law is under assault, what do we mean?  Why does it matter?  What happens if it is eroded or lost?

Monday, August 07, 2017

Two Branches, Two Leaders, Two Speeches to Adolescent Boys

by Michael Dorf

The warp-speed news cycle has moved on, but I want to linger a bit over what now seems like ancient history: President Donald Trump's speech to the Boy Scouts Jamboree two weeks ago. I shall contrast Trump's speech with one the previous month to a similar (albeit smaller) crowd: The ninth-grade commencement address that Chief Justice John Roberts delivered at the Cardigan Mountain school, where his son Jack was among the graduates. The Roberts speech was everything that the Trump speech wasn't: self-deprecating; well-crafted; compassionate; and wise. The contrast tells us something profound about the differences between the men who respectively head the judicial and executive branches of our national government.

Friday, August 04, 2017

Why Does Trump Press the Lie About Voter Fraud?

by Neil H. Buchanan

Donald Trump provides so many examples of blatant and overt racism that it almost seems unnecessary to focus on less obvious evidence of bigotry.  Even so, there are important lessons to be learned from the choices that Trump makes about which issues to highlight and which fights he picks, almost all of which come back not only to his own narcissism but to his deeply racist worldview.

Ever since the 2016 election, Trump has been obsessed with proving that he won BIG.  He continues to insist that his 44th-biggest out of the 56 margins of victory in Electoral College history was a landslide, and many of his surrogates (including the ones whom he has fired) have dutifully repeated this nonsense.

But at least that particular claim can be dismissed as mere puffery, yet another example of Trump's willingness to claim that his buildings are taller than they are, that his businesses are more successful than they are, or that his "words" and "brain" are better than they are.  Ultimately, the word landslide is vague enough that most people will end up rolling their eyes and saying, "Whatever you want to call it, dude.  Get over it."

The more interesting question is why Trump is pushing so hard on the lie about the phantom illegal voters who supposedly cost him a popular-vote victory.  According to Trump, his 2.9 million-vote defeat is explained by something like three or five million illegal votes for Hillary Clinton.  This lie turns out to be very revealing.

Thursday, August 03, 2017

The Debt Ceiling for (Republicans and Other) Dummies

By Neil H. Buchanan

Republicans in Congress and their allies in the Trump Administration should have one overriding priority right now, and that is to repeal the debt ceiling statute.  Note that I did not say that their goal should be to increase the debt ceiling, although that is the more likely -- and, absent an outbreak of sanity, necessary -- path that they must follow.

The one thing that they cannot do is nothing, because that would lead to an unprecedented disaster.  The problem is that there is so much misinformation and ideological posturing about the debt ceiling that it is only too easy for fake populists to pretend that the debt ceiling is not a big deal or that other issues take priority.  They are dangerously wrong.

Even though we have been through debt ceiling standoffs multiple times over the past six years, there is still a great deal of misunderstanding about the issues and the stakes involved.  Here, I will explain what is happening, what could happen, and why the different approaches to the debt ceiling matter.

In particular, I will explain why I would stand with the Trump Administration (a statement that I never expected to make) if they took what would seem to be a radical step and ignored the debt ceiling when the time came.  With or without that, however, a huge crisis faces us unless Republicans in Congress fix this problem soon.

Wednesday, August 02, 2017

Common Sense, Legal Doctrine and Wedding Cakes

By Eric Segall

Next term the Supreme Court will hear a case brought by a baker who refused to sell a wedding cake to a same-sex couple. The baker argues that a Colorado non-discrimination law which makes it illegal to refuse to do business with people because of their sexual orientation violates his first amendment rights to freedom of speech and religion. Most scholars agree that the speech claim raises more difficult questions than the religion one, but this post focuses on the baker's claim that the Colorado non-discrimination law as applied to him is inconsistent with his right to the "free exercise of religion."

Death vs. Never Having Been Born

by Sherry F. Colb

Charlie Gard died last week. In my latest Verdict column I discuss his tragic life and the legal battle the ending of it occasioned. Charlie's parents disagreed with the boy's doctors because the former wanted to keep him alive to try an experimental treatment but the latter (the doctors) wanted to disconnect the boy from life support and give him a dignified death. In my column, I discuss what I regard as an optimal way to approach parental decision-making regarding a child's treatment, given that parents are generally the most likely people to have their child's best interests in mind.

In this post, I want to consider a different issue that emerges from Charlie's case. It is the "death versus never having been born" issue. Charlie was born with a genetic disease. His illness, mitochondrial DNA depletion syndrome, is a horrible disease that is incurable and typically kills children in infancy or early childhood. Assuming that Charlie's parents were unaware that he had this condition prior to his birth, it is possible that if his parents had known ahead of time, they may well have chosen to terminate the pregnancy. Doing so would have spared Charlie (or, more accurately, the child who would have been Charlie) the pointless suffering that he ended up experiencing.

Tuesday, August 01, 2017

Democracy, Constitutions, and Courts--Abroad and at Home

by Michael Dorf

The beginning of August for me heralds the new academic year. The registrar sends out reminders to post syllabi. The annual supplement to my casebook arrives in the mail. Despite the heat, my thoughts turn to the new batch of eager 1Ls that will shortly arrive for me and my colleagues to corrupt.

The coming semester will mark the first time I have taught constitutional law during the Trump presidency. I taught federal courts in the spring, for which various Trump policies--especially the Travel Ban--provided grist for discussion. But the federal courts issued raised by the Trump administration, like the subject in general, were somewhat technical.

By contrast, thinking about Trump and the Constitution writ large provides an opportunity to think about the very nature of constitutional democracy. Things long taken for granted--like the fact that a president would not attempt to cancel an election or refuse to accept the result of one--may now be discussed as more than fanciful hypotheticals. The distinction between stable democracies and fragile ones becomes somewhat less important as we contemplate the fragility of our own democracy. That, in turn, suggests a wider scope for comparative analysis. Accordingly, I want to consider some lessons we might learn about the relation among democracy, constitutions, and courts from recent events in Poland, Pakistan, and Venezuela.