Justice O'Connor and our Future Selves

by Michael C. Dorf

In my latest Verdict column, I note that with Justice O'Connor's announcement last week that she is withdrawing from public life, we have reached another milestone in the passing of the Reagan Court. The announcement underscores what we already knew last summer when Justice Kennedy announced his retirement. After nearly three decades in which Reagan's appointees--O'Connor, Kennedy, and Scalia--dominated the Court, a new era has begun. I argue in the column that, ironically, the real Reagan Court has now finally been born.

Here I want to focus on a very different sort of issue raised by Justice O'Connor's announcement. As readers may recall, Justice O'Connor announced retirement (pending confirmation of a successor) in 2005, at a time when she could have served longer. She did so in order to be able to care for her husband, who was then himself suffering from dementia. Unfortunately, John O'Connor's condition quickly worsened to the point that he needed 'round-the-clock care in an institutional setting. With his memory compromised, he developed a relationship with another resident of the facility. Justice O'Connor, in a display of incredible grace and generosity, supported him in that relationship, even as he lost his memory of her. (The parallel with the film Away From Her was widely remarked upon a decade ago.)

Having lost a dear friend to early-onset Alzheimer's and having seen the impact of dementia on others, Justice O'Connor's situation leads me to wonder about a set of questions that have legal, moral, and ultimately pragmatic dimensions: To what extent, if any, should fully competent adults be able to limit the freedom of their future selves should they succumb to dementia?

Can Trump Eliminate Birthright Citizenship? Can Congress?

by Michael C. Dorf

This morning an NPR reporter referred to President Trump's suggestion that he would "end birthright citizenship" by executive order as "vaporware"--a rumored product that never actually materializes, intended only to thrill his fans, much like Trump's promised impending middle class tax cut. I hope that proves correct, but these are dark times in which one should take seriously even the most outlandish suggestions. Indeed, South Carolina Senator Lindsey Graham has already raised Trump's opening bid, saying that he plans to introduce legislation accomplishing by statute what Trump proposes to accomplish by executive order. Is either path open?

The short answer is no. The long answer is also no, but in a way that may prove interesting to explore.

Between Healthcare and Fascism: Chaos

by Michael C. Dorf  (** New as of 10/31/2018: Updated with a Postscript)

A recent column by David Brooks takes Democratic candidates to task for focusing so much of their midterm election messaging on health care. It's easy to dismiss this column as just so much concern-trolling by Brooks, and in an important sense it is that. Brooks--self-appointed defender of the Republic from the evils of identity politics--thinks that the Democratic strategy will fail because Democrats can only appeal to particular identity groups one at a time and are thus missing out on an opportunity to appeal to disaffected Republicans.

That's not just wrong but actually backwards. To state the obvious, everyone--regardless of race, sex, religion, gender identity, or any other identity--needs health care. The emphasis on health care reflects Democratic efforts to broaden the party's reach by appealing to voters who may have identitarian reasons of their own (such as whiteness or Evangelical Christianity) for often favoring Republicans. It's a gamble that a meaningful fraction of voters who tolerate or even somewhat like Trump because of status anxiety care less about the psychic wage that Trump's brand of white nationalism pays them than they care about being able to see a doctor for that concerning lump. Brooks manages to miss this fact entirely.

Yet if the main point of the column as Brooks conceives it is wrong, en route to his misguided conclusion he makes an astute observation. He writes: "The Trumpian challenge is primarily a moral and cultural challenge. But the Democrats are mostly comfortable talking about how to use federal spending to extend benefits."

I think Brooks is right about both halves of that statement. The challenge is how to talk about the first half--the especially Trumpian awfulness of Trump--without sounding alarmist and thus alienating the people who are reachable on conventional Democratic grounds of using government to address social needs. Admittedly, the risk of sounding alarmist is smaller today than it was just a week ago. The Trump-inspired pipe bombs of Cesar Sayoc and the open Nazism of the murderous Robert Bowers (who apparently dislikes Trump for not going nearly far enough) have made clear that warnings of political violence are clear-eyed.

Still, as we have seen all too often in response to prior mass shootings--including other mass shootings that were also hate crimes--the relentless news cycle quickly displaces reform proposals and calls for "civility." Accordingly, although I regard the Trumpian threat to American democracy as genuinely existential, I recognize the challenge of making that point without seeming alarmist to a substantial fraction of my fellow citizens, including some who are not fully in the tank for Trump and Trumpism.

Justice Thomas in his Own Words

By Eric Segall

Justice Clarence Thomas is our longest serving Supreme Court Justice. He first came into the public eye in October 1991, when Anita Hill accused him of sexual harassment. He dogmatically denied the claims calling his confirmation hearing a “hi-tech lynching.” He has been embroiled in controversy ever since.

Many conservative Court scholars believe it is Justice Thomas, not the deceased Justice Scalia, who has been the most important driving force behind originalist decision-making. Thomas has written solo opinions challenging well-established Supreme Court doctrine in the areas of gun control, the appropriate balance between church and state, and Congress’ powers to regulate the economy, among many others important swaths of constitutional law. He has also recently been called by one liberal commentator the “most important legal thinker in America.”

Dozens of Thomas’ law clerks have become federal judges, and his originalist statements about constitutional interpretation have been largely adopted by the Federalist Society, a conservative non-profit that is now assisting President Trump in his selection of Supreme Court Justices and lower court judges.

No one can deny Justice Thomas’ influence on our law and politics since he became a Justice more than 25 years ago. Yet, there are numerous aspects of his career that are troubling and mystifying. Here is Justice Thomas in his own words and votes.

No, the Deficit is Not Suddenly an Important Issue; but Yes, the Republicans are Hypocrites (at Best)

by Neil H. Buchanan

The federal budget deficit is one of those handy political issues that never stays out of sight for very long, because it is too tempting for demagogues to exploit it.  It has the simultaneous advantage of seeming to be self-evidently important yet too difficult to truly understand, making it easier simply to say that "borrowing is bad, and deficits are hurting our children and grandchildren."  If ever there were a political Q.E.D., there you have it.

To make matters worse, this is the go-to subject that ignorant pundits use to prove that they are not merely political hacks.  "Hey, I know that we argue about political issues, but every serious person knows that at some point we must all come together to deal with those horrible deficits.  Debt will destroy us all!"  There are so many examples of that kind of statement by people who know next to nothing (or literally nothing) about economics -- but who have positive reputations among liberals, such as Fareed Zakaria -- that I stopped collecting links to such nonsense years ago.  Such talk is usually little more than background noise.

Because of all of that, and even though I wrote my dissertation on fiscal deficits, I try to avoid talking about the subject as much as possible.  There are still times when it is necessary to write about it, of course, such as then-candidate Trump's appearance on Stephen Colbert's show three years ago.  There, apparently referring to gross federal debt, Trump said: "You know, when you get up to the 24 trillion . . . 23 . . . 24, that’s like a magic number. ... They say it’s the number at which we become a large-scale version of Greece, and that’s not good."

Other than Trump's typical "they say" deflection, the standard-issue response from Very Serious People is to point out that the gross debt has gone from $18.2 trillion to $21.7 trillion in the three years since Trump displayed his ignorance about that issue. See?  It's out of control!  Again, that is based on nothing more than the vague certitude that debt is bad, but who cares when a pundit is having fun sounding sober-minded?  (And please do not get me started down the road of explaining again why gross debt is a meaningless number, even if one were to assume that debt is important.)

Occasionally, Democrats try to call out Trump and the Republicans for hypocrisy on debt/deficit issues, but because the Republicans are always willing to be hypocrites and voters are worried about other things, that has gone nowhere.  Recently, however, Senate Majority Leader Mitch McConnell said something revealing about Republicans' political uses of the deficit.  Even more surprisingly, there was some interesting commentary in response.

Rape and Abortion: Connected?

by Sherry F. Colb

In my Verdict column this week, I discuss a controversial website at the University of Washington, where victims of sexual misconduct can anonymously post the names of their assailants or harassers. Addressing the issue of how we might think about the existence of such a list, I drew an analogy between the list and coat-hanger abortions, as both are symptoms of larger phenomena. I went on to suggest that the solution to undesirable processes can sometimes be to offer alternatives to those processes--a willingness to criminally prosecute acquaintance rape as a matter of course, for example, and an available abortion provider who can terminate unwanted pregnancies in a safe and medically competent fashion.

In this post, I want to explore some further links between rape and abortion, because I think there are several. The issue of abortion appears to be more controversial than the issue of rape, so why would anyone want to talk about the two together in an effort to shed light on either one? In the abstract, I would agree that abortion is the more controversial of the two issues. But these questions are anything but abstractions for women who have encountered either sexual assault or an unwanted pregnancy or both. And in practical terms, both are the subject of significant controversy.

How Bad Will Things Become? Part Six: Will the Supreme Court's Reactionaries Make a Mockery of Precedent?

by Neil H. Buchanan

As the news cycle plods along on its inexorable march of awfulness, those of us who toil in the fields of legal analysis cannot help but linger on the implications of the recent change in Supreme Court personnel.  The replacement of only-occasionally-not-arch-conservative Anthony Kennedy with yet another full-on movement conservative continues to pose questions about how the judiciary will operate going forward.

These questions will, of course, only become more pressing as Senate Republicans put more and more Thomas/Gorsuch/Kavanaugh clones on lower courts, which will continue at least through the upcoming lame duck session and for at least two additional years if (as expected) the Republican majority holds or is expanded in next month's midterm elections.

Will this wave of conservative justices and judges change the way cases are handled by the courts -- not in the sense of procedural changes (although those might well be in the offing as well), but in the way that courts present their decisions in the form of supposedly well reasoned and dispassionately considered jurisprudential analyses?  If not, what will judicial opinions look like in the future?  Will there even be written decisions any more, or will it be simply, "The side that we like wins"?

How Blatant Must a Prosecutor's Racism Be for the SCOTUS to Notice?

by Michael C. Dorf

At its conference on Friday, the Supreme Court will decide whether to grant review in Flowers v. Mississippi (SCOTUS page here). Flowers was tried six times for the same offense. Each of the first five trials resulted in  a reversal of a conviction, a mistrial, or a hung jury. On try number six, a jury that was selected through racial discrimination found Flowers guilty and sentenced him to death. There are at least four reasons for the US Supreme Court to take the case or summarily reverse the decision of the Mississippi Supreme Court upholding the conviction and sentence.

Book Review: Corporations are People Too

By Eric Segall

I just finished reading a great new book by Professor Kent Greenfield of Boston College Law School called "Corporations are People Too (And They Should Act Like It)." For anyone interested in what constitutional rights corporations should possess, or in corporate rights and responsibilities generally, this book is a must read. Greenfield is one of the very few law professors in America with a serious background in both constitutional and corporate law, and his double expertise is reflected in almost every chapter of the book.

The essential thesis of the book is that the law does and should treat corporations as people, and the strong anti-Citizens United  movement arguing that corporations are not people is deeply misguided. At the beginning of the book (pp. 2-3), Greenfield points out that, first, for a very long time corporations have been deemed people under a myriad of legal regimes because corporations can sue, be sued, and "own and sell stuff" all "in their own names and legal capacity." Second, he points out that, of course, corporations "are made up of people. Corporations are collective bodies in which humans come together ...to create goods and services to sell for a profit." Third, as an historical matter, corporations have been allowed by the courts to assert constitutional rights since the beginning of the 19th century.

After reading these opening pages, I was convinced that the twin ideas that corporations are not people, and/or that corporations shouldn't have constitutional rights, were absurd. As Greenfield points out, of course Exxon has a Fourth Amendment right to be secure in its property just as obviously as the New York Times has the first amendment right to publish any editorial it wants without government interference.

"Horseface," "Tiny," and "Rhetorical Hyperbole" in the Stormy Daniels Case

by Michael C. Dorf

Earlier this week, Federal District Court Judge S. James Otero issued an order dismissing the defamation lawsuit by Stephanie Clifford, aka Stormy Daniels, against Donald Trump. After Clifford had said that in 2011 she was threatened by a man who worked for Trump or then-Trump-attorney Michael Cohen, Trump tweeted that the threatener was "nonexistent" and that Clifford's story was "a total con job." Clifford sued Trump for defamation on the ground that calling her a liar was, well, defamatory. Judge Otero dismissed the suit. He did not say that Trump was right. Instead, the judge said that Trump's statements were not to be evaluated under ordinary standards of truth, because they were mere "rhetorical hyperbole" that a reasonable person would not expect to be true as such. I think that's probably wrong.

For the Good of the World, We Should Drop the Pulitzers and Faux-Nobels

by Neil H. Buchanan

Last week, the Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel was awarded to Professors William Nordhaus and Paul Romer.  Nordhaus won for his work on the economics of climate change, Romer for studying how economic growth responds to the creation of knowledge.

I have nothing to say here about either economist or his work, although I might write something about one or both of them in the near future.  I should add that I am not ignoring them out of disrespect.  They seem like fine choices, within the confines of that prize.  But it is those confines that I want to address here, in large part to compare them to the limitations of another prestigious award, the Pulitzer Prize.

Longtime readers of this blog might recall that I am a stickler about calling the economics prize what it is (see the first line above) -- and not calling it what it is not: "The Nobel Prize in Economics."  My column on this subject from 2009 provides the facts on that score.  The bottom line is that it simply is inaccurate to call it an Economics Nobel, and the angry insistence by many economists that the difference is a mere technicality simply demonstrates how desperately they are trying to gain undeserved prestige by renaming their prize.

Although I often take economists to task for various reasons, a much more frequent target of my critical commentary has been the American press, especially what can still accurately be called the print media (although I have not read a printed physical newspaper in years).  Indeed, I have written so many negative things about the prestigious papers' news coverage that I had to take a step back this past summer and ask, "Is It Time to Ease Off On the Media Criticism?"  With Donald Trump calling a free press the enemy of the American people, it is important to remember that constructive criticism -- especially highly negative constructive criticism -- can feed into a dangerous narrative.

My goal here, therefore, is not to bash the press but to continue to point out that mainstream media types respond to perverse incentives.  And that can have very unfortunate effects in the real world -- effects that endanger the press itself and ultimately constitutional democracy.

Originalism in the Classroom?

By Eric Segall

Over the last two days, numerous folks on social media, triggered by a blog post by John McGinnis, have lamented, in McGinnis' words that "it would be malpractice for law professors "not to describe originalism as an important theory of constitutional interpretation." He went on to say the following:

There is reason to believe that many professors are failing to give their students a fair minded introduction to originalism. The first is anecdotal. I have given talks at law schools across the country. I hear from students that originalism is generally given short shrift and Scalia opinions are often simply ridiculed. The second is sheer ignorance. Most constitutional law professors are not constitutional theorists and do not study originalism as part of their scholarly enterprise. It is all too easy then for political bias to lead them to denigrate or downplay a theory that has been associated with conservatism, when they are themselves, as studies show, likely to be left-liberals.

As originalists on Twitter like Randy Barnett agreed with and repeated this refrain, I raised an issue that I discuss at length in my (finally available) book Originalism as Faith. What would it mean to teach originalism in  a world where that term no longer has any identifiable content other than as a political signal or an article of faith?

Pre-Existing Conditions, Severability, and the "When" Question in Statutory Construction

by Michael C. Dorf

In my latest Verdict column, I take aim at one of the many lies in the op-ed that appeared last week in USA Today under Donald Trump's name--the claim that the president has kept his promise to protect health insurance for people with pre-existing conditions. I explain that the claim does not pass the laugh test. Among the reasons I give is the administration's support for a pending lawsuit by Texas and nineteen other states that, if successful, would invalidate the Affordable Care Act's prohibition of screening out or charging extra for persons with pre-existing conditions.

The column describes the lawsuit's key argument in greater detail, but the very short version goes like this: (1) the ACA's individual mandate was upheld by the SCOTUS as a tax; (2) Congress eliminated the tax late last year as part of its tax cut law; (3) therefore the mandate no longer has a constitutional basis; (4) the mandate was designed by the Congress that enacted the ACA to work hand-in-glove with the protections for people with pre-existing conditions; (5) thus, a court cannot sever the mandate from those protections; and (6) accordingly, the protections are invalid.

To decide a severability question, a court must determine whether Congress would have wanted the portions of the statute that do not by themselves violate the Constitution (here the pre-existing conditions protection) to remain operative without the  invalid portion (here the mandate without the tax). I say in the column that the non-severability claim made by Texas is extremely weak, because we don't need to guess what Congress would prefer: Congress, just last year, told us what it prefers. It left the rest of the ACA intact when it reduced the tax to $0.

Nonetheless, at a hearing last month, Federal District Judge Reed O'Connor seemed sympathetic to the non-severability argument. My column notes that while that is alarming, it should not be surprising. Over the last eight years, Republican-appointed federal judges have been remarkably receptive to what we might politely call "creative" arguments that aim to destroy the ACA. But there is--or at least should be--a difference this time. While in prior challenges to the ACA, conservative legal scholars crafted some of the arguments that conservative judges accepted, to their credit, conservative legal scholars have joined with more liberal ones in arguing that Texas's non-severability argument is unpersuasive.

I am thus cautiously optimistic that the courts will ultimately reject the argument for non-severability. The issue deserves some attention, however, because there is no guarantee that the case will come out right, and it raises a question of wider importance.

Insecure Masculinity Is the Glue That Binds Conservative Elites and Their Base

by Neil H. Buchanan

The end of the Kavanaugh confirmation travesty, which now seems a million years ago, overlapped with the blockbuster story in The New York Times about the Trump family's decades of tax dodging and other scams.  Or it would have been a blockbuster story in anything resembling a normal universe.

The Times showed, through meticulous research, that young Donald Trump's father had not merely given his son the mythical "small loan of a million dollars" (which Trump insists he repaid with interest) that put Trump on the path to unimaginable success.  By evading the estate tax and other taxes in a variety of ways (and I do mean "evading," which means illegal underpayment of taxes), not to mention by making money from government contracts and exploiting low-income renters, Fred Trump ended up transferring a total of $413 million (in inflation-adjusted dollars) to his son.

The Kavanaugh and Trump stories are actually connected by a common bond of clueless, angry entitlement.  Even more importantly, the sense that each man has of his own greatness and their shrieking horror at any suggestion of not being a "self-made man" are the keys to understanding both men's connection with Trump's non-elite white male cheering section.  Male insecurity runs the world.

The Dangers of Mutual Radicalization

by Sidney Tarrow

Soon after the election of Donald Trump, a wave of protest bubbled up against the new president and his policies. Beginning with the “Women’s March,” followed by protests on behalf of gun control and against the threat of climate change, and led by new groups like Indivisible and old ones like the ACLU, the movement reached into the legal profession when Trump, soon after entering the White House, abruptly  announced a painful and chaotic ban on refugees and others from several majority-Muslim countries (as described by Michael Dorf and Michael Chu here). When the #MeToo and Never Again movements emerged, it began to seem as if American civil society was rising up in a body against the excesses and outrages of the new administration.

Academics and activists soon collected these varied movements under the rubric of “The Resistance,” but as David Meyer and I argued in our recent book, The Resistance: The Dawn of the Anti-Trump Opposition Movement, that label may say too much and too little. It may say too much because it assumes that the varied protest movements are a coherent whole, and it may say too little because it fails to examine the challenges that the Resistance poses to its supporters. 

Three of these challenges are the most important: first, the proliferation of activist sites and new groups has led to a failure to identify an overarching policy goal – apart from the proximate one of opposing Trump; second, there is a gap  between those who want to defend our institutions against the president and his enablers and those who want to tear down the institutions that facilitated his rise; and, third, there is the danger of mutual radicalization. As was revealed in the conflict that erupted over the Kavanaugh nomination, the third is the most pressing, and could easily weaken The Resistance.

I Feel Pretty: What If Brett Kavanaugh's Female Law Clerks Are All Beautiful?

by Sherry F.  Colb

Mostly lost amidst the credible testimony and ignored accusations of sexual assault against Brett Kavanaugh was a story about his law clerk hiring practices.  The story suggested that (a) all of then-Judge Kavanaugh's female law clerks have looked like models; (b) this is no accident; (c) Professor Amy Chua at Yale Law School groomed some of the female students for these clerkships by asking applicants to send her selfies in the outfits they planned to wear to the interview; and (d) Professor Jed Rubenfeld of Yale Law School, husband of Professor Chua, advised female students that Judge Kavanaugh liked his clerks to have a "certain look." Chua vociferously denied the story, which in turn led a former student to say that Chua was "lying" in her denial.

Needless to say, this story raises some questions. And if Kavanaugh has done what he is accused of doing, it puts the fact that he has a very strong record of hiring female law clerks in a less-than-feminist light.

Projection, Preemptive Accusation, and Strategic Hypocrisy

by Neil H. Buchanan

There has been a surge of commentary recently about the Republicans' embrace of conspiracy-laden accusations against the Democrats, including the bizarre claim that the people who confronted Republican senators prior to Brett Kavanaugh's confirmation vote were yet another group of "crisis actors" who had been paid by (who else?) George Soros.  As familiar as all of this has become, fantasies like this still have the capacity to surprise because of their complete disconnect from facts and logic.

In my most recent Dorf on Law column, I discussed the paranoid underpinnings of these conspiracy theories, once again drawing from Richard Hofstadter's timeless 1964 essay, "The Paranoid Style in American Politics."  To the extent that Republicans actually believe their own craziness, they are under the spell of extreme paranoid delusions, especially now that they are railing against their "powerful" opponents whom the Republicans in Congress have already made powerless.  It is one thing to accuse someone of abusing her power; but it is another thing entirely to imbue her with imaginary powers that no one can see but that supposedly put all Republicans at risk.

As important as that discussion is, however, it is only one of several partially overlapping explanations of Republicans' current mindset and political strategy.  Here, I am interested in the various ways in which one can explain Republicans' repeated attacks on Democrats for doing things that Republicans themselves are in fact doing (or will soon do). Most importantly, some of the explanations imply a quite conscious decision by Republican strategists to lay the groundwork for future abuses of power.

Believing Men Who Lie About Rape

by Sherry F. Colb

Dr. Christine Blasey Ford needed a great deal of courage to come forward and accuse Judge Brett Kavanaugh of attempted rape. Such accusations predictably yield resistance, with allies of the accused saying that the accuser is either lying or mistaken (or crazy). Yet Ford brought her accusation nonetheless, saying that she felt it was her civic duty, and Donald Trump described her testimony as credible; at least that is part of what he initially said. He also observed that he himself has endured false sexual assault allegations, implying that he and Kavanaugh were like peas in a pod. 

Trump's expressly drawing a parallel between his own and Kavanaugh's experience was interesting. Trump, as we know, effectively confessed to sexually assaulting women in an Access Hollywood video that aired only weeks before the presidential election. The women who subsequently came forward were simply confirming that Trump had committed the criminal acts that he had described in the video.

Another sexual assault allegation against him was that of his ex-wife, Ivana Trump. Ivana reportedly gave a deposition during the Trumps' divorce proceedings in which she provided a graphic description of Trump brutally raping her. He was apparently enraged after having undergone painful scalp reduction surgery to cover a bald spot. He allegedly tore clumps of her hair off her head, tore her clothes off, held her down, and jammed his penis into her.  In her account of these events, she ran upstairs and cried for the rest of the night. When she returned to their bedroom, he reportedly menacingly asked her "does it hurt?" Ivana has since retracted this accusation, and one can decide whether the accusation or the retraction is more credible.

Whether one believes Ivana's detailed account or not, Trump does appear to engage in false sexual assault denials (while characterizing his own confessions as mere "locker room talk"). That's hardly surprising, given all of the other distortion and outright lying in which the president engages. Here, however, I want to set aside Trump's broader tendency to lie to focus on his false denials that he has committed sexual assault. He said he was innocent of sexual assault and called his accusers liars. Why in the world would he imagine that comparing himself to Kavanaugh would help exonerate Kavanaugh? 

Why Would Republicans Call Democrats Too Powerful and Angry? It's All They Know

by Neil H. Buchanan

The post-Kavanaugh political conversation has been dominated by Donald Trump's effort -- gleefully supported by Republicans -- to turn the recent confirmation process into a political rallying cry.  As The Washington Post's Paul Waldman explained, the new Republican talking point is a version of what both Kavanaugh himself and Lindsey Graham shouted at the Judiciary Committee's Democrats: You're all power hungry, angry political animals!

The Republicans are now claiming that "mobs" of Democrats swarmed the Capitol and tried to "destroy" a completely honest and decent man.  Dr. Christine Blasey Ford was, at best, mistaken in identifying her attempted rapist (if it happened at all), and George Soros is behind it all.  It plays like a mash-up of the Republicans’ favorite slanders of Democrats and deepens Republicans' claims of victimhood.

There are many angles from which to analyze this new development, obviously including the Republicans' revival of the International Jewish Conspiracy (via Soros), as The Post's Catherine Rampell describes clearly and chillingly.

Here, I will focus on the paranoid aspects of the Republicans' increasingly deranged mindset.  They have, I think, finally reached the point where they will say or do literally anything for political advantage, with no concern whatsoever about whether there is a basis in reality for anything that they say.  They are convincing each other that they are the victims of a swirl of conspiracies, and they have all become true believers.

A Supremely Dark Future

By Eric Segall

Letter to my Granddaughter, 8/24/2045

Dear Jenny,

As you prepare for your first year teaching constitutional law at Clarence Thomas Law School at Liberty University, I thought you might find it helpful to have an accurate historical perspective on some of the subjects you're going to teach. I know you will find some of the law described below to be ancient history, but I can assure you, it wasn't that long ago.

The "All of the Above" Approach to Justice Kavanaugh

by Michael C. Dorf (cross-posted on Take Care)

[Non-spoiler Alert: This essay discusses the tv series The Americans, but it should not ruin the viewing experience of any readers who intend to watch it.]

In the rightly acclaimed tv series The Americans, two Soviet agents live undercover in the US for many years under the identities of Philip and Elizabeth Jennings. They pose as mild-mannered travel agents by day while committing acts of political sabotage and murder by night. They arrive in the US as committed communists in the 1960s, but by the time the show opens in the early 1980s, Philip has grown fond of suburban American life and its creature comforts. The conflict between Philip and Elizabeth over how committed each remains to the cause of global communism fuels much of the show's gripping narrative. By the time the sixth and final season opens, Philip has quit working for the KGB, as he has grown wary of its efforts to undercut Gorbachev's reforms and peace overtures. He has become his cover. Elizabeth, by contrast, remains a true believer.

That division can serve as a metaphor for two polar attitudes of various liberal constitutional lawyers now that Brett Kavanaugh has been seated on the Supreme Court. We were never Soviet communists; we placed our faith in the Supreme Court. Despite all evidence to the contrary (Bush v. Gore; Shelby County v. Holder; Citizens United v. FEC; Trump v. Hawaii; etc.), we still believed in the Court as a potential force for good.

Is Kavanaugh the last straw? A prominent constitutional scholar recently told me that, in light of the Senate's confirmation of Kavanaugh, maybe it's time for us to find a new field -- commercial law, perhaps -- in which the rulings of the Supreme Court play no substantial role. Having lost faith in the Court as a force for good, this scholar considers the path of Philip Jennings. Doing so might well be good for our personal wellbeing, but it would also be a kind of giving up.

Meanwhile, another prominent scholar suggested that, whatever distaste we now have for Kavanaugh and the route he took to the Supreme Court, we need to keep our noses to the grindstone to minimize the damage; although we will now see the most conservative Court in living memory, we have had a half century of a Republican-dominated Court, so it's not exactly as though we lack experience making lemonade from lemons. That's the path of Elizabeth: put your head down, and do your job.

Is there a middle course? Something other than, on one hand, abandoning the field of constitutional law and, on the other, acting as though it's business as usual? Absolutely. To see what options are available, however, we need to be clear-eyed about the coming challenge.

Justice Kennedy's Writing Style and First Amendment Jurisprudence

by Michael C. Dorf

Today I am participating in an all-day conference at Georgia State Law School called Reflections on Justice Kennedy. As you can see from the conference website, there's a great lineup, although unfortunately the journalists (Nina Totenburg, Adam Liptak, and Emily Bazelon) all had to pull out to stay in DC to cover the latest on the Kavenaugh nomination. Organizer (and DoL blogger) Eric Segall put the panel together months ago--before we had learned that Justice Kennedy was retiring--so the timing is simply bad luck. Anyway, the rest of us will do our best to keep it lively. The day starts at 8 a.m., and proceedings will be streamed live here if you want to tune in. It will also be recorded by CSPAN for possible future airing.

From 10:15 - 11:30 I'll be filling in for Bazelon on a panel on the substance and style of Kennedy's prose, along with Jamal Greene and Eric Berger. With Eugene Volokh, I'll be talking about Justice Kennedy's First Amendment jurisprudence from 11:30 am - 12:45 pm. Professor Segall will moderate both of the panels I'm on. Here I'll offer a preview of my remarks.

Kavanaugh and the Manly Man's Culture of Life Without Consequences

by Neil H. Buchanan

[Note to readers: My latest column on Verdict, "The Kavanaugh Travesty: A Roiling Brew of Alcohol and Entitled Self-Righteousness," is now available.  I mention it briefly in my column below, but it is a stand-alone piece that I hope many of you will read and possibly even enjoy.]


Saturday Night Live's lampooning of Brett Kavanaugh's September 27 testimony was hilarious, with Matt Damon perfectly depicting Kavanaugh's extreme anger, childish petulance, and blatant lying.  Even so, they missed an opportunity -- an opportunity that was suggested not by a comedic genius but by CNN legal analyst Jeffrey Toobin.

Toobin pointed out after the hearing that, if Christine Blasey Ford had been the unhinged, shrieking, self-pitying witness that Kavanaugh was, she would have been immediately dismissed for lacking all credibility.  And that observation has led me to imagine how SNL could have brought that alternative reality to life.

Imagine juxtaposing the real testimony from Blasey and Kavanaugh with imagined testimony by, say, Kate McKinnon and Benedict Cumberbatch, with the imaginary Blasey screaming and accusing everyone of a conspiracy while the imaginary Kavanaugh calmly but emotionally lays out his story.  Then they could have had Melissa McCarthy play a purple-faced Senator Amy Klobuchar mirroring Lindsey Graham's operatic performance, screaming at Republican senators and sarcastically attacking their motives.

That alone is an interesting thought exercise, but what would bring the point home would be to then contrast the real cable-news reactions to the testimony with reactions to the alternative reality.  In the real world, people talked about how believable Blasey was, but right-wing pundits were still backing Kavanaugh.  In the alternative world, left-wing pundits would stare ashen-faced into the camera and say, "I can't defend what Blasey just did.  And Klobuchar?  It's over."

It is sometimes difficult to depict the double standard under which gender issues play out in America, so this would have been a particularly helpful way to show that only a man could do what Kavanaugh did and still maintain any public viability.  If a woman had done even a fraction of that, the sexist presumptions that women are too emotional would have kicked into high gear.

But even with Blasey's impressive performance and Kavanaugh's (largely scripted) meltdown, as of this writing it seems likely that Kavanaugh will yet be confirmed to the Supreme Court.  What can we learn from this?

Reflections on Anthony Kennedy Conference

By Eric Segall

Are you tired of the Brett Kavanaugh controversy? If so, maybe take your mind of it by watching via live stream this Friday a symposium I am hosting on Justice Kennedy's career and legacy. The conference has an all star cast (minus a few nationally known reporters who for good cause had to cancel at the last minute because they had to stay in DC due to the aforesaid Kavanaugh controversy).

As you can see from the agenda below, we have a diverse group of law professors (five from the Volokh Conspiracy, two from right here at Dorf on Law, two from Balkinazation and a host of  extremely talented others). The format is conversations not speeches, the issues range from abortion and gay rights to federalism, separation of powers, and freedom of speech and religion, as well as Kennedy's writing style and his role as the median Justice.

Republicans Embrace an Exclusionary Rule for Kavanaugh

by Michael Dorf

Here is a story I was told by a former clerk to the late Chief Justice Rehnquist about the late Chief Justice Burger: One day, the Supreme Court was hearing oral argument in a Fourth Amendment case in which the issue was whether the police had probable cause to search the defendant's home for drugs. Burger was unhappy with the direction the argument was headed, so he interrupted the defendant's lawyer. "What if the police came into your client's house and saw a dead body?" Burger asked. The lawyer replied that if the police lacked probable cause or consent to enter the house, the evidence thereby obtained would be inadmissible at trial, regardless of whether the charge were drug possession or murder. Burger harumphed unhappily. A few moments later he interrupted the lawyer and asked "What if there were two dead bodies?!"

The story was told to me to illustrate that Warren Burger was not exactly the smartest or most logical justice to don a robe at One First Street, NE. Because it's a funny story, I retell it whenever I have the opportunity, even though I am pretty sure it never happened. (I searched oral arguments and could not find anything like this.) Retelling the story is a way of saying that even if this actual exchange never occurred, it has the ring of truth. Burger was a bit of a dope.

I retell this story now to make a different point, however: Burger really really hated the Fourth Amendment exclusionary rule. In that, he was hardly alone. A great many conservatives hate the exclusionary rule. Under Chief Justices Burger, Rehnquist, and Roberts, the Supreme Court has found many exceptions to the exclusionary rule. Conservative justices--and even more so conservative politicians--think it is a technicality. Why should the criminal go free just because the constable has blundered?

That's a legitimate question. I don't want to say that there's nothing to complaints about the exclusionary rule. Indeed, I myself might favor replacing it with some other remedy for Fourth Amendment violations if I thought that some other remedy would work. I just don't think any alternative is realistic.

But here's the thing: Despite widespread conservative dislike of the exclusionary rule, Senate Republicans who are intent on confirming Brett Kavanaugh to the SCOTUS are applying a super-strong version of it.

Net Neutrality

by Michael C. Dorf

I'll be back in a couple of hours (or less) with another Kavanaugh-related post, but for your morning read, check out my new Verdict column. It provides a brief primer on net neutrality, summarizes the DOJ's argument for pre-emption of California's new net neutrality law, outlines three lines of potential response by California, and offers some broader thoughts on how the conservative attack on the administrative state could be good for progressive regulation in the long run. To be clear, my observations about the potential upside of the attack on the administrative state is an effort to make lemonade out of lemons, not my first-order preference.

The Bracing Clarity Provided By the Kavanaugh and Graham Meltdowns

by Neil H. Buchanan

Although it has been a depressing spectacle, the Brett Kavanaugh controversy has provided a few possible upsides.  This seems, for example, to have become a breakthrough moment in which many more people have come to understand why women (and men) who are the victims of sexual abuse do not immediately (or, in many cases, ever) report the crimes.  That alone is a major cultural shift.

On the more cynical side, it is a plus of sorts to watch Republicans shift from a stance that in the recent past would have seen them blatantly saying, "I don't believe her," to now saying essentially, "I believe her, but I don't care."  Just as it is a positive thing for racists to understand that it is bad to admit openly to racism, there is something positive about the social realities that have led to this newer version of Republican misogyny -- especially because their new approach is more obviously cruel, even though it is unspoken.

And of course, we are still facing the reality that either Kavanaugh or an ideological clone will soon be on the Supreme Court.  This means that it might be better for non-Republicans for Kavanaugh to win this battle, because he will be permanently tainted, and because a successful Republican effort to ram him through will be a net plus for the Democrats in the mid-terms.  (It is true that permanently undermining the legitimacy of the courts is bad for everyone but the most powerful, but this is arguably a "get it out in the open" moment in which we might as well admit that we have passed the point of no return.  I take no position on that debate here.)

The most unexpectedly positive (yet still cynical) aspect of this entire debacle, however, is that Kavanaugh provides definitive proof that the Republicans were not "taken over by Trump," which has become the conventional wisdom (and which I have believed to varying degrees at different times over the past two years).

Kavanaugh predates Trump, and thinking about Kavanaugh's very public self-unmasking highlights just how much the Republican party was already the party of Trump, long before 2016.  And when Senator Lindsey Graham decided to go all in on white male grievance and win-at-all-costs hypocrisy, the picture could not have been clearer.

The Kernel of Truth in Brett Kavanaugh's Conspiracy Theory

by Michael C. Dorf

During his prepared remarks at last Thursday's hearing, Judge Brett Kavanaugh claimed that he has been the victim of an "orchestrated political hit" and "smears" emanating from the "left." Republican senators repeatedly echoed this complaint. Yet the vast left-wing conspiracy theory has a glaringly obvious problem. As Senator Khamala Harris made clear in her questioning of Kavanaugh, it doesn't explain why Democrats are targeting Kavanaugh for supposedly false allegations now when they did no such thing to the previous Trump SCOTUS nominee. Here's the exchange:

HARRIS: I’ll point out to you that Judge — Justice now — Neil Gorsuch was nominated by this president. He was considered by this body, just last year. I did a rough kind of analysis of similarities — you both attended Georgetown Prep, you both attended very prestigious law schools, you both clerked for Justice Kennedy, you were both circuit judges, you were both nominated to the Supreme Court, you were both questioned about your record — the only difference is that you have been accused of sexual assault. How do you reconcile your statement about a conspiracy against you with the treatment of someone who was before this body not very long ago? 

KAVANAUGH: I explained that in my opening statement, Senator. Look at the evidence here, the calendars, look at the witness statements, look at Ms. Keyser’s statement.

Note that Kavanaugh does not even try to answer Harris's question. His opening statement does not refer to Justice Gorsuch in any way, not explicitly or implicitly. What he is saying, in essence, is that he thinks the evidence against him does not stand up, which is tendentious but in any event has nothing to do with the question Harris posed: What's his account of Democrats' supposed willingness to make stuff up about him but not Gorsuch and, for that matter, not Roberts or Alito before him? Neither he nor any of the Republican members of the Senate Judiciary Committee attempted to answer that question.

As a service, I'll suggest an answer for them and then explore where it leads.