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.

Friday, June 15, 2018

Using the "C" Word: the Power of Slurs

By Sherry F. Colb

Recently, Samantha Bee of Full Frontal referred to Ivanka Trump, the President's daughter, as a "feckless c---." Bee became the subject of immediate condemnation, especially from the right. Not long before that, ABC had terminated Roseann Barr's television show because she had sent out a racist tweet about Valerie Jarrett, former advisor to President Obama, suggesting that Jarrett was the offspring of Planet of the Apes and the Muslim Brotherhood. For this post, I would like to explore how critical we should be of Samantha Bee for using the C word against Ivanka Trump.

First, though, I want to briefly discuss two other issues. One is whether what Bee did was comparable to what Barr did. And the second is what it means when someone compares an African American woman to an ape.

Thursday, June 14, 2018

The Literalist Response to the Republicans' Attack on Blue States

by Neil H. Buchanan

Two days ago, I wrote in amazement about the simplemindedly literalist arguments that Donald Trump's defenders have been pushing (with straight faces) to justify his claims that he can pardon anyone, including himself.  I then offered two theories that were no crazier than those that Trump's minions have been pushing, including a move that could allow Trump to prevent his own impeachment (and then pardon himself for doing so).

I was somewhat tempted not to say anything about those cockamamie theories, because I did not want to give Trump's loyalists any ideas.  I then realized that, even if they were to read what I wrote here on Dorf on Law (a far-fetched idea, at best), they have repeatedly proved themselves capable of coming up with even more off-the-wall theories on their own than I could ever imagine.  My column was thus an exercise in "fun" in the sense that it is somehow amusing to think about how people can convince themselves to support autocratic power grabs.

My original idea when I began writing that column was not to focus entirely on the self-pardon arguments.  I also intended to draw an unexpected connection between those arguments and the literalist arguments that have recently been offered in response to the Republicans' attempts to punish blue states by limiting the state-and-local tax (SALT) deduction.  I wrote the following paragraph (where "it" is the Trump self-pardoning theory):
"It is so demonstrably wrong that it is not even worth a full column to debunk the argument, so I am going to use this space to draw some parallels between the literalism of the Trump-can-do-anything-he-wants-with-the-pardon-power claim and the form-over-substance claims that are now being made in the context of some blue states' attempts to sidestep the limit on state-and-local tax deductions.  Trust me, the analogy is not as odd as it might sound -- and the tax stuff is not boring (even though it is tax stuff)."
I might be about to prove that I was wrong about the tax stuff not being boring, but I already proved myself wrong in thinking that there was not a full column's worth of material in the self-pardoning discussion (which is why I deleted the paragraph above).  My bad.  Here, I will take up the literalism argument in the tax context, showing that no matter how much contempt I might have for the self-pardoning argument, there are times when it is not as easy to dismiss literalism as it might seem.

Wednesday, June 13, 2018

Of Legislatures, Courts, and the Contracts Clause

By Michael Dorf

In my latest Verdict column, I recap my (side of the) debate on originalism with Prof. Randy Barnett Monday night at the Soho Forum. (No video available yet; I'll update when there is.) Regular readers of this blog and my other work will not be especially surprised by the core of my argument.

So-called public-meaning originalism unjustifiably claims the supposed virtue of constraint that intentions-and-expectations originalism claimed (justifiably or not), while supposedly avoiding the pitfalls of intentions-and-expectations originalism, but in fact public-meaning originalism is functionally equivalent to living Constitutionalism; meanwhile, the respectability that scholars like Prof. Barnett bring to the term "originalism" is systematically misused and abused by judges and justices who talk the public-meaning-originalism talk but walk the intentions-and-expectations-originalism walk.

Thus, I conclude with a quotation from Justice Scalia's dissent in Obergefell v. Hodges. Despite having championed public-meaning originalism since the 1980s, the pith of Justice Scalia's argument was the bad old intentions-and-expectations originalism. He wrote: "When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases."

It certainly does not, but this sort of move is all too familiar in the work of the justices who nominally profess public-meaning originalism. I illustrate the point in my column by discussing Justice Gorsuch's dissent in Monday's decision in Sveen v. Melin. Seemingly unaware that he is engaged in methodological inconsistency, Justice Gorsuch invokes original public meaning just paragraphs after employing intentions-and-expectations originalism.

In the balance of this essay, I want to pivot from my methodological critique to the merits of Justice Gorsuch's dissent. Although I am not ultimately persuaded by his dissent, I will suggest that it points to tensions in various lines of constitutional doctrine and perhaps to a flaw in the Constitution itself.

Tuesday, June 12, 2018

If Trump Can Pardon Himself, Can He Also Prevent Himself From Being Impeached?

by Neil H. Buchanan

One of the most important recent degradations of our constitutional order has arrived in the form of Donald Trump's claim that he can pardon himself.  That threat is even more worrisome in light of the rapid acquiescence by Trump's enablers in agreeing with his outlandish claim.

This acquiescence is not, moreover, limited to the spineless Republicans in Congress.  In The Washington Post, for example, a Stanford Law School professor (who once had a reputation as a principled conservative) ran through the suddenly-standard Trumpist excuses to say that Trump is "not wrong" about self-pardons.

This is nonsense.  People who claim that the legal text is clear and that Trump can get away with anything that is not explicitly ruled out by the Constitution are wrong.  They opportunistically make exceptions when necessary, and then they drop the exceptions when convenient.  Literalism is, in the end, a useful starting point that is all too easily turned into a mindless tool by mindless tools.

Monday, June 11, 2018

A Brief and Obvious, But Nonetheless Necessary, Observation About Today's SCOTUS decision in the Ohio Voter Registration Case

by Michael Dorf

Today's ruling in Husted v. A. Philip Randolph Institute divides the Court 5-4, with the five Republican-appointed justices voting to sustain, and the four Democratic-appointed justices voting to invalidate Ohio's procedure for--depending on your priors--updating or purging the voter rolls. There is, to be sure, a genuinely difficult question of statutory interpretation that divides the justices, but one would have to be incredibly naive to think that that is where the real action lies.

Debating Constitutional Interpretation While the Republic Unravels

by Michael Dorf

[**Updated] Tonight I'll be debating Georgetown Law Professor Randy Barnett at the Soho Forum. I'll be arguing against the following resolution: "The U..S. Constitution should be interpreted and applied according to ​the original meaning communicated to the public by the words of the text." The event is sold out, but I believe it will be streaming live via the Reason Magazine FB page. In any event, I'll post recorded video back here as soon as it's available. (Video is here.  Podcast is here.)

Meanwhile I'm going to depart from my custom of previewing my remarks when I'm on panels in order to briefly say something "meta" about tonight's debate. For the gist of my substantive position, readers can consult any number of my prior blog posts (such as this one) and academic articles (such as this one) discussing originalism.

Saturday, June 09, 2018

Respectfully, You Lose: Masterpiece Cakeshop Gets Cited in State Court

By David Cruz (cross-posted with some updates from Cruz Lines)

“Oh baby refrain from breaking my heart”

In what appears to be the first judicial opinion to cite the Supreme Court’s ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, an Arizona appeals court has rejected a claim by a hand-painted and hand-lettered stationery business and its Christian owners for a religious exemption from Phoenix’s law forbidding sexual orientation discrimination.  Decided three days after Masterpiece Cakeshop, Brush & Nib Studio v City of Phoenix rejected the Arizona state constitutional and statutory free speech and religion claims brought by the same Christian right advocacy organization – the Alliance Defending Freedom (“ADF”) – that represented the Masterpiece Cakeshop.  This time, however, there was not even colorable hostility toward the plaintiff owners’ religion, and ADF lost.

Friday, June 08, 2018

The Genovese Effect and Trump's Threat to the Future

by Neil H. Buchanan

What did Barack Obama do during the 2016 election?  What I recall most clearly is that he tried (rather late in the game) to boost turnout among African-American voters for Hillary Clinton, either failing entirely or at least falling short.  What did he not do?  Interesting question.

Quoting from an extremely long piece in The New York Times about James Comey's impact on the election, Paul Waldman notes that, "at one point, then-FBI Director James B. Comey suggested that he could write an op-ed explaining what Russia was doing, but Obama 'replied that going public would play right into Russia’s hands by sowing doubts about the election’s legitimacy.'"

That decision can be defended on a number of grounds, not only in the way that Obama justified inaction but also by surmising that Republicans would have immediately spun any effort on Obama's part as illegitimate meddling by the sitting president.  We do know that Senate Majority Leader Mitch McConnell refused to join a united front against the Russians, deciding instead to make everything partisan, which hemmed in Obama.

Counterfactuals are fun yet frustrating.  I have argued, for example, against the claim that Bernie Sanders would have beaten Trump, pointing out that the right-wing outrage machine would have had a field day focusing the entire election on the word "socialism."  But who knows if that would have been as decisive as I think it would have been?

Similarly, I am one of the people who rejects the counterfactual that Al Gore would have won in 2000 if only Ralph Nader had dropped out, because I strongly believe that Nader's decision would have been spun -- with the enthusiastic participation of a press corps that clearly could not stand Gore -- as a corrupt deal to throw the election to the Democrat.  This, indeed, is in the same vein as Obama's understandable concern about being seen as helping Clinton in 2016.

Unlike in 2000, however, there is a common theme to all of the actions taken and not taken in 2016, which is that that everyone thought that the stakes were low because Clinton was clearly going to win.  And that has recently gotten me to thinking about the tragic case of Kitty Genovese.

Thursday, June 07, 2018

The Right-Wing Outrage Industry and the Paranoid Echo Chamber

by Neil H. Buchanan

Part of Donald Trump's strategy for survival, as even his own strategists now admit, is to ramp up the anger among his base by trying to make them think that everyone who is against Trump is dishonest and corrupt.  That strategy in turn is based in large part on portraying the non-Trump world -- not just the media and academia but anyone who disagrees with Trump -- as part of an alien force that hates Trump's supporters.

This move is actually rather easy to pull off for Trump, given how aggressively this sense of grievance has been pushed on the right for many years.  Indeed, when I wrote a Verdict column back in May of 2015 discussing "The Return of the Paranoid Style in American Politics," I did not mention Trump at all.  The most obvious reason for that omission was that Trump was not yet seen as a serious threat, but the point is that this right-wing sense of paranoid isolation had long since become obvious even when the "normal" Republican Party was still intact.

That Verdict column drew from Richard Hofstadter's classic essay, "The Paranoid Style in American Politics," and I was particular taken by his description of the paranoiacs' imagined enemy as "a perfect model of malice, a kind of amoral superman—sinister, ubiquitous, powerful, cruel, sensual, luxury-loving."  This perfectly captures the imaginings on today's American right about all-powerful campus thought police, latte-sipping Beltway insiders, anti-religious globalists, and all the rest.

By now, this deliberate vilification of everything non-Trump has become depressingly familiar.  As I put it in a recent column here on Dorf on Law, "[t]he business model of those hyper-conservative media outlets is to make people angry, and business is good."  What I did not fully appreciate is just how completely the Fox-led media has been turning Democrats and others into hideous monsters in the eyes of conservatives.  Allow me to explain, using one prominent example and then a lesser known one.

Wednesday, June 06, 2018

LeBron James, Donald Trump and What to do After Screwing Up

By Eric Segall

From time to time, Mike allows me the privilege of  using this space to rant about non-constitutional and non-legal matters. This is one of those times, except for a sentence or two at the end.

Explaining Empathy for an Embryo

by Sherry F. Colb

In my column for this week, I discuss the Irish vote on abortion and consider how all of us might  empathize better with those on the other side of this issue as well as the related issue of animal rights. In this post, I want to consider an empathy question regarding abortion: why do (some) people empathize with embryos and fetuses? Why, in other words, does anyone want the law to protect the rights of unborn humans?

Tuesday, June 05, 2018

Ducking Day at the SCOTUS

by Michael Dorf

Yesterday's SCOTUS decision in Masterpiece Cakeshop case did not decide the main issue that made it worth following: whether a baker has a constitutional right of free speech to refuse to make a wedding-style cake for a same-sex couple in the teeth of a state public accommodations law. Instead, as I discussed here, the Court resolved the case based on a rather far-fetched reading of the record in the Colorado Civil Rights Commission, attributing anti-religious bias to one or two commissioners based on statements that, all things considered, are best read not to express such bias.

I have my doubts about whether all seven justices in the Masterpiece majority (or even five of them) actually thought this was the best way to resolve the case. It strikes me as more likely that this was a compromise ruling on relatively narrow case-specific grounds, reflecting an inability of the Court to produce a definitive ruling just yet.

Or maybe not. The Supreme Court has been holding the cert petition in Arlene's Flowers v. Washington since November. It presents essentially the same issue but with a florist instead of a baker. Had the Court resolved Masterpiece in favor of the cakeshop on the free speech claim, the standard procedure now would be to grant the Arlene's Flowers cert petition, vacate the Washington State Supreme Court ruling, and remand for reconsideration in light of Masterpiece. Such a procedure--grant, vacate, and remand--is known in the trade as a GVR. But because the Court did not address the key issue in Masterpiece, a GVR now makes no sense. There is, so far as I'm aware, no issue of possible subjective anti-religious bias in Arlene's Flowers. Thus, if the Court resolved Masterpiece the way it did because a majority of the Court really thought that the subjective bias issue was the best way to deal with the case on the merits, it should now grant cert in Arlene's Flowers to address the bigger question it left unresolved in Masterpiece. However, if the Court now simply denies cert in Arlene's Flowers or, worse, nonsensically GVRs, then we will have strong evidence that the justices are punting because they don't want to decide the conflict between speech and civil rights.

Monday, June 04, 2018

Masterpiece Cakeshop Ruling Should (But Probably Won't) Doom the Travel Ban

by Michael Dorf

Today's SCOTUS decision in Masterpiece Cakeshop v. Colorado Civil Rights Comm'n is erroneously but predictably being described in the press as a victory for religious merchants who want to deny service to gay couples. For example, this instant NY Times story is correctly but misleadingly titled "Supreme Court Sides With Baker Who Turned Away Gay Couple." Worse, the original version of the story (which has now been updated) described the free speech argument made by baker Jack Phillips in a way that gave the impression that the SCOTUS had accepted the free speech claim.

It did not. Justice Kennedy's opinion for the Court specifically acknowledges the difficulty presented by the free speech claim. Absent a showing that Phillips was asked to create an articulate pro-same-sex-marriage message on the cake, Kennedy notes, a free-speech ruling in favor of Masterpiece/Phillips would mean that "a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations." The Court DID NOT rule in favor of the free speech claim. Justice Kennedy's opinion doesn't decide the free speech issue, but to the extent that it offers any hints, the opinion suggests that any free speech exception to public accommodations laws will be narrowly confined.

So why did Phillips/Masterpiece win? Because the Court found that the Colorado Civil Rights Commission's consideration of the case was infected with anti-religious bias. As I'll explain, that's a dubious decision, justifiable, if at all, as an act of prudence in ducking the harder questions in the case. As I'll also explain, if the ruling is taken seriously, it should spell doom for the Trump administration in the pending Travel Ban litigation.

Friday, June 01, 2018

Comedians, Professors, and Changing Audience Expectations

by Neil H. Buchanan

Even before Roseanne Barr's spectacular flame-out this week, I had been planning to write a piece about the unfairness purportedly suffered by entertainers who must navigate the ever-changing terrain of audience expectations.  With Barr's bizarre career suicide and after-death whining about her supposedly unfair treatment at the hands of Hollywood liberals, the timing could not be better.

A bit more than a month ago, I wrote a series of columns (one on Verdict and two here on Dorf on Law) in which I discussed the controversies that were then brewing about the successful reboot of Barr's 1990's TV sitcom as well as the offensive response by the creators of "The Simpsons" to complaints about their offensive "brownface" stereotyping of South Asians through the character Apu.

One of my themes in those columns was that entertainers should shut up about their audiences' supposed touchiness and try to write better jokes.  In one column, I noted that the actor who voices Apu actually stars in a sitcom in which a South Asian actor not only is treated as a fully human being but in which the writers brilliantly and hilariously mock casual white racism.  The humor in "Brockmire" is so raw (especially about sex) that the show will never go mainstream, but the show proves that it is possible to be funny without being racist -- and even to be funny about racism.

Even so, I want to use the rest of my column today to think about a passing comment that I made in my April Verdict column.  Within my discussion about changing audience expectations -- with, say, jokes about buck-toothed "orientals" going from mainstream to unthinkable over time -- I confidently wrote this sentence: "Walking this line is surely awkward and frustrating for artists, but that is the profession they have chosen."

Easy for me to say, right?  Should I have been more empathetic?  Maybe, but ultimately, I am willing to hold myself to the same standard.