Wednesday, August 15, 2018

Originalists in Space

by Michael Dorf

Last week, Vice President Pence announced the creation of a "Space Command," a first step towards what President Trump hopes to obtain from Congress: a "Space Force" as a full-fledged new branch of the military to take its place alongside the Army, Navy, Air Force, Marines, and Coast Guard. Despite the appeal of a Space Force to pre-adolescent boys whose mommies and/or daddies tuck them into Star Wars-themed blankets (and to a president whose emotional age matches the youngest of these boys), a Space Force is a terrible idea.

Our armed forces already suffer due to inter-branch rivalry. Although inter-branch competition can lead to some benefits (in much the way that a monopolistic company can benefit from the added incentives that come from competing one division against another), such competition within the military is a net loser: extra cost due to redundancy and coordination difficulties are the main problems. Creation of yet another branch would only exacerbate these problems.

Further, although the mere existence of a Space Force would not violate the Outer Space Treaty, which the US signed and ratified over a half century ago, some tasks that the Space Force might undertake in the future could violate the treaty. Even before we reach that point, however, the Space Force creation signals a US commitment to militarize space and thus could spur a dangerous arms race.

But maybe I'm wrong about all of that. Or maybe the idea of a Space Force is just so cool that its costs are worth bearing for the boon in recruiting. Let's put the policy questions aside for now. Instead, I want to ask a different question: Would a Space Force be constitutional?

Tuesday, August 14, 2018

The Post Joins the Right-Wing Freakout Over Medicare for All

by Neil H. Buchanan

Republicans are understandably having fits about the increasing popularity of Democrats' plans to expand eligibility for Medicare to the entire U.S. population.  Should this popularity not also be great news for Democrats, as a matter of both politics and problem-solving policy?  Surprisingly, it turns out that there are some prominent liberal-ish voices that are freaking out about Medicare for All, and I do mean freaking out.

Until now, it has been possible to imagine that the Democrats and independents who opposed a single-payer system were doing so because they viewed it as political suicide or because it seemed too difficult to do as a matter of policy mechanics.  Are those excuses still viable?

The latter argument became untenable when it dawned on Democrats that there was already a popular single-payer system that serves 44 million Americans.  The worry about "scaling up" is usually reserved for cases in which a small pilot project in a few cities has proven useful and it is unclear whether a national system would be feasible.  Medicare, however, is already scaled up to an enormous size, and increasing its reach to the remainder of the population is not fundamentally daunting.

Setting that issue aside, the other excuse among non-Republicans who have long opposed single-payer plans -- the claim that the public would never support it -- is pretty obviously testable against the evidence of whether the public actually supports it.  And in pleasingly increasing numbers, they do.

This means that the non-Republicans who continue to be opposed must either have some variation on the scaling-up argument or some other substantive reason to oppose Medicare for All.  It turns out that they have neither.  Instead, they have resorted to anti-government rhetoric, and they sound no different from Republicans when they start warning darkly about how the government would "take over one-fifth of the economy" or impose a huge tax increase or whatever.

In short, those supposedly sober-minded non-Republicans are resorting to scare tactics, trying to get people to oppose Medicare for All simply by calling it a Big Government program.  It turns out that the editorial board of The Washington Post is among the purveyors of this nonsense, and now The Post's fact-checker has even gotten in on the act.

Monday, August 13, 2018

Is the Court a Court Redux?

By Eric Segall

Last week at the Southeastern Association of Law Schools (SEALS) conference, I attended a session on constitutional law works in progress. Although my paper did not directly address the subject, we ended up having a long conversation about whether the Supreme Court is really a court. My 2012 book Supreme Myths argued that the Supreme Court as an institution does not take prior positive law (text, precedent, historical sources) seriously enough to warrant the label "court." I argued both in the book and during the conference that giving judges unreviewable power for life, and then asking them to resolve many of society's most difficult social, political, economic and legal questions based on vague text and contested history, will inevitably result in all-things-considered decisions in the cases the Justices care deeply about.

The fact that the Justices reach unanimous decisions in almost half their cases is irrelevant to my thesis because they choose their own cases and quite self-consciously make sure much of their docket consists of controversies that do not raise important political issues that most Americans care about. If all their cases involved issues like abortion, affirmative action, and separation of church and state, then most of their decisions would in fact be decided along ideological lines.

The push back to these ideas from, among others, Professors Mark Graber, Chris Lund, and Evan Zoldan, and my responses, are the subject of this post. These exchanges were polite, provocative, and in the spirit of gaining better understandings of each other's positions.

Friday, August 10, 2018

Masterpiece Cakeshop and Disparate Impact

by Sherry F. Colb

In my Verdict column today, I talk about a law, proposed but defeated in Lower Austria, that would have required Jews and Muslims who wanted Kosher and Halal meat, respectively, to register as observant Jews and Muslims.  My post here is not about discrimination in Austria, but it revolves around a somewhat related question that arose in a case before the US Supreme Court this past term: How should the Constitution define discrimination on the basis of religion?

Toward the end of the term, the justices narrowly decided Masterpiece Cakeshop v. Colorado Civil Rights Commission. To refresh your recollection about the case, it involved a baker (Jack Phillips, owner of Masterpiece Cakeshop or "MC") who refused to prepare a wedding cake for a same-sex couple that had requested one. The couple complained to the Colorado Civil Rights Commission, and the latter found that MC had violated the Colorado anti-discrimination law by refusing the couple a cake. MC defended itself with the argument that it had a First Amendment right not to "speak" a message with which it disagreed through the creation of a same-sex wedding cake and offered a second argument that the Colorado commission had engaged in religious discrimination by finding against MC (but not an experimented-upon secular baker), because MC had a religious reason for refusing the couple a wedding cake. Ultimately, the Supreme Court determined that one of the commissioners in the Colorado commission had exhibited anti-religion bias in describing the case and that this bias tainted the decision of the court that affirmed the finding of anti-gay discrimination.

Others have noted the troubling inconsistency between the way the Court resolved MC and the Court's unwillingness to allow the President's unrelenting racism against Muslims to infect the third travel ban that he issued and that the Court upheld. Michael Dorf and I have both observed that the supposedly offensive remarks by the lone commissioner were not actually offensive at all. He said that people have historically committed atrocities and invoked religion as the basis for the atrocities. That is not only not biased but a plainly accurate statement: the Spanish Inquisition and the Crusades are just two examples. The man also said that it is despicable when people invoke religion as a justification for hurting others. Well, it is, isn't it? If someone excluded a customer from his store on the basis of race and invoked some passage from the Bible about the curse of Ham or the creation of white, black, red, and malay, to remain separate, most people would call that despicable. No religious bias there.

It is useful to think about one of MC's arguments that the Court felt no need to consider (yet). The argument is that applying the anti-discrimination law to MC would discriminate against it on the basis of religion. I had a conversation with someone around the time that the case was argued. He said that both sides have a good claim of discrimination. I asked what sort of discrimination claim did MC have? He said that the claim was that Colorado was discriminating against MC. I asked on what grounds anyone would claim that Colorado was discriminating, when it was simply applying anti-discrimination law to someone who happened to be acting on the basis of a religious motive. He just shook his head and repeated that that's what people were saying.

Thursday, August 09, 2018

Justice-to-be Kavanaugh and the Inevitable Backlash

By Eric Segall

I wrote an essay for SLATE this week making a non-partisan case against the nomination of Brett Kavanaugh. I concede that he is eminently qualified to be on the Court, and I’ll take it as an article of faith that he is a man of strong character and an all-around good guy. Nevertheless, there are compelling reasons why even Republican Senators should vote against him. I’m not naïve enough to believe any of them will, but understanding why they should reveals some interesting aspects of the relationship between the Supreme Court and the rest of our political system.

Wednesday, August 08, 2018

How to Retaliate for Garland

by Michael Dorf

In my latest Verdict column, I explain why I declined to sign a letter from 72 former law clerks of Justice Kennedy in support of the confirmation of Brett Kavanaugh to the Supreme Court. To summarize, I argue: (1) Kennedy clerks do not have any special insight into Kavanaugh's qualifications in virtue of having clerked for Kennedy; (2) the letter purports to reflect a set of politically diverse views, but in fact nearly all of the signers are very conservative; and (3) the letter tacitly assumes without defending the controversial position that the role of the Senate should be limited to examining the professional credentials and judicial temperament of the nominee. Here I want to elaborate on why I think that assumption is wrong under current conditions.

Tuesday, August 07, 2018

Is It Time to Ease Off On the Media Criticism?

by Neil H. Buchanan

It seems impossible to have anything but a love-hate relationship with the American media.  On the "love" side, not only is an independent press an absolute necessity for a free society, but the mainstream media has done its job amazingly well at many times during the Trump era.  With The Washington Post taking a clear lead, but with ample and impressive assists from The New York Times as well as CNN and other outlets, the press has been the source of almost every investigative bombshell that has put Donald Trump's presidency (quite rightly) in peril.

On the "hate" side, however, the American press continues to lapse into various forms of the conventional wisdom, sycophancy, false equivalence, and laziness that we have witnessed for years (most prominently in the run-up to the Iraq War in 2003).  All of that was bad enough when the threats to American freedom were the slow bleed of voter suppression, money-driven politics, and all of the other familiar problems that led to the metastasis of the radical-right Republican Party of the twenty-first century.  Under Trump and his pliant party, it seems unforgivable.

Unfortunately, the press's willingness and ability to confront Trump and call out his lies has resulted in Trump's proto-fascist tendencies coming to the fore, with increasingly unhinged attacks on the press -- not just criticisms of perceived mistakes in doing their work, but claims that they are terrible human beings, which has predictably resulted in Trump's fanatical followers threatening members of the media with violence.

The past week or so has been so bad that it is no longer surprising (though it should still be shocking) to see predictions from commentators that Trump will soon have "blood on his hands" as well as warnings about "deadly violence" when someone takes the fateful next step and attacks reporters violently.  Claims by Trump's enablers that he is merely attacking bad reporting are simply false, and his followers seem unmistakably to be getting the message.

In an environment that has become this dangerous and volatile, is it now necessary for those of us who criticize the press on the merits (that is, demerits) of their coverage to cut it out?  When is even principled criticism a bad idea?

Monday, August 06, 2018

Abolish ICE versus End the IRS: Still No Real Equivalance

by Neil H. Buchanan

The new tut-tutting move on the op-ed pages is to say that Democrats are moving too far to the left, which is sometimes made as a definitive claim and other times as part of a "Democrats have an identity crisis" rerun of old columns.  In any case, with the continued popularity of Senator Bernie Sanders among many Democrats, combined with the emergence of Alexandria Ocasio-Cortez as a new face on the left, Republicans and many pundits are now saying that the Democrats are becoming full-on socialists.

That is nonsense, of course, for reasons that I will explore in a pair of columns next week.  Today, however, I want to focus on what is perhaps the most plausible -- or, more accurately, least implausible -- example of this supposed lefty extremism among the Democratic base: the proposal to "Abolish ICE."  This is a relatively new proposal embraced by many progressives that would eliminate the U.S. Immigration and Customs Enforcement agency.

The reason that I call this accusation the least implausible among the talking points against progressive Democrats is that the idea of abolishing an agency that enforces immigration law inevitably plays into the false claims that Democrats want "open borders."  And when proponents of abolishing ICE explain that they do, in fact, still plan to enforce immigration laws, their defense can look an awful lot like a pointless and downright silly exercise in relabeling.  "Don't like ICE?” they might seem to be saying, “No problem.  We'll replace it with a new agency, which we'll call Not-ICE."

My snarky turn of phrase in that last sentence, in fact, mirrors an attack that I have made against Republicans who have talked about "ending the IRS."  That proposal actually gained steam on the right a few years ago, and I commented back then that the Republicans would end up creating an agency called Not-the-IRS and then declare victory.

The ridiculousness of the relabeling exercise was so obvious that even Senator Marco Rubio attacked his colleague Ted Cruz during the 2016 presidential primaries, pointing out to listeners at a joint press conference (sometimes wrongly called a "debate") that Cruz had proposed to rewrite the entire U.S. tax code, and "[s]omeone's going to be collecting [your proposed] tax."

Is Abolish ICE just a lefty equivalent of End the IRS?  Actually, no, even though the superficial similarity is there.  But because of that superficial similarity, it is unfortunate (though understandable) that progressives have adopted this rallying cry.  In a superficial media culture, this is an unforced error.

In any case, having said that this comes closer than usual to looking like true equivalence between Republicans and Democrats, I will spend the rest of this column explaining why it is, in fact, very much another example of false equivalence.  Abolish ICE and End the IRS, in the end, could not be more different.

Friday, August 03, 2018

Employers, Free Choice, and Humane Eating

[Note to readers: My new Verdict column is now available, in which I discuss the Trump Administration's trial balloon regarding an executive order to reduce capital gains taxes.  Among other things, I argue there that such an order would clearly exceed the president's authority.  Some readers might wonder, however, whether anyone would have standing to challenge such an order.

[I did not discuss standing in the column, largely because the column was already too long.  I can say, however, that the academic paper from which I drew some key points for that section of the column, by Daniel Hemel and David Kamin, did address the standing issue.  They concluded that "states, charitable organizations, and brokers subject to statutory basis reporting requirements," among others, would likely have standing.  I realize that there are no definitive analyses, especially when it comes to standing, but this one seems pretty clear-cut to me.

[Even if I am wrong, however, lack of standing would not change the analysis in my column, the bottom line of which is that the Trump proposal is politically great for Democrats.  Indeed, it might actually be even better for Democrats if Trump did this and it was unchallengeable in court, because it would look even more like executive overreach and thus be a more potent campaign talking point.

[In any event, the column below is not about taxes or standing at all.]

by Neil H. Buchanan

Anyone who wants to understand the ethical case for veganism should read the engaging book by my co-bloggers Sherry Colb and Michael Dorf, Beating Hearts: Abortion and Animal Rights (Critical Perspectives on Animals: Theory, Culture, Science, and Law).  Because I share this platform with Professors Colb and Dorf, I typically show my respect for the concept of comparative advantage by letting them cover the animal rights beat, while I limit myself to an annual "veganniversary" column.  There are occasional exceptions, however, and this year is one of them.

Last week, I commemorated my ten-year veganniversary by noting (among other things) the positive trends in vegan-friendly eating in the U.S. and around the world.  Because there was so much to say in that column, I decided to write this follow-up column discussing a recent article in The New York Times that represents the continuing negative representation of vegans in the media.

Sadly, it remains true that even purportedly neutral reporting in a major newspaper is still infused with sneeringly negative comments about vegetarians and vegans, as well as unchallenged misinformation.  The world of restaurants and grocery stores is (as I reported last week) moving in the right direction at an accelerating pace, but even people who view themselves as informed modernists continue to say outright ridiculous things about vegans and animal rights.

Thursday, August 02, 2018

SCOTUS Term in Review: Taint, Complicity, and Polarization

by Michael Dorf

Today (beginning at 9 am Eastern time) I will once again be participating in the annual Practicing Law Institute Supreme Court Review in NYC. If you're interested, it may still possible to sign up, at least for the online or recorded version. I'm on a fair number of panels, including the overview panel. Here I'll preview some of what I plan to say for the overview panel.

Wednesday, August 01, 2018

A Few Recent Un-Great Moments in Right-Wing Punditry

by Neil H. Buchanan

It is quite possible that punditry does not matter.  Perhaps journalists, political junkies, and policy wonks are all engaged in a completely useless exercise on a daily basis, with everyone involved pretending that what they are saying and writing is important.  The world, meanwhile, might not take any notice or be affected in any way.

I have argued, for example, that Paul Krugman's career as a pundit makes it extremely difficult to imagine that anything written on the op-ed pages of even the most influential newspaper in the world ultimately has any influence.  With the combination of Krugman's considerable communication skills and his unsurpassed credentials, one would think that we would be able to see how he has changed something, somehow, at some time.  Can we?  I have never been able to find even one clear example.

On the other hand, it is possible for no single pundit to matter but for all punditry combined to matter.  The best example of this phenomenon, in fact, is a prominent example of one of Krugman's individual failures to change the narrative.  In 2010, the Obama Administration decided to "pivot" to focus on deficit reduction, even though (as Krugman wrote again and again, with no one able to offer a coherent argument against him, then or now) that this was exactly the opposite of what we needed at the time.

Why did that happen?  Arguably, punditry made it happen.  The Obama people were trying to impress the people who collectively drive the conversation, especially the people who present themselves as that most desired breed: reasonable centrists.  One of the religious tenets of the pseudo-centrist pundits is that deficits are bad, bad, bad, and President Obama and his people felt the need to get those oh-so-sensible purveyors of the conventional wisdom on their side.

That that was a suckers' game was obvious even at the time, especially when the false centrists ignored the fact that Obama had actually offered the fiscal reactionaries all that they ever asked for (and then some), yet those pundits kept blaming him for ignoring their bible of righteous pretense -- the ridiculous Bowles-Simpson report.  Taking yes for an answer would have required the pundits to agree that one political party was being "reasonable" (at least by the pundits' standard), and saying that Democrats are right while Republicans are wrong is not allowed.  Therefore, Obama's proposals had to be deplored as the products of left-wing ideology, no matter their actual contents.

In any case, if punditry ultimately does not matter, then I am certainly one of the policy wonks who spends far too much time thinking that it does.  But it is the possibility that it does matter in the aggregate that keeps me engaged, staying ever vigilant for examples of bad (and very occasionally good) developments in the self-reinforcing conversation among those whose day jobs involve writing op-eds and talking with other people who write op-eds (often while appearing on cable TV shows in which they discuss each others' op-eds).

All of which is a preamble to justify offering some comments on a few recent opinion columns that have struck me as particularly galling.  Again, I can easily make the argument that none of these examples matter individually.  And the four that I have chosen are not even discussing the same topic.  Nonetheless, if these four examples are an indication of where things might be headed, they are worrisome in a variety of ways.

Tuesday, July 31, 2018

Abortion and Religion

by Sherry F. Colb

Have you ever seen an anti-abortion sign or ad or video? Did it contain a picture of an embryo or fetus? If it did, was the fetus relatively far along its path to forty weeks gestation? I am betting that it was. In my latest Verdict column, I discuss the question whether opposition to abortion can be feminist. In the course of that discussion, I talk about a video in which a doctor who says he has performed over twelve hundred abortions shows the viewer what a D&E (Dilation and Evacuation) looks like.

At the end of the video, the doctor surprises us by announcing that he has stopped killing babies for money. I was not surprised by this announcement, however, because he used various words and expressions that demonstrated, perhaps inadvertently, that he is part of the pro-life movement.  He called the person who performs the abortion an "abortionist" (which is a little like calling a banker who happens to be Jewish a "Shylock"), and he repeatedly referred to the fetus as a "baby." One would have to be unfamiliar with the abortion debate in America to think that this doctor was on the pro-choice side of it.

Still, his reference to the fetus image as a baby felt fair enough. Like a baby, the fetus had a head, arms, legs, a brain, and a spinal cord. I would argue that it is not a baby until it is also sentient--capable of experiencing sensations or emotions such that it has a subjective state of wellbeing. But if we are judging by what it looks like, we would probably assume based on appearance that it already does have subjective experiences. After all, it looks a lot like a baby.

Monday, July 30, 2018

Comity of Errors: The Stealth Attack on LGB Diplomats and International Organization Employees You've Never Heard About

by Diane Klein

Change is afoot in official U.S. policy towards lesbian, gay, and bisexual foreign diplomats and international organization employees serving in the United States.  With so much attention rightly being paid to the crisis at the border, caused by the Trump Administration's cruel and shameful family separation and border control policies, it's understandable that another family separation policy - this one directed at a much more "elite" group - has escaped our notice.  But its toxic blend of racism, xenophobia, and homophobia makes it an unmistakably Trumpian hat trick.

The latest change in policy is signaled by a letter sent to at least one U.N. organization on July 20, 2018, published here for what is believed to be the first time.  The letter is not yet embodied in a Diplomatic Note, the official form of communication between the U.S. government and foreign governments, although it is similar in form.  The upshot of the letter is that life is about to become much more difficult for foreign same-sex couples from any of the more than 80 countries that would not recognize their unions.  More specifically, same-sex partners of LGB employees of international organizations (like the UN), from countries not recognizing same-sex marriage, may no longer qualify for the "derivative" visa that allows them to live with their spouse or partner in the U.S.  Even if the couple are already living here and married under U.S. law, if the "sending State" (their home country) does not recognize same-sex marriage, their marriage may cease to be "accredited" for visa purposes, potentially breaking up families headed by LGB couples, one of whom may be forced to leave the U.S. on as little as 30 days' notice.  The new policy goes into effect just two months from now, on October 1, 2018.

Friday, July 27, 2018

Ten Truths About the Second Amendment

By Eric Segall

On Tuesday, the Ninth Circuit Court of Appeals invalidated Hawaii's requirement that people receive a license before openly carrying a gun in public. This aggressive act of judicial review might be reviewed by the Supreme Court, especially if Brett Kavanaugh is confirmed as a Justice. The Supreme Court has not reviewed a Second Amendment case since 2010, but as I argued here, it is likely the Court will return to this area of law in the near future now that Justice Kennedy has retired. Here are ten truths about the Second Amendment.

Thursday, July 26, 2018

Let's Be Clear About What Makes Kavanaugh a Bad Choice

by Neil H. Buchanan

There is no question that Brett Kavanaugh's elevation to the Supreme Court would cause a catastrophic change in American jurisprudence.  Indeed, the same can be said of anyone whom Donald Trump might nominate to fill the retiring Justice Anthony Kennedy's seat.  In that context, I was happy last week to receive a letter being circulated by some law professors in opposition to Kavanaugh's nomination, and then to see that letter reproduced as a guest post on this blog a few days ago.

The letter was styled as an appeal to Republican Senators Susan Collins and Lisa Murkowski, both of whom have records suggesting support for Roe v. Wade, which any Trump nominee would vote to overturn.  Writing such a letter is always difficult, however, because it will almost invariably include particulars that might not be germane or necessary to the point but that will put off potential signers.  In this case, I found myself unpleasantly surprised by a negative comment in the letter about a recent Supreme Court case, South Dakota v. Wayfair, which was used to demonstrate Justice Neil Gorsuch's willingness to overrule precedent.

To be clear, I agree that Gorsuch -- like his soulmates Justice Clarence Thomas and Kavanaugh -- thinks nothing of throwing over precedent whenever it suits his ideological purposes.  This is a serious problem, but not every example of a vote to overrule is as good as any other, and the Wayfair case is in fact a particularly unhelpful example.

To be even more clear, I want to emphasize that nothing I say here is meant to disparage the authors of the anti-Kavanaugh letter.  They plainly proceeded in good faith, and I emphatically agree with their conclusion.  My argument here is limited to the claim that, in their effort to build a case against Trump's nominee, they included one unfortunate example.

Because I had recently been thinking anew about Wayfair, this gives me an opportunity to discuss some interesting aspects of the case on their own merits, a discussion that I think provides some important lessons.  After discussing those issues, I will return to the question of how one decides whether to sign onto a group letter with which one disagrees only in part.

Wednesday, July 25, 2018

From Defensive Crouch Liberal Constitutionalism to Litigation Jujitsu

by Michael Dorf

In a couple of recent essays, I explored avenues by which liberals might be able to limit the damage in the coming era of reactionary Supreme Court jurisprudence. Borrowing a term coined by Mark Tushnet, I proposed reinvigorating "defensive crouch liberal constitutionalism." Part 1 (which appeared both on Dorf on Law and on Take Care) explored opportunities to make conservative arguments based on original meaning with a focus on the emergence of a Fourth Amendment jurisprudence keyed to property more than privacy. Part 2 (which also appeared both on Dorf on Law and on Take Care) described how, in a post-Roe v. Wade future, Justice Clarence Thomas might cast a decisive fifth vote to invalidate a federal abortion ban based on his view of the limits of the Commerce Clause.

In an essay on the Volokh Conspiracy on Monday, Ilya Somin added an important caveat to that last point: As Justice Thomas has previously made clear, he will only consider voting to overrule past precedents based on evidence of original meaning where counsel raise the argument. Prof. Somin thus echoes my advice to pro-choice lawyers to be sure to raise the federalism claim should the time come, not to sit back and wait for Justice Thomas or anyone else to do the work for them.

That point in turn has led me to think that while "defensive crouch" may have been an appropriate metaphor for the range of positions Prof. Tushnet was describing when he used the term back in 2016, it is not quite right as a description of what I have been proposing. One uses a defensive crouch to defend ground one occupies, and certainly that is part of what liberal lawyers must try to do. But I am also advocating using conservative jurisprudence affirmatively. Here jujitsu--in which one uses one's adversary's strength against him by redirecting it--seems a better metaphor. (Everything I know about the variations on this martial art form from Japan and/or Brazil comes from a few minutes of Googling, so if you want to write in a comment that I have it wrong, that's fine. If there's a better metaphor for using your opponent's strength against him, I'll consider yet another rebranding. Now back to the substance:)

In the balance of this essay I'll provide three examples of litigation jujitsu, involving, respectively: (1) commercial speech and the labeling of plant-based milk; (2) commandeering and sanctuary cities; and (3) the Sixteenth Amendment and SALT deductibility.

Tuesday, July 24, 2018

Veganism, Year Ten: Neoliberal Animal Welfarism?

by Neil H. Buchanan

Ten years ago today, in a column here on Dorf on Law titled "Meat, Dairy, Psychology, Law, Economics," I described why I had decided to become a vegan.  Every year since then, in what I have taken to calling my veganniversary columns, I have written a followup column on this topic.  (See 2017, 2016, 2015, 2014, 2013, 2012, 2011, 2010, 2009, and the original from 2008, along with a second column a week later).

My columns over the years have covered a wide variety of topics, sometimes simply offering updates on practical matters that vegans face in the non-vegan world but other times using veganism as a lens through which to view other issues (for example, my column last year discussing hipsters and veganism).  Today, I will do a bit of both, offering some quick thoughts about the practicalities of being a vegan before turning to a discussion of how vegan issues arise in more general political debates.

The short version of this column is that it has become very easy to be a vegan in terms of day-to-day living, but for those of us who became vegans for ethical reasons, it can often be difficult to navigate the policy terrain, for surprising reasons.

Monday, July 23, 2018

Why More Than 200 Law Professors Think Sens. Collins and Murkowski Should Vote Against Brett Kavanaugh

by guest bloggers David S. Cohen, Jessie Hill, Maya Manian, Jessica Silbey, and Mary Ziegler

Upon Brett Kavanaugh's nomination to the U.S. Supreme Court, the five of us observed the immediate flurry of academic commentary and predictable speculation about the fate of Roe v. Wade under a newly-composed Supreme Court.  While participating in academic discussion and analysis is a key part of our jobs as law professors, we were also collectively struck by the concrete reality of the threat to forty-five years of jurisprudence protecting the right to choose.  We wanted to take action, and we settled on a strategy of writing directly to Senators Susan Collins and Lisa Murkowski - two Republican Senators who are pro-choice and whose votes are critical to Kavanaugh's confirmation in a Senate that is divided 50-49.  We wanted to make clear to those Senators the extent of the risk to Roe v. Wade, as well as the consequences of overruling Roe - not just for women in the United States, but also for the doctrine of substantive due process that has developed from Roe and Planned Parenthood v. Casey, through Lawrence v. Texas and Obergefell v. Hodges.  And we felt that as law professors, we could speak with particular authority about those matters.

After jointly drafting this letter, we set out to solicit signatures from our fellow law faculty members; we collected 191 in a single day.  (Law professors interested in signing on can do so here.  Footnotes have been omitted but will be added to the final version before sending.)

Saturday, July 21, 2018

Seventh in a Series: Adult Coloring Book, "The Lawyers of Trump-Russia" (feat. Michael Avenatti)

by Diane Klein

On Friday, July 20, 2018, we learned what few of us could have been surprised to hear: that former Trump personal attorney Michael Cohen taped conversations he had with Donald Trump, including pre-election conversations about payments made to Karen MacDougal, the former Playboy Bunny with whom Trump had a 10-month affair in 2006.  This seems likely to set off yet another "publicity tour" by attorney-commentator Michael Avenatti, whose representation of adult-film actress Stephanie Clifford (aka "Stormy Daniels"), has been a thorn in Trump's side since spring 2018 - and who predicted the existence and release of these tapes on May 30, 2018.  In the aftermath of the raid on Cohen's office, as far back as April, 2018, there was speculation about such recordings, but the Washington Post and others expressed skepticism about whether any such recordings would include Trump.

Friday, July 20, 2018

Reinvigorating “Defensive Crouch Liberal Constitutionalism” Part 2: Will Clarence Thomas Save Abortion Rights?

by Michael Dorf (cross-posted on Take Care Blog)

If the Senate confirms Judge Brett Kavanaugh to replace Justice Anthony Kennedy, the Supreme Court will almost certainly move to the right on a range of issues, most prominently abortion, where Kennedy wrote or joined key decisions upholding what he and two of his colleagues once called “the central holding” of Roe v. Wade. The post-Kennedy Court will cut back on the federal constitutional right to abortion and could well eliminate it entirely.

What then? Public discussion of a post-Roe future has assumed that the issue would “go back to the states.” Champions of abortion rights would be disappointed but not utterly defeated, as efforts might then focus on making transportation available from anti-abortion states to states where it is legal.

The US would look much like Ireland prior to its recent passage of a referendum liberalizing abortion regulation. Just as Irish women seeking abortions went to England, so women from Louisiana seeking abortions would travel to New York. Because the distances here are greater, abortion would be less accessible, especially to poor women, but laws banning public funding of abortion already make abortion all but impossible for many poor women in the US.

Yet what if the assumption of state-by-state regulation is wrong?

Thursday, July 19, 2018

Will Trump Go Off the Rails Again About the Putin Press Conference?

by Neil H. Buchanan

It did not even take eleven months for Donald Trump to go from the Charlottesville self-revealing crisis to the Helsinki self-revealing crisis.  True, he has had plenty of crises in between, most of which have also in one way or another revealed his true self -- perhaps most prominently his putting-children-in-cages-and-lying-about-every-aspect-of-it display of abject cruelty that is still ongoing, but also including his decisions to fire and humiliate staff, withdraw from the Iran nuclear deal with no alternative in place, insult and threaten democratic allies, unconditionally befriend North Korea's murderous dictator, declare victory in the War on Poverty as an excuse to inflict further harm on poor people, and on and on and on -- but there is something about his embrace of white supremacists and his even tighter embrace of Vladimir Putin that sets these two crises apart.

One way to know that these crises are different is simply by watching how flustered Republicans become when dealing with various public relations crises, and they are truly panicking right now (as they did after Charlottesville).  That is not to say that Republicans are going to do any more now than they did last August after Trump's "very fine people" reference to a crowd of hateful men shouting "Jews will not replace us!"  If anything, Republicans this time seem not to care enough even to try to pretend that they are thinking about taking action.  Still, their defensiveness and worry that Trump might actually be doing irreparable damage to their electoral chances (because principle means nothing to them, of course) is "blinking red," to co-opt a phrase much in the news recently.

But even beyond the tumult among Republicans, the more telling common aspect of the two big crises is Trump's response to criticism.  He never takes criticism well, of course, and he always defends himself with a blur of lies and distractions, but when it comes to white supremacists and Putin/dictators, Trump cannot contain his disappointment upon learning that his true views are utterly toxic.

Wednesday, July 18, 2018

Dogs and the Fourth Amendment

by Sherry F. Colb

In my Verdict column this week, I discuss the case of Collins v. Virginia. In it, the Supreme Court recently held that if police want to search a vehicle located within the curtilage of a home, the Fourth Amendment requires them to get a search warrant. This answered an open question about the scope of the "automobile exception" to the warrant requirement, which generally allows police to search a car based on probable cause alone. What made this case different was the fact that a police officer had had to walk across a driveway to reach the vehicle and that walk included an area that he would not have had to cross to get to the front door.

In this post, I want to focus on a different sort of property that police sometimes disturb in the course of carrying out searches and seizures in and around a person's home. That property is canis lupus familiaris, or the dog.

Tuesday, July 17, 2018

How Bad Will Things Become? Part 1

by Neil H. Buchanan

The last 24 hours have been truly astonishing.  A few days ago, I had dreamed up the title of this column, "How Bad Will Things Become?" because I intended to write about how extreme the new Supreme Court is likely to be, far beyond what most commentators have yet realized (or, if they have realized it, have been willing to articulate).  But then the Trump-Putin press conference happened, and I am truly at a loss.

Because legal commentary is the avocation for which I am actually qualified, I will go ahead and write some of what I had planned to write today.  But before I do, I can only say ... Holy freakin' hell!!  What is going on?  Donald Trump stood next to the man who helped him steal the 2016 presidential election and, as a former CIA Director put it, made a series of unhinged statements that exceeded the bar for high crimes and misdemeanors and were "nothing short of treasonous."

To be clear, the offenses in the Constitution that justify the president's impeachment, conviction, and removal from office are "treason, bribery, or other high crimes and misdemeanors."  That is an or, not an and, so it is not even necessary to wonder what constitutes high crimes and misdemeanors on this point.  Treason is an independently impeachable offense.  We will, of course, now argue about what constitutes treason, but given how promiscuously Republicans have thrown that word around in the past ten years or so, that could be a fun argument.  Except for two things.

Monday, July 16, 2018

The Difference Between Presuming Innocence and Presuming Victim Perjury in Acquaintance Rape Trials

by Sherry F. Colb

The New York Times recently published a letter that I wrote about rape and statutes of limitations. I suggested that one reason to abolish statutes of limitations is the need to prosecute a category of crime that has long received little attention, acquaintance rape. Instead of calling such cases “swearing contests,” I proposed, we need to understand that victims are credible eye-witnesses while criminal defendants are not.
In response to my letter, some readers accused me of wanting to shift the burden of proof and eliminate the presumption of innocence. I am interested in neither. Here I want to explain the difference between the presumption of innocence and burden of proof, on the one hand, and the presumption that an alleged rape victim is lying, on the other.

Friday, July 13, 2018

More Republicans Abandon Ship, But Nothing Changes

by Neil H. Buchanan

Having grown up in a centrist Republican household, but having been a Democrat for all of my adult life, I have long been fascinated by the people who have continued to affiliate with the Republican Party.  The inexplicable nature of continued party loyalty as Republicans have accelerated their flight from sanity and their embrace of outright nastiness has led me over the last few years to write columns with titles like, "What Would It Take?" (as in, what would it take for a person of decency finally give up on the Republicans?), "The Neanderthal Question in U.S. Politics" (too subtle?), and the plaintive (if self-derivative), "Seriously, What Would It Take?"

One of the fascinating aspects of the Trump era has been the self-regenerating nature of what seems to be a constantly imploding Republican Party.  There are periodic spasms of people jumping ship, but the ship never seems to be any emptier.  (Sorry for the multiply mixed metaphors.)  It is not hydra-headed (ibid.), however, because the party is certainly not growing, and even if one includes non-party members, Trump's support in the polls remains within a very narrow range.

After the worst outrages -- the Hollywood Access tape, firing Comey and bragging that he did it to obstruct the Russia investigation, Charlottesville and "very fine people" -- there are a lot of Republicans who announce that they have finally had enough.  Some return (as many, such as now-former Congressman Jason Chaffetz, notoriously did after Trump's "locker room talk" explanation satisfied his base in October 2016), but somehow even the non-reversed public defections never seem to amount to much.

Now, spurred by the cruelty of the Administration's decision to take screaming children away from their horrified parents at the border, we have seen another round of "I've had enoughs" from lifelong Republicans.  Will this time be different?

Thursday, July 12, 2018

Originalist Judicial Activism

By Eric Segall

Now that President Trump has named Brett Kavanaugh as his nominee to replace retiring Justice Anthony Kennedy, we can expect the confirmation process charade to proceed apace. Judge Kavanaugh will dodge most if not all the hard questions put to him by members of the Senate Judiciary Committee, the Democratic members will complain loudly, and then the nominee will be confirmed by a party line or almost party line vote.
One word we can expect to hear a lot during this process is “originalism.” More on that below. One phrase we likely will not hear uttered by folks on either side of the aisle is “judicial activism.” That is truly unfortunate.

Complicity Jurisprudence as the Next Conservative Opt-Out from Modernity

by Neil H. Buchanan

How much interaction with unpleasant reality must anyone be expected to endure?  That would not seem to be a particularly pressing legal issue, but it seems that it has been keeping the Supreme Court's arch-conservatives up at night.  Americans who wish that they did not have to go out in the world and interact with other people of different religions, races, beliefs, and political views seem to have found salvation (pun intended) in a bloc of justices who are eager to protect fragile conservatives from being "complicit" in things that make them uncomfortable.

That is the thesis of my new Verdict column, in which I tie together the Court's recent anti-union case (Janus v. AFSCME) and its run of cases in which Christian conservatives have been unexpectedly validated by a Court that says that they do not have to do things that they view as immoral.  My tone in the column is unsympathetic to the people who beg the courts to allow them not to participate in any way in unpleasant things, but I do want to spend some time here giving the instinct to self-separate its due.

Wednesday, July 11, 2018

Reinvigorating "Defensive Crouch Liberal Constitutionalism" Part 1: Originalism and Searches

by Michael Dorf

At no time since the appointment of Chief Justice Warren Burger in 1969 has there been a clear liberal majority of the Supreme Court. Yes, the Court has produced liberal decisions in various areas during the ensuing period, but always by picking up one or more conservative justices, often with the consequence that even liberal results were justified in conservative terms.

Justice Kennedy's majority opinion in Obergefell v. Hodges is a good example. While finding a right to same-sex marriage, it extols the virtues of marriage in a way that sounds in traditional conservatism, even to the point of insulting people who choose not to marry: "Marriage responds to the universal fear that a lonely person might call out only to find no one there." Lines like that are the price that we liberals grew accustomed to paying in order to secure liberal results based on conservative rationales.

Accordingly, in anticipation of a Democratic victory in the 2016 presidential election, some liberals  began to imagine an activist liberal agenda for the Supreme Court. They began to imagine, as Mark Tushnet put it in the title of a blog post on Balkinization in May 2016, "abandoning defensive crouch liberal constitutionalism." The election of Donald Trump, the Republicans' success in first denying to Merrick Garland and then granting to Neil Gorsuch the seat that became vacant when Justice Scalia died, and the anticipated confirmation of Brett Kavanaugh to take Anthony Kennedy's seat all mean that for the short-to-medium term, liberals will need to continue to practice defensive crouch liberal constitutionalism.

Tuesday, July 10, 2018

Polarization and the Kavanaugh Nomination

by Michael Dorf

As we approach what then-Senator Joe Biden memorably termed the "kabuki dance" of a Senate Judiciary Committee confirmation hearing for a nominee to the Supreme Court, staffers are no doubt busily assembling questions and follow-ups for the Senators to ask Judge Kavanaugh. The exercise is largely pointless. Judge Kavanaugh will not say that he has active plans to overrule Roe v. Wade or any other precedents--and that will be sufficient to satisfy at least one of Senator Collins, Senator Murkowski, and the three red-state Democrats who voted to confirm now-Justice Gorsuch. The only really open question is the final vote.

Monday, July 09, 2018

Why is Trump Now Pro-Life?

by Michael C. Dorf

Some abortion opponents argue that feminists ought not to favor abortion rights because women's access to abortion ultimately serves the interest of men who want access to women's bodies for sex without consequences. The argument is flawed. The feminist arguments for a right to abortion can be (and IMHO are) persuasive, regardless of whether some people support abortion rights for other reasons.

That said, the pro-lifers are not wrong that some men who support abortion rights do so in order to maximize their own freedom to objectify women. As Susan Brownmiller wrote last fall after the death of Playboy founder Hugh Hefner, a man living the Playboy lifestyle "refused to be cornered into marriage just because a young lady he had bedded had the misfortune to get pregnant." Brownmiller drew the obvious comparison between Hef and Donald Trump, who, she noted, formerly supported abortion rights.

In a 1999 interview with Tim Russert in contemplation of a run for the presidency, Trump said that while he hates abortion (presumably because he thinks it immoral), he is nonetheless "very pro-choice" and thus would not ban abortion or so-called partial-birth abortion. 1999 Trump doesn't say why he is very pro-choice, other than to note that he was raised in and lives in New York, but the viewer has little difficulty inferring that 1999 Trump was pro-choice for the sorts of reasons that other people who think abortion immoral (as I think it is with respect to most abortions of sentient fetuses) might nonetheless be pro-choice: because of the impositions that forced pregnancy imposes on women; because laws forbidding abortion reduce its safety but not its incidence; etc.

Maybe those factors partly explain why 1999 Trump was pro-choice, but Trump also presumably had a Hefnerian reason. After all, Trump is essentially a cruder version of Hefner, and the Playboy founder seems to have been almost as much a mentor to Trump as was Roy Cohn. We also have circumstantial evidence. Both Karen McDougall and Stephanie Clifford (aka Stormy Daniels) have said that when they were having affairs with Trump in 2006, he didn't want to use a condom. Perhaps Trump assumed that McDougall and Clifford were both using birth control, although one still wonders why he was not concerned about contracting an STD that he might then transmit to the mother of his then-infant son. But I digress. The main point is that Trump's whole playboy lifestyle and image revolved around treating women as sexual objects, for which ready access to abortion was useful.

Friday, July 06, 2018

Lawyers Who Participate in the USCIS De-Naturalization Task Force (and the Head of USCIS) May Be Engaged in Professional Misconduct

by Diane Klein

In mid-June 2018, the Director of the United States Citizenship and Immigration Services (USCIS), announced the formation of a new task force focused on de-naturalizing U.S. citizens.  This new office will be in Los Angeles, and is scheduled to open in 2019.

Like "voter fraud" and ICE "liberating" towns from MS-13, there is no substantial naturalization fraud.  There is no crisis requiring a "task force" or a new U.S. Citizenship and Immigration Services (USCIS) office.  This is another pseudo-problem, put forward to advance the Trump Administration's racist, populist, and nationalist themes, regardless of the evidence (or the lack of it), and to justify mobilizing government resources against vulnerable people.  This time around, those people are citizens.  Lawyers who participate in this project - to the extent it targets individuals on the basis of race, religion, or national origin, as it seems very likely to do - should know that they do so at the risk of violating their professional codes of conduct.

Thursday, July 05, 2018

Privacy and Anti-Gay Discrimination: What's Old is New Again

By Sherry Colb

My column on Verdict this week discusses the US Supreme Court's decision in Carpenter v. United States. The Court held there that the government must get a search warrant before obtaining cell site location information from a target's wireless carrier. This means that if the government wants to know your comings and goings over the course of some period of time, and it hopes to do so by looking at a record of your cell phone's approximate locations (revealed to and recorded by your carrier at regular intervals when your phone is on), it needs to first go to a magistrate and successfully apply for a warrant.

The lineup for the 5-4 decision was somewhat reassuring: Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Kennedy was not part of the five, so his departure should leave things unchanged for now in this one area of Fourth Amendment law.  In writing his opinion, moreover, Chief Justice Roberts said that people enjoy a reasonable expectation of privacy in the approximate locations where their cellphones (and therefore they) visit over time.

Why is the "privacy" formulation important? Because procedural (Fourth Amendment) privacy has sometimes been linked to substantive privacy, and substantive privacy under the Fourteenth Amendment includes such rights as contraception, abortion, and gay sexual relations.

Does this mean that I think the Chief Justice is now on board with protecting substantive privacy rights? No. I think he believes in digital privacy and chooses to rely on the phrase "reasonable expectations of privacy" that the Court has used since 1967 to refer to freedom from unreasonable searches. He is less inclined than some of his colleagues to throw out everything he dislikes.

Tuesday, July 03, 2018

The Supreme Court Free-for-All is Off to a Very Bad Start

by Neil H. Buchanan

For obvious reasons, the new Supreme Court vacancy has been dominating the news for the past week.  In the meantime, Justice Kennedy's retirement seems to have raised Donald Trump's spirits, and even though we have not completely forgotten about Trump's cruel immigration and refugee policies, the "Who will he pick?" story is exactly the kind of cliffhanger that the former reality TV huckster loves.

The media have all kinds of reasons to pump up the Supreme Court story, too, but I continue to believe that there really is no mystery about what will happen, as I will explain below.   I will then critique what is in the running to be the worst fact-check of all time.

Monday, July 02, 2018

Trump v. Hawaii and Chief Justice Roberts’s “Korematsu Overruled” Parlor Trick

by Anil Kalhan

In Chief Justice John Roberts’s 5-4 opinion in Trump v. Hawaii deeming President Donald Trump’s third Muslim ban legally valid, one passage stands out as judicial clickbait: its two-paragraph discussion of Koremtasu v. United States.
Korematsu, of course, is a justifiably reviled Supreme Court decision, one long regarded as a leading case in the American constitutional anti-canon. It is not surprising, therefore, that this passage in Roberts’s opinion has garnered widespread attention. In her dissenting opinion in Trump v. Hawaii, Justice Sonia Sotomayor welcomes the Court’s “formal repudiation of a shameful precedent” as “laudable and long overdue,” characterizing Roberts’s opinion as “tak[ing] the important step of finally overruling Korematsu.”
However, especially in the context of a decision validating a policy primarily motivated by anti-Muslim animus, there is little to find “laudable” in Roberts’s self-serving discussion of Korematsu. Clearly, Roberts saw “rhetorical advantage” (to borrow his own phrase) in characterizing Korematsu as affirming the deprivation of Japanese Americans’ liberty “solely and explicitly on the basis of race” and then proceeding to forcefully denounce the decision. But the Court deserves very little credit for the manner in which it has sought to clothe a decision upholding Trump’s Muslim ban in the garb of purporting to “overrule” Korematsu.

Saturday, June 30, 2018

Sixth in a Series: Adult Coloring Book, "The Lawyers of Trump-Russia" (feat. Rod Rosenstein)

by Diane Klein

As U.S. Attorney General, Jeff Sessions has been so prominent that much of the time - including in the midst of the current immigration crisis - he has vastly overshadowed the Deputy Attorney General, Rod Rosenstein.  And of course, under ordinary circumstances, most Americans cannot name the Attorney General, much less the Deputy.  But current circumstances are not ordinary, and with Sessions having recused himself from the Russia investigation, Deputy AG Rosenstein is in charge of this extraordinarily important legal and political undertaking - one that is putting him increasingly at odds with the Republican-controlled House.  On Thursday, June 28, 2018, he was back in the spotlight, being questioned by the House Judiciary Committee - and holding up admirably.

Friday, June 29, 2018

Once Again Imagining A Smaller Supreme Court (not by design)

by Neil H. Buchanan
Note to readers:  Because of travel commitments, I wrote the column below (to be published today, Friday the 29th of June) two days ago, in what turned out to be the few remaining hours before Justice Kennedy announced his retirement.  (I also wrote it pre-Janus, but that predictably terrible decision would not have changed anything here.)

When I wrote the column, therefore, my musings about Supreme Court departures were entirely hypothetical, and I honestly thought that the column was a bit self-indulgent because, as I put it in the second paragraph, I was simply following a stream of consciousness that had been sparked by the Travel Ban decision.

Well, unhappy surprise to all of us!  With Kennedy's announcement, I considered rewriting the column, but I have decided not to do so.  Indeed, the paragraph that I wrote that begins "As an aside" (after the "confirmation equation"), regarding unexpected Supreme Court openings, is already being proved prescient.

Accordingly, although I would surely change some things if I were to allow myself to rewrite this column, I am happy to ask readers to take a look at these thoughts about the future of the Supreme Court that were written in blissful ignorance of Kennedy's plans.  There will be much more to write in the weeks and months to come.

I am hardly the only person who, upon hearing that the Supreme Court's five conservative justices had upheld Donald Trump's Muslim Travel Ban, immediately thought about the stolen Supreme Court seat that Neil Gorsuch currently occupies.  Somewhere, Mitch McConnell and the Koch brothers are drinking a toast to their ability to hijack the U.S. Constitution.

In his latest Verdict column, Professor Dorf has tried to find some silver linings in the conservatives' travel ban decision, and his thoughts do offer some solace.  Here, however, I will follow my stream of consciousness and start to think about how the successful theft of Merrick Garland's seat will play out in the very near future.

[I should also mention that I wrote a Verdict column this week, too, and it discusses what was one of the only good high-profile decisions of the Court's term.  Even so, I have to admit that it was a tax case (or more accurately a Dormant Commerce Clause case that happened to have the word "tax" in it), so I tried to spice it up by contrasting the case with some bad decisions by the Court and an ominous hint that the conservatives are going to ramp up their attack on the neutral expertise of the administrative state.]

Where do we go from here?  More specifically, what happens after the 2018 midterm elections if one or more Supreme Court seats opens up before the 2020 general election?  I have a few thoughts.

Thursday, June 28, 2018

Stop Worrying About "Galvanizing" Trump's Supporters

by Neil H. Buchanan

The early part of this week saw the political chatter turn to another meaningless sideshow over "civility" and whether it is absolutely horrible that a few Trump Administration figures have been made to feel bad about themselves by members of the public.  It seems that some Americans are becoming unwilling to apply the usual rules to so-called public servants who are willing to enable a would-be king, and even though the restaurant owner who started the latest controversy was apparently polite in the extreme, that has not stopped the right-wing outrage machine (and, of course, Donald Trump himself) from going into overdrive.

As usual, Sarah Huckabee Sanders managed to tell the biggest whopper by responding to this social slight with the claim that "I always do my best to treat people, including those I disagree with, respectfully and will continue to do so."  The Washington Post's Jennifer Rubin had the perfect, deliberately understated response: "Anyone who has seen her sneer, insult and condescend to the press knows that’s not the case."

This is all an unnecessary distraction from Trump's actual policy outrages, but I am nonetheless glad that some commentators have said what needs to be said about the civility issue before it again fades away (until the next manufactured controversy).  In addition to Rubin (who had an even better followup piece), New York Times columnist Michelle Goldberg did a masterful job of showing why the tut-tutting by people who purport to oppose Trump is utter nonsense.

In particular, Goldberg called out The Post's editorial board for its false equivalence in saying that liberals should let Trump people eat in peace lest, say, anti-abortion protesters decide to harass their opponents.  She notes incredulously: "Of course, this is not hard to imagine at all, since abortion opponents have assassinated abortion providers in their homes and churches, firebombed their clinics and protested at their children’s schools."  Seriously, how detached from reality does one have to be not to remember such things and to claim that anything that liberals are now doing or saying is even close to what right-wing extremists have been doing since long before Trump came along?

Although I have nothing to add to the discussion about what counts as acceptable civility, I do want to weigh in on the latest round of hand-wringing in anti-Trump world about how this will all play out politically.  Bottom line: Stop worrying about whether this will make Trump's supporters (even more) angry!

Wednesday, June 27, 2018

Justice Kennedy's Retirement

by Michael Dorf

Today's announcement that Justice Kennedy is retiring has led immediately and understandably to speculation about how the process for replacing him will play out. This strikes me as silly. The GOP has 51 votes in the Senate. Mitch McConnell will make sure that a new justice is confirmed before the midterm elections or, in the worst-case scenario for Republicans--i.e., should the confirmation somehow be delayed until after the midterms and the Democrats take the Senate--in a lame-duck session. The new justice will certainly be at least as conservative as CJ Roberts, so regardless of how this goes, the Chief Justice is now the center of the Court.

Here are a few very preliminary observations:

In Janus, Collective Bargaining is the new Broccoli

by Michael C. Dorf

Today's decision in Janus v. State, County, and Municipal Employees was completely predictable, given that the eight-justice Court divided evenly on ideological grounds on this question; anyone who thought Justice Gorsuch would ride to the rescue of public sector unions should consider buying a certain bridge I'm selling. Yet, if the outcome was predictable, Justice Alito's reasoning for the majority is nonetheless revealing. Here I'll note the key points of contact between Janus and what I regard as the weakest argument accepted by the conservative justices in NFIB v. Sebelius (the Obamacare case).

Promo for My Travel Ban Column -- and a Thought About Justice Thomas's Potshot at Nationwide Injunctions

by Michael C. Dorf

My latest Verdict column identifies a number of silver linings in the Supreme Court's generally disheartening Travel Ban decision yesterday. In it, I discuss the majority opinion of CJ Roberts, the concurrence of Justice Kennedy, and Justice Sotomayor's dissent. I don't discuss the Thomas concurrence or the Breyer dissent. Here I want to add a brief word about the former.

After listing a number of reasons why he thinks the travel ban case was an easy win for the government, Justice Thomas pens a little essay lamenting the spread of nationwide, or as he calls them, "universal," injunctions. His basic gripe is that relief going beyond the parties to a case cannot be squared with the traditional equity powers of courts.

Tuesday, June 26, 2018

SCOTUS Crisis Pregnancy Center Case Shows Originalist Justices Are Originalist Except When They're Not

by Michael C. Dorf

Today's decision in National Institute of Family Life Advocates (NIFLA) v. Becerra was ironic in at least one respect. The Court applied strict scrutiny to California's law requiring so-called crisis pregnancy centers to post information regarding abortion options because of a broad understanding of what renders a law content-based. And yet readers of the Court's opinion could be excused for thinking that the decision itself was content-based.

The Court divided 5-4 on ideological grounds, with Justice Thomas writing the majority opinion for himself and the four conservatives. Yet some of the dissenters (the Court's liberal-leaning justices) are, in other contexts, more protective of free speech than some of the majority. It thus looked very much like the reason for the Court's robust protection for free speech here was the subject matter or content of the speech regulation: abortion. (Justice Kennedy is a possible exception to this observation, as he is very strongly in favor of free speech in just about all contexts and typically votes with the liberals in abortion cases.)

That irony aside, the case is telling in at least one other respect. Justice Thomas is often and appropriately held up as the most originalist justice, at least as evaluated by his professed commitments. And yet his opinion contains not a single word about the original meaning of the First Amendment or the Fourteenth Amendment (which makes the First applicable to the states).

Monday, June 25, 2018

At SCOTUS, It's All About Taint

by Michael C. Dorf

The Supreme Court decided two merits cases today and took one extremely puzzling action via a summary order. I'll have a tiny bit to say about an antitrust ruling, before focusing on the Texas racial gerrymandering decision and the puzzling summary order (in the florist case from Washington state). The unifying theme I'll identify is taint.

Originalism Debate Video Available

by Michael Dorf

I'll probably be back a bit later today with a post on one or more of the cases the SCOTUS is expected to hand down this morning. Meanwhile, the video from my debate on originalism with Prof. Randy Barnett (which I previewed here) is now available from the Reason magazine YouTube channel. If you prefer to listen only, you can also get it as a podcast here or through iTunes. A summary can be found at the SoHo Forum website. There is a warmup act--a "libertarian comedian"--with the actual debate starting at the 12:12 mark (of the video).

Saturday, June 23, 2018

Homey Don’t Play That

By William Hausdorff

Tuning Out the Media after the Diplotainment in Singapore

It’s really easy to become discouraged about global politics and the state of the American experiment. Earlier this month I hit a personal low point, where I felt I was truly missing something, as I watched the US news media’s ability to reduce the US-North Korean “event” to a mixture of wishful thinking and reality TV.  

One can almost forgive the vacuousness of the news coverage of President Trump’s Mighty Handshake with Kim Jong-Un, since the bar was set so ominously low:  just a few months earlier Trump and Kim were publicly comparing missile sizes. 

But other than a rhetorical cease-fire, what kind of deal could have possibly been expected with a US leader who revels in contradicting himself, who surrounds himself with a war-mongering Secretary of State and National Security Advisor that have each spoken about militarily overthrowing the North Korean government, and who are all categorically against negotiations? 

This is the same leader who has just walked away from multiple international agreements endorsed by previous US governments (on climate change, Iran, NAFTA), not to mention his own endorsement of the G-7 communiqué only days before.  With the Trump “negotiators” gleefully admitting to minimal preparation, how could any grown-up reporter or news analyst expect any meaningful agreement with the North Koreans?

Finally, even if the North Korean regime were remotely serious about sticking to an agreement this time, highly doubtful in itself, why would Kim—or indeed, any rational leader--believe that Trump would stick to this particular agreement?  Even though the “agreement” has quickly been revealed to be as vacuous as expected, no one should be fooled that a legally and politically endangered Trump won’t turn on a dime and dangerously lash out at a future “betrayal” by his new role model.

The only saving grace is that this reality TV event has been quickly eclipsed by subsequent episodes.  So indeed, a very logical response is to stop following the news.  To drop out, and asked to be woken up if anything really changes.

Friday, June 22, 2018

Justice Kennedy Finds Privacy Outside But Not Inside The Fourth Amendment

by Michael Dorf

In today's ruling in Carpenter v. United States, the Court, in an opinion by Chief Justice Roberts joined by the Court's four liberal-leaning justices, finds that collection of cell phone tower location data from a mobile phone provider constitutes a search within the meaning of the Fourth Amendment, thus presumptively requiring probable cause and (absent exigent circumstances) a warrant. Here I want to note what looks like a glaring inconsistency between Justice Kennedy's Carpenter dissent and his approach to the constitutional right to privacy in other contexts.

Thursday, June 21, 2018

Congress, the Dormant Commerce Clause, and the Wayfair Case

by Michael C. Dorf

Today's decision in South Dakota v. Wayfair, Inc. is defensible on the merits, but Justice Kennedy's majority opinion inadequately responds to the key objection by Chief Justice Roberts (for himself and Justices Breyer, Sotomayor, and Kagan). To see why will require a bit of backstory on that most delightful topic in the constitutional law corpus: the Dormant Commerce Clause (DCC).

A Glum Prediction About the Fallout From Trump's Immigration Outrages

by Neil H. Buchanan

Fifteen days ago, I left the United States to attend academic engagements in Toronto and Vienna.  In that time, there have been at least four enormous political stories, each of which erased all discussion of the previous enormous story:

(1) Donald Trump's damaging, childish stunts at the G-7 meeting in Quebec,

(2) Trump's meeting with Kim Jong-Un, which elevated North Korea's international status and downplayed Kim's brutal dictatorship,

(3) the Inspector General's report that undercut every Trump talking point about the Russia investigation (but that Trump and his people are predictably lying about),

and now (4) the disastrous human rights crisis that Trump's (in)Justice Department has created by separating children from their parents at the U.S. border.

There have, of course, also been big stories about various Supreme Court decisions and other issues.  Before the next big outrage comes along (most likely when the Supreme Court destroys public employee unions and/or blesses Trump's Muslim ban), I thought I would take a few moments to comment on how the "children ripped from their parents' arms" story is likely to play out.

Bottom line: It will not end badly for Trump, which means that it will end badly.

Wednesday, June 20, 2018

Fourth Amendment and Article III Standing

by Sherry F. Colb

My column for this week considers the recent case of Byrd v. United States. The US Supreme Court held there that if police unreasonably search a rental car, then the driver of that car who is in lawful possession of it has standing to object to the admission of evidence found during the search. In other words, you do not need to be the renter or have your name on the rental agreement list of authorized drivers in order to enjoy a reasonable expectation of privacy in the concealed portions of the car, such as the trunk. I explain in my column that this outcome is positive for two reasons: it takes Fourth Amendment privacy doctrine away from pure property concepts, and it broadens (or at least fails to narrow) standing so as to permit more people to hold police accountable for Fourth Amendment violations by excluding evidence obtained as a result.

In this post, I want to suggest that not only is Fourth Amendment standing doctrine a misguided endeavor, for reasons that I elaborate in greater detail here, but Article III standing doctrine would be better discarded as well.

Tuesday, June 19, 2018

Rainbow Flags in Vienna But Dark Clouds Everywhere

by Neil H. Buchanan

One of the mixed pleasures of being an academic is the opportunity to teach and conduct research at other universities, often in foreign countries.  Although some outsiders might view these as little more than junkets, the work is not easy by academic standards -- that is, it is even more difficult to explain U.S. tax law to foreign students than to explain it to U.S. students -- and the travel itself can become a grind.

I am, of course, fully aware that these are the quintessence of what we now think of as First-World Problems, but even at best the "working" part of these supposed working vacations does feel like something short of leisure.  In any case, such visits achieve both scholarly and institutional goals, with research being advanced by collaborating with foreign scholars in person and with our universities anxious to have us "fly the flag" elsewhere to enhance reputations.

This is all a long way of explaining that I am currently back in Vienna, Austria, for my fourth visit in the last nine years.  I have just completed teaching a course to masters-level students, and I led a research seminar to doctoral students, at Wirtschafts Universitat Wien (or WU, the University of Business and Economics in Vienna).  As always, the students were engaged and impressive.

During and after my visits in 2009 and 2013 (but not, for some reason, in 2015), I wrote a number of columns here on Dorf on Law and elsewhere on Vienna-related topics, focusing in particular on the superior public transportation system here.  (See, for example, here and here.)  With my adopted home city of Washington -- which has the second-worst automobile traffic in the country, second only to Los Angeles -- still awaiting a connection between its inadequate Metro system and Dulles International Airport (a connection that was scheduled to be completed this year but is now hoped for in 2020), and with the plan to reintroduce a system of street cars now all but abandoned, the contrast with Vienna is as stark as ever.  And transit fares are still much lower in Vienna.

In the remainder of this column, however, I want to focus on some similarities between these two capital cities and their respective countries.  The entry point for that discussion is gay rights, which was brought to mind by the 2018 version of the Vienna Pride and Rainbow Parade this past Saturday.

Monday, June 18, 2018

Is There a Silver Lining in the Wisconsin Gerrymandering Standing Decision?

by Michael C. Dorf

This is shaping up as a real nothing of a Supreme Court Term. Two weeks ago, the Court ducked the important questions in Masterpiece Cakeshop and Hughes v. United States. Today the Court ducked the question whether claims challenging partisan gerrymandering present non-justiciable political questions and if not, how to adjudicate them. In a brief per curiam in Benisek v. Lamone, the Court affirmed the district court's denial of preliminary injunctive relief in Republicans' challenge to Maryland gerrymandering, relying entirely on the technical details of the standard for a preliminary injunction. Meanwhile, in an opinion by CJ Roberts for a more or less unanimous Court, the justices declined to say anything about the justiciability or merits of Democrats' challenge to Wisconsin gerrymandering in Gill v. Whitford, resolving the case on the grounds that the particular plaintiffs had failed to prove the elements of standing at trial.

Not all non-decisions are the same. When the Supreme Court ducks a question that the lower courts have been deciding in a way that one approves, then one can be sanguine. It's not as good as a SCOTUS victory, but it's not bad either. That's the lemonade that supporters of LGBT rights (like me) can make out of lemons like the Masterpiece Cakeshop non-decision of the key issue. However, if one disapproves the status quo--either in the lower courts or pursuant to current SCOTUS precedent like Vieth v. Jubilirer--then a non-decision is almost tantamount to a bad decision.

Nonetheless, Justice Kagan, in a concurrence joined by Justices Ginsburg, Breyer, and Sotomayor, tried to make some lemonade out of the Gill v. Whitford lemon. Did they succeed?

The Death of a Chef, Vegan Views, and the Relevance of State of Mind

by Sherry F. Colb

Like other movements for change, the animal rights movement hosts its share of internal battles. Ethical vegans disagree, for example, on the Impossible Burger, a plant-based burger with the taste and texture of a hamburger made of cow flesh. Some support it because it diverts demand from the slaughterhouse, while others oppose it because one of its ingredients was tested on animals.

Vegans also part ways on whether a person who eats a plant-based diet to achieve optimal health should be considered a vegan at all. Disagreements abound over whether laws regulating the treatment of animals in agriculture and laboratories are generally a positive intervention or an empty promise that impedes actual progress toward the abolition of animal exploitation. When it comes to determining what the best steps are for ethical vegans, consensus is the exception rather than the rule.

It was therefore unsurprising to find that ethical vegans disagreed over how to react to the death of a very non-vegan chef.